R. c. Maxwell, 2022 QCCQ 9020
[16] Luamba is a young black man who was randomly stopped by police officers while driving, on three occasions, within a period of fourteen months. On each of these occasions, Luamba did not receive a statement of offence. Luamba filed suit against the state, alleging that the common law rule articulated in the Supreme Court Ladouceur decision and the provision of the HSC that authorized random stops of motorists violated his constitutional rights[22] and could not be justified in a free and democratic society, within the meaning of s. 1 of the Charter. According to Luamba, the common law rule and the HSC provision at issue in this case have been diverted from their main purpose, highway safety, to allow for racial profiling. Thus, Luamba asked the Superior Court to invalidate both the common law rule and the HSC provision at issue in this case, pursuant to s. 52(1) of the Constitution Act of 1982[23].
[17] In its analysis, the Superior Court acknowledged that the question raised by Luamba regarding the violation of his right not to be arbitrary detained, guaranteed by s. 9 of the Charter, had already been decided by the Supreme Court in the 1990 Ladouceur decision. In such circumstances, the vertical stare decisis rule requires that the lower court examine the decision rendered by the higher court to determine if the rationale adopted by the higher court (its ratio decidendi) is binding or distinguishable from the matter to be decided by the lower court. If the rationale adopted by the higher court is binding, the lower court must apply that rationale[24]. A lower court is, however, entitled to depart from the rationale adopted by a higher court if a new legal issue is raised, or if there is a significant change in the circumstances or evidence[25]. With that said, in the Luamba decision, the Superior Court found that the rationale adopted by the Supreme Court in the Ladouceur decision was binding. However, the Superior Court found that it was entitled to depart from that rationale because a new legal issue had been raised[26] and because the evidence adduced established a significant change of circumstances[27]. In Short, the Superior Court concluded that it could decide “anew” the issue raised by Luamba regarding the alleged violation of his right not to be arbitrary detained.
[18] After reviewing the evidence, the Superior Court decided that the common law rule and the HSC provision at issue in this case resulted in an arbitrary detention and therefore violated s. 9 of the Charter[28], a finding which is consistent with the Supreme Court decision in Ladouceur. However, the Superior Court found that the common law rule and the HSC provision at issue in this case could not be justified in a free and democratic society, within the meaning of s. 1 of the Charter, a finding that departs from the Supreme Court decision in Ladouceur[29]. Consequently, the Superior Court invalidated the common law rule articulated in the Ladouceur decision and the provision of the HSC that authorized random stops of motorists[30].
[19] A declaration of invalidity made pursuant to s. 52(1) of the Constitution Act of 1982, such as to one made by the Superior Court in the Luamba decision, means that the law, whether it be a common law rule or a statutory provision, is of no force nor effect to the full extent of its inconsistency with the Constitution[31]. Such a declaration has impacts beyond the case in which it was made. As stated by the Supreme Court: “to the extent that the law is unconstitutional, it is not merely inapplicable for the purposes of the case at hand. It is null and void and is effectively removed from the statute books”[32]. In a nutshell, if it were to be applicable to the matter at hand, the declaration of invalidity made in the Luamba decision would mean that the common law rule articulated in the Ladouceur decision and s. 636 of the HSC would no longer exist. Otherwise said, police officers would no longer have the authority to randomly stop motorists outside an organized “spot-check” or “checkpoint” program.
[20] The Luamba decision was however appealed, and its conclusions are suspended pending the appeal. This means that as of today, the common law rule articulated in the Ladouceur decision and s. 636 of the HSC are still in force. Otherwise said, the law still authorises police officers to perform random stops of motorists, even if they are not participating in an organized “spot-check” or “checkpoint” program.
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