The appeal of the Yergeau judgment will oppose the rights of the person to the rights of the police
A judge of the Superior Court of Quebec has issued a decision prohibiting random interceptions.
Is it possible to end racial profiling without prohibiting the police from stopping anyone without a valid reason?
It is this delicate question that the Court of Appeal – and most likely the Supreme Court after it – will be called upon to decide in the coming months following one of the most significant decisions of 2022, which Justice Michel Yergeau, of the Superior Court of Quebec, rendered before retirement.
Police forces say loud and clear that they need these random interceptions to ensure road safety and to fight various forms of crime. The president of the Association of Quebec Police Directors and director of the Laval Police Service, Pierre Brochet, even hinted on all the platforms that banning them will increase the road toll.
The Superior Court of Quebec has overturned a case law that authorized roadside interceptions without valid reason.
But, in his imposing 170-page decision handed down last October, Judge Yergeau ordered an end to these random stops because they do indeed result in racial profiling and because the violation of the rights of those who are victims of it is no longer tolerable. While acknowledging that the police are seeking to eliminate profiling, the judge concludes that they simply cannot do it and that they will not succeed more if they are not prevented to arrest anyone at any time.
The words of the magistrate deserve to be returned to. On the existence of racial profiling, following evidence showing that black people are at least twice as likely to be arrested as white people, the judge was it couldn't be clearer.
“Racial profiling does exist. This is not a lab-built abstraction. This is not a figment of the imagination. This is a reality that weighs heavily on black communities.
As for the training and education of police officers, there is no evidence of the results of these efforts in terms of reducing unjustified traffic stops targeting Black communities, and he added that the rights guaranteed by the Charter can no longer be left in the wake of an unlikely moment of policing epiphany.
Finally, the third major axis of his judgment concluded that it is impossible to conclude that there is a functional link between this specific type of police arrest which is roadside interception without real reason and the reduction the number of serious accidents, cases of impaired driving or drivers driving without a driver's license. It is therefore impossible for the Court to establish how, taken in isolation, this specific form of arrest improves the road safety record.
And it's x27;this is where the shoe pinches for the police argument.
“When Judge Yergeau says that the Prosecutor has not proven that it will save lives, he is right. The problem with police forces is that they don't keep statistics. »
— Stéphane Wall, recently retired SPVM sergeant
He notes, for example, that in 2021, Montreal police intercepted 1,300 impaired drivers, but that the SPVM did not count how many of these interceptions were random interceptions.
It is certain that, out of 1300 interceptions for impaired abilities, there is a 5, 10, 15% which are random interceptions, he advances, knowing full well that &x27; he cannot support this assertion.
There are no statistics to prove that we save lives, he drops in an interview with The Canadian Press. Now, we hope that between now and the call, the police forces will do some introspection and will be able to compile to come up with concrete figures.
This appeal, the Minister of Public Security, François Bonnardel, filed on the deadline, November 25, repeating almost word for word the words of Prime Minister François Legault, who, the day after the decision, on October 26, asserted “Let the police do their job”. But Mr. Bonnardel's statements show that he would like to achieve the impossible by sparing the goat and the cabbage.
We cannot accept the status quo in racial profiling, Mr. Bonnardel said at the time, adding however in the same breath that we consider it unjustified to abolish such an important tool for police forces [… ], but we believe that there is a way to use it better.
This notion of an indispensable tool, Stéphane Wall defends it with conviction, first in terms of impaired driving. There are habitual alcoholics who ''give the ball,'' that they are used to tolerating alcohol. Random interception sometimes brings us surprises in terms of blood alcohol levels.
Random interception sometimes brings surprises when it comes to alcohol in the blood, assures a policeman retired.
His other point is that of the investigation of permits, license plates and insurance. It is known that people who are notified by the SAAQ that their license is sanctioned [unpaid fines, repeat offence], these people will not drive their own vehicle.
He explains that patrol officers will often follow a car, send the license plate number to the Quebec Police Intelligence Center (CRPQ) to receive the identity of an owner who does not match the driver. , for example a car whose owner is a 50-year-old man, while the driver seems to be 22. However, Judge Yergeau must be given reason here: such use of random stops can hardly be invoked to demonstrate any improvement in road or public safety.
