Author ORCID Identifier

François Tanguay-Renaud: 0009-0001-0257-5153

Document Type

Article

Publication Date

10-15-2025

Keywords

Luamba, Section 1, Canadian Charter of Rights and Freedoms, arbitrary power, prescribed by law, minimal impairment, rule of law, Lon Fuller, Joseph Raz, R. v. Hufsky, R. v. Ladouceur, R.v. Therens

Abstract

In the 2022 case of Luamba c Procureur général du Québec, the Superior Court of Quebec held that a police power to conduct roving random stop of motorists for the purpose of checking for traffic offences infringed ss 9 and 15 of the Canadian Charter in ways that were not saved under s 1. This decision was upheld by the Court of Appeal (“QCCA”) and the Supreme Court (“SCC”) has now granted leave to appeal to the AG Quebec.

In this comment, I seek expose two blind spots in the s 1 analysis carried out by lower courts: (1) They omit to consider the question of whether a section 9 infringement resulting from a power conferring untrammelled—and, thus, arbitrary—discretion to detain any vehicle is prescribed by law under section 1. I argue that it is not. (2) When carrying out its analysis under the minimal impairment branch of the section 1 analysis, the QCCA does not discuss the possibility of randomization algorithms that would continue to allow for random checks while not being problematically arbitrary or discriminatory. Instead, the decision points to other allegedly less impairing alternatives that, when scrutinized, are not so. So, consideration of the logical possibility of randomization algorithms as less impairing alternatives—in the sense of alternatives that are not problematically arbitrary or discriminatory—seems imperative, if less impairing alternatives allowing to pursue the pressing and substantial purposes of the legislation in question indeed exist.

Comments

"Forthcoming in the Criminal Reports (CRs) Pre-publication version – 15 October 2025."

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