Dutil, Gagné, Weitzman

SUMMARY

This summary does not form part of the Court’s judgment, does not replace the reasons set out in the judgment and must not be used in legal proceedings.

     The Court’s judgment rules on an appeal from the decision rendered on October 25, 2022, by the Superior Court (the Honourable Justice Michel Yergeau), which determined that the power of police officers to stop a road vehicle randomly, outside of an organized spot check program and without any grounds to believe or suspect that an offence has been committed (“traffic stop with no required grounds”) – a power confirmed by the Supreme Court in R. v. Ladouceur, [1990] 1 S.C.R. 1257 (“Ladouceur”), and codified in s. 636 of the Highway Safety Code (the “HSC”) – is unconstitutional.

The Attorney General of Quebec (the “AGQ”) argues that the trial judge committed numerous errors requiring the Court’s intervention. First, the judge allegedly erred in concluding that the common law rule established in Ladouceur and s. 636 HSC (the “challenged law”) give rise to racial profiling. Second, the AGQ posits that the judge was wrong in deciding that it was open to him to reconsider the Supreme Court’s ruling in Ladouceur. Third, he argues that the judge mistakenly concluded that the challenged law unjustifiably infringes s. 9 of the Canadian Charter of Rights and Freedoms (the “Charter”). Fourth, the judge allegedly erred in deciding that the challenged law unjustifiably infringes s. 7 of the Charter. Fifth, he allegedly erred in concluding that the challenged law unjustifiably infringes s. 15(1) of the Charter. Sixth, the AGQ submits that the judge was mistaken in declaring the challenged law inoperative and in suspending the effective date of this declaration for six months.

The Court’s judgment addresses each of these grounds. It also considers whether the ruling in Ladouceur actually recognized a common law police power to make traffic stops with no required grounds.

I. Did the ruling in Ladouceur recognize a common law police power to make traffic stops with no required grounds?

The Court answers this question in the negative. In Ladouceur, the Supreme Court had to determine the constitutionality of a statutory provision in the Ontario Highway Traffic Act that authorized random traffic stops from a patrolling police vehicle. To rule on the matter, it was not necessary to determine whether there existed a common law police power equivalent to that conferred by the impugned provision. Ladouceur did not expand the common law police power that had been recognized in Dedman v. The Queen, [1985] 2 S.C.R. 2 (power to make random traffic stops as part of an organized spot check program). Consequently, the Court modifies the trial judgment’s conclusions regarding [translation] “the common law rule established in Ladouceur”.

As the parties to the present dispute did not ask the Court to determine whether there does indeed exist a common law police power to make traffic stops with no required grounds, the Court is not ruling on this matter. The Court’s analysis is limited to s. 636 HSC.

II. Did the judge err in concluding that the challenged law gives rise to racial profiling?

The judge did not err in concluding that racial profiling in traffic stops with no required grounds is an effect of s. 636 HSC as opposed to a consequence of the improper application of this provision by police officers. Thus, it is s. 636 itself that is the source of the alleged Charter violations.

Section 636 HSC contains no criteria or standards that could guide the work of police officers in selecting which drivers to stop. There are no objective reasons nor any parameters that could steer them in the exercise of their discretionary power. The evidence showed that even though s. 636 does not expressly authorize traffic stops with no required grounds based on racial profiling, it necessarily has the effect of allowing racial profiling to permeate the exercise of the police power it confers. Racial profiling often results from subconscious conduct rather than overt racism. It can also exist despite the fact that the police conduct may be justified without recourse to race-based negative stereotypes. The data available since the Ladouceur decision reveals that where traffic stops with no required grounds are conducted for reasons related to driving a car (i.e., verifying the driver’s licence, proof of insurance, sobriety of the driver and condition of the vehicle), such reasons are not sufficient to prevent racial profiling in this type of interception.

III. Did the judge err in deciding that it was open to him to reconsider the ruling in Ladouceur?

The judge was entitled to reconsider the Supreme Court’s ruling in Ladouceur. That decision examined only the constitutionality of s. 189a(1) of the Ontario Highway Traffic Act in light of s. 9 of the Charter. In the present case, the respondents’ ss. 7 and 15 Charter claims therefore constitute new legal issues.

The judge was bound by Ladouceur as regards the s. 9 Charter claims and the justification under s. 1 for the infringement of s. 9. It was open to him, however, to reconsider this precedent because the exceptions to the rule of vertical stare decisis – a new legal issue and a change in circumstances or evidence that fundamentally shifts the parameters of the debate – applied. He was entitled to conclude that the new legal issue requirement had been satisfied, as the matter before him asked the question [translation] “from a different perspective by relying on changes in the data and in the context” (trial judgment, para. 145).

Additionally, in light of the evidence as a whole, the judge was justified in concluding that racial profiling is a new reality that fundamentally shifts the parameters of the debate. Current literature and the evidence presented provide a picture of the situation that differs from the situation described by the majority in Ladouceur. While the risks of racial profiling in traffic stops with no required grounds may have been contemplated when the ruling in Ladouceur was handed down, they were not sufficiently known at that time.

IV. Did the judge err in concluding that the challenged law unjustifiably infringes s. 9 of the Charter?

Like the trial judge, the Court concludes that s. 636 HSC infringes s. 9 of the Charter and that the infringement is not justified under s. 1, but it does so for reasons that differ from those of the trial judge (as regards the rational connection test).

