The Quebec Court of Appeal has upheld a historic and landmark lower court ruling that found random vehicle stops by police officers can lead to racial profiling.

The case, PG du Québec v. Luamba, provides judicial recognition that racial profiling is not an occasional event, but a daily reality for the Black, Arabic and Indigenous communities. The case revolves around a provincial law, in article 636 of Quebec’s Highway Safety Code (H.S.C.), which gives police officers the power to stop vehicles at random and without any specific reason. The Quebec appellate decision confirms the lower court ruling that giving police such power violates the legal and equality rights guarantees in the Canadian Charter of Rights and Freedoms. While art. 636 is supposed to be applied evenly to all drivers, the trial court found that Black drivers are targeted disproportionately. That makes the Charter violations too serious for the law to be upheld under the justifiable limits clause.

Novel constitutional issues

The police power to pull over vehicles was validated by the Supreme Court of Canada in the 1990 case of R. v. Ladouceur. So why was the issue of arbitrary traffic stops back in court? The Quebec appellate judges found that Luamba raised novel constitutional issues. Ladouceur had examined traffic stops with regard only to the protections against arbitrary detention in s. 9 of the Charter, whereas Mr. Luamba challenged his traffic stop not just under s. 9, but also under s. 7, which guarantees the right to life, liberty and personal security in accordance with the principles of fundamental justice, and s. 15(1), which says everyone has a right to equal protection and equal benefit of law, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

What’s more, while the Supreme Court in Ladouceur found that arbitrary stops violated s. 9 of the Charter, it found that the infringement was justified under s. 1. But that case was heard in 1990, back when qualitative, quantitative, statistical and expert evidence about the risk of racial profiling that was not available when Ladouceur was before the courts.

Indeed, the Court of Appeal said there was no evidence on the record that art. 636 H.S.C. makes roads safe. By contrast, the deleterious effects of art. 636 H.S.C. on Black drivers are numerous and serious, including physical and mental health problems, feelings of exclusion, marginalization and “over-judicialization,” loss of confidence in the police and justice system, civic disengagement, perpetuation and reinforcement of racist stereotypes.

Here are four takeaways from the 2024 case, which upholds the 2022 Quebec Superior Court ruling, Luamba v. PG du Québec.

Racial Profiling and the Charter: The Court of Appeal agreed with the Superior Court's finding that random vehicle stops under art. 636 H.S.C. lead to racial profiling, particularly against Black drivers. The PG du Quebec did not challenge the trial level finding that the random stops violate s. 9, so the appellate court didn’t need to analyze whether the law violated s. 7. The high court did, however, conclude that the law also violates s. 15(1).

Infringement of Rights: The Court concluded that the rule allowing random stops creates a distinction based on race and perpetuates disadvantages for Black people. That means the infringement of the legal rights in s. 9 and equality rights in s. 15(1) cannot be justified under s. 1, which allows some Charter rights to be limited if doing so can be shown to be reasonable in a free and democratic society.

No Impact on Road Safety. While the objective of random stops is to ensure road safety, the Court found no substantial evidence that these stops effectively contribute to this goal. Instead, the prejudicial effect of art. 636 H.S.C. reinforces, perpetuates and accentuates the historic and systemic disadvantage it causes Black people.

Declaration of Invalidity: The Court declared article 636 H.S.C. invalid but suspended this declaration for six months to allow time for adjustments. This means that while the power of Quebec police to make arbitrary vehicle stops is recognized as unconstitutional, art. 636 will remain in effect temporarily.

The Quebec Court of Appeal's ruling is a step towards addressing systemic racial profiling in traffic stops. It highlights the importance of protecting individual rights and ensuring that laws do not disproportionately impact marginalized communities. This decision may lead to significant changes in how police conduct traffic stops in Quebec and potentially across Canada.

Karine Joizil and Sajeda Hedaraly of McCarthy Tétrault’s Montreal office, along with our former colleague Bianca Annie Marcelinrepresented intervenors, the Canadian Association of Black Lawyers.