Major Superior Court decision on racial profiling

Major decision in matters of racial profiling: the Superior Court orders the end of interceptions of motorists without real reason. This arbitrary power serves for certain police officers as a “safe conduct for racial profiling against the black community”, concludes the judge.

Louis-Samuel Perron
The Press

Tommy Chouinard
The Press

Vincent Larin
The Press

“Racial profiling does exist. It is not a laboratory-constructed abstraction. It is not a view of the mind. It manifests itself in particular among black drivers of motor vehicles. The rights guaranteed by the Charter cannot be left any longer in tow of an improbable moment of epiphany of the police forces”, asserts judge Michel Yergeau in a 170-page decision-river made public on Tuesday.

Judge Yergeau thus declared that the rule of law and the legislative provisions authorizing traffic stops without real reason violated the rights of citizens under the Canadian Charter of Rights and Freedoms. To avoid “forcing” too rapid a change, the judge nevertheless allows a six-month delay in the application of his decision.

“As a society, we cannot wait for a part of the population to continue to suffer in silence in the hope that a rule of law will finally receive from the police services an application that respects the fundamental rights guaranteed by the Charter. Canadian,” said the judge.

The magistrate specifies, however, that his judgment is neither a report of a commission of inquiry into systematic racism, nor a study of all forms of racism within the police forces. “Racial profiling can sneakily creep into police practice without police officers in general being driven by racist values,” also nuanced the judge.

A 22-year-old black man, Joseph-Christopher Luamba, is behind this major decision. The Montrealer had gone to the Superior Court in the hope of having the random arrests of motorists by the police declared unconstitutional.

The student of Congolese origin was indeed arrested without any reason three times in just one year between 2019 and 2020, reports the judge. Other black people testified at trial to being similarly stopped while driving. The expression “driving while black” [conduire en étant Noir] “translates this reality well”, writes the judge.

“As trivial as they may seem, these roadside interceptions prove intolerable to those concerned since they are based on appearances and more or less conscious prejudices associated with the color of their skin rather than on a road safety objective”, insists the judge.

30 years later

There is no law as such that allows a police officer to intercept a person without reason. This power essentially stems from two Supreme Court decisions handed down some 30 years ago. The highest court in the country then concluded in the Ladouceur case – split 5 to 4 – that random stops could be justified under the Charter given the number of road accidents caused by impaired faculties.

However, things have changed in 30 years. Racial profiling is a “significant new social fact” that was unknown to the Supreme Court when it expanded police powers, although the minority had anticipated it, explains Justice Yergeau. Thus, the Ladouceur judgment leads to a “dead end” in matters of racial profiling.

“The discretionary power to temporarily deprive a citizen of his liberty in this framework is the most arbitrary and the least filtered there is. Reduced to its simplest expression, it is based only on intuition since it requires neither real reason nor suspicion. It is the product of an unfathomable mental process. […] Racial profiling is thus exercised in an insidious way, without the police officer being driven by racist values, ”analyzes the judge.

Despite the recent grip of the problem of racial profiling by police services, it is reasonable to think that this “culture change” will take at least a full generation before racial profiling occurs in traffic stops without real reason. “the bitter memory of a bygone past”, maintains the judge.

“We must not harbor illusions”, concludes the judge. His decision will not end overnight and “by magic to racial profiling”. “Over time, society will only be better off,” he concludes, on a note of hope.

A project that died on the soap opera

In December 2021, Geneviève Guilbault, Minister of Public Security at the time, tabled a bill on the police aimed, among other things, at Quebec establishing “guidelines (which may) relate in particular to the absence of discrimination in police activities”. However, this legislative text has never been studied by the National Assembly. It therefore died on the order paper when the House was dissolved and the general election called.

This provision of Mr.^me Guilbault was intended to be a response to a recommendation from the Anti-Racism Action Group that Prime Minister François Legault created in June 2020 in the wake of the death of American George Floyd. In its report tabled in December 2020, the action group, made up of three ministers and four Caquiste deputies, asked to “put an end to cases of police discrimination”.

“Despite all the efforts undertaken, the issues of racial profiling during police arrests and police violence linked to racism still seem to be present and continue to arouse many reactions in the circles that are victims of it”, can we read in the report. He added that it is necessary “to make the prohibition of random police arrests mandatory”.

“The Ministry of Public Security has adopted a police practice prohibiting random police stops,” the document explains. This practice prohibits all arrests based on race, color, ethnic or national origin, religion and social condition. In other words, for an arrest to take place, there must be a clear reason on the part of the police. This practice does not have the force of law. The Action Group recommends that it be made mandatory, by integrating it into the police code of ethics. It will thus be possible to sanction in ethics or discipline a police officer who does not respect it. This measure will significantly reduce racial profiling, if not eliminate it. »

One of the members of the action group was Christopher Skeete, now Minister responsible for Anti-Racism. The new Minister of Public Security is François Bonnardel.

Hope for changes

Himself a victim of racial profiling by the Police Department of the City of Repentigny when he was intercepted driving his BMW in 2017, François Ducas was delighted Tuesday with the decision rendered in Superior Court. Although the teacher had received compensation for moral damages after taking his case to the Human Rights Tribunal, he says he has not been able to completely turn the page so far. “I was convinced that nothing was going to change, but here, I hope that there will be a real change, for young people, for my children, who will not have to go through what I went through. “, he said Tuesday evening.

Major and historical

The League of Blacks of Quebec congratulated Judge Yergeau on Tuesday for this “historic” decision. “It’s major, it’s a first in Canadian and Quebec history,” exclaimed its president, Max Stanley Bazin. Things had to change, a kick had to be given in the anthill to denounce the inequality of road interventions. The organization has filed a $171 million class action lawsuit against the Service de police de la Ville de Montréal (SPVM) for racial profiling, a case that should be heard within the next year, said Mr. Stanley Bazin. In light of the judgment rendered on Tuesday, “it looks very good”, he believes.

A test for Quebec and Ottawa

The Director General of the Center for Research-Action on Race Relations (CRARR), Fo Niemi, also welcomed this “great victory for the fight against racial profiling”. What happens next, whether the governments of Quebec and Canada will appeal the case, will say a lot, he says, about their intentions to really tackle this issue. “This will be a very, very important test for the Quebec government of its commitment to combat racial profiling. Often, police interventions lead to an escalation and it mainly targets black men. We know too many cases, unfortunately, ”explains Fo Niemi.