The infringement of s. 9 of the Charter is admitted: the stop authorized by s. 636 HSC is a form of arbitrary detention.

This infringement is not justified under s. 1. The first two criteria for determining whether an infringement is justified have been met. Section 636 HSC has a pressing and substantial objective – namely [translation] “to ensure highway safety, reduce the number of offences and serious road accidents, reduce the number of deaths related to such accidents, reduce the compensation costs for public and private insurers, combat drunk driving […]” (trial judgment, para. 692). Moreover, there is a rational connection between this objective and the power to make traffic stops with no required grounds.

The minimal impairment test, however, has not been satisfied. The AGQ offered no argument or evidence of minimal impairment, relying essentially on the majority’s conclusions in Ladouceur. But the observations on which those conclusions were based can no longer be accepted today. Moreover, the possibility of envisaging another legislative provision that would allow for substantial achievement of the objective of s. 636 HSC, while limiting potential racial profiling, shows that this is not a minimal impairment. The evidence does not establish that traffic stops with no required grounds are more effective than roadblocks. In addition, police officers have other powers to intercept drivers for highway safety or public safety considerations.

Similarly, the balancing of salutary benefits and deleterious effects test has not been satisfied. The judge correctly noted the lack of compelling evidence of the beneficial effects of s. 636 HSC. By contrast, s. 636 has numerous and serious deleterious effects.

V.  Did the judge err in concluding that the challenged law unjustifiably infringes s. 7 of the Charter?

There is no need to answer this question. Insofar as s. 9 is a more specific and complete illustration of the right guaranteed under s. 7 in the context considered in the case at bar, the Court’s finding that s. 636 HSC unjustifiably infringes s. 9 renders a separate analysis under s. 7 redundant.

VI. Did the judge err in concluding that the challenged law unjustifiably infringes s. 15(1) of the Charter?

The judge correctly concluded that s. 636 HSC infringes s. 15(1) of the Charter and that the infringement is not justified under s. 1.

While s. 636 HSC appears neutral on its face, its effect creates a distinction based on a prohibited ground set out in s. 15 – namely, race. Section 636 has a markedly disproportionate impact on Black drivers (as compared to other groups of drivers, including White drivers). The uncontradicted evidence shows how racial profiling taints police interventions such as traffic stops with no required grounds. This evidence is supported by government commission reports and the case law. It is also bolstered by numerous studies showing the over-representation of Black drivers in discretionary stops.

The evidence also shows that the detrimental effect of s. 636 reinforces, perpetuates and accentuates the disadvantage (historic and systemic) experienced by Black persons. Historically, Black communities have had different perspectives and experiences with policing practices such as street checks and “random” traffic stops. This context must be taken into account, particularly since the subjective experience of Black persons repeatedly subjected to street checks or traffic stops by the police tends to be minimized. Yet, expert evidence, scientific literature and government commission reports show that racial profiling in police interventions has multiple and profound consequences for its victims. The judgment in R. v. Le, 2019 SCC 34, supports these observations. Racial profiling also has the effect of perpetuating and reinforcing discrimination against Black persons. The s. 15(1) infringement has therefore been established.

This infringement is not justified under s. 1 of the Charter. As mentioned above, although the pressing and substantial objective and rational connection tests have been satisfied, the same cannot be said as regards minimal impairment and the balancing of the salutary benefits and deleterious effects of s. 636 HSC.

A few comments are warranted here regarding the balancing of salutary benefits and deleterious effects in connection with the infringement of the right to equality. Section 636 HSC has numerous and serious negative effects on Black persons, and these effects cannot be taken lightly. Racial profiling and the “over‑street checking” of Black persons also have a negative impact on society as a whole. By contrast, the salutary effects of s. 636 are tenuous. Although, from a strictly logical point of view, stopping a single drunk or unlicensed driver is liable to contribute to highway safety by “removing” this driver from the road, one might wonder how many “innocent” drivers will have to be stopped to “catch” one delinquent driver.

VII. Did the judge err as to the remedy?

The Court answers this question in the negative. As the Court has concluded that racial profiling in traffic stops with no required grounds results from s. 636 HSC, that such provision infringes ss. 9 and 15 of the Charter and that this infringement is not justified under s. 1, the appropriate remedy is a declaration of invalidity based on s. 52(1) of the Constitution Act, 1982. The AGQ has submitted no grounds that justify suspending the effective date of the declaration of invalidity beyond the suspension period decided at trial.

* * *

For these reasons, the Court allows the appeal in part, with legal costs against the AGQ. The trial judgment is reversed in part, for the sole purpose of modifying paragraphs 866 to 870 as follows:

[translation]

[866]  GRANTS, in part, the re-amended originating application;

[867]  DECLARES that the conditions for reconsidering the ruling in R. v. Ladouceur, [1990] 1 S.C.R. 1257, have been met;

[868]  DECLARES that section 636 of the Highway Safety Code infringes the rights guaranteed by sections 9 and 15 of the Canadian Charter of Rights and Freedoms and is not demonstrably justified in a free and democratic society, such that it is therefore invalid;

[869]  DECLARES that section 636 of the Highway Safety Code is inoperative;

[870]  SUSPENDS the effective date of the declaration of inoperability for a period of six months from the notification of the notice of judgment, with the exception of any court case in which section 636 of the Highway Safety Code has been challenged and in which the proceedings are still ongoing;

Text of the decision: PG Quebec c. Luamba