Director Brochet, in an interview with Paul Arcand on 98.5 FM on October 27, added this other element: When we make random interceptions based on impaired faculties, we may come across subjects of #x27;interest and we may detect firearms; 45% of firearms seized in Laval were seized during interceptions. It leads to criminal arrests in other fields of activity.
The public safety argument certainly carries weight from this angle.< /p>
But Judge Yergeau, for his part, concludes that the progress made by the police is no match for the violations of the rights of citizens of the black community. Testifying at the tabling of the annual report of the Commission des droits de la personne et des droits de la jeunesse (CDPDJ), its vice-president, Myrlande Pierre, affirmed that this judgment is really in line with several key recommendations formulated by the Commission in the past. It is an additional lever to fight against the phenomenon of racial profiling […] which will participate in eliminating, countering racial profiling in our society, of which racialized people, racialized young people, young people from black communities.
At his side, the President of the Commission, Philippe-André Tessier, added that in no case did the Commission or the judgments of the Human Rights Tribunal or the Court of Appeal or even Supreme Court rulings that recognize notions of racial profiling are not intended to prevent anyone from doing their job of stopping motorists at drink-driving roadblocks or people committing Code violations road safety. […] Judge Yergeau clarifies very correctly that it is not a question here of preventing work, but rather of putting an end to a discriminatory phenomenon that is racial profiling.
The Commission's report indicates that it opened 69 files for alleged racial profiling in 2021-2022, a decrease compared to 2020-2021 (86 files) and 2019-2020 (76 files). These data, however, evolve in sawtooth and it is difficult to draw a trend. But the CDPDJ is preparing, in collaboration with the directors of major police forces, training on racism, racial profiling and human rights in general, which will be offered next year. Ms. Pierre says it was very well received.
Stéphane Wall believes in the benefits of this training. I can confirm that in Montreal, there is a very clear improvement and that the majority of police officers do not do profiling. They do criminal profiling and they also do background checks to make sure drivers are a match, or they're not drunk.
But he also recognizes that there is still a minority of police officers who practice racial profiling, that is to say that they will almost systematically intercept people who have black skin. It exists. And it was precisely the inability to put an end to the racial profiling of this minority – and which is also found in several other police forces – which led the judge to remove from the forces of the x27;order the right to arrest anyone, anytime, for no reason.
Could he have done it differently? Stéphane Wall believes that there are ways to get there, beyond training, which clearly is not enough. One way, he says, is to improve the CRPQ.
The reality is that there are many complaints in police ethics which are linked to multiple interceptions, for example black or North African drivers who will be intercepted three or four times over a period of six months. When you get intercepted several times, what we call multiple interceptions, it's normal for you to say: ''That doesn't make sense, is are they going to drop me?''
“If the police had the possibility of creating [at the CRPQ] a history of plates on each of the vehicles that they are going to investigate, they could see that such and such a vehicle was investigated, that it is the son of the owner who was driving and that everything is in order. By creating histories, we would be able to reduce multiple interventions. »
— Stéphane Wall, recently retired SPVM sergeant
Would that be enough? It's hard to answer such a question, but of the 11 victims of racial profiling who testified before Judge Yergeau, 8 were driving their own vehicle and not someone else's. However, a history of interceptions at the CRPQ would effectively alert the police that the vehicle they want to intercept has already been intercepted and there was no reason to do so. But it would also mean that these drivers would have already been intercepted for nothing.
Joseph-Christopher Luamba was accompanied by his parents while in court. (Archives)
We will therefore have to see how the case will be debated in the Court of Appeal, its decision and the appeal that will undoubtedly follow. On the one hand, it is reasonable to believe that if the original plaintiff in the file, Joseph-Christopher Luamba, a student of Haitian origin who decided to take the case to court after three wrongful interceptions in one year, were unsuccessful, it would go all the way to the Supreme Court with the support of the Canadian Civil Liberties Association.
On the other hand, if the Court of Appeal upheld the decision, the Attorney General of Quebec or the Attorney General of Canada, or both, would most certainly go to the Supreme Court because Judge Yergeau did not invalidate section 636 of the Quebec Highway Safety Code which allows these random stops, nor the 1990 Supreme Court Ladouceur decision on which all Canadian police officers rely to engage in this practice.