Blog post by Julia Singer.
On October 24, 2025, the Nathanson Centre and the Osgoode Hall Law Journal convened an in-person roundtable on racial profiling, policing, and the Canadian Charter of Rights and Freedoms.
In its Fall 2025 issue, the Journal published a special symposium exploring how courts can better approach and remedy racial profiling in policing. The symposium was published in the lead-up to the Supreme Court of Canada’s hearing in the case of Attorney General of Québec v. Joseph-Christopher Luamba. The symposium is comprised of two articles and two replies by Professor François Tanguay-Renaud (Osgoode) as well as by Professor Terry Skolnik (University of Ottawa/Arizona State University), Fernando Belton (Belton Avocats), and Jeanne Mayrand-Thibert (doctoral student, University of Toronto).
The Luamba decision focuses on racial profiling and the constitutionality of roving random traffic stop powers in Québec. Both the Superior Court of Québec and Québec Court of Appeal ruled that the stop power in itself is discriminatory and unjustifiably violates sections 9 and 15 of the Charter. This decision is a first in Canada.
The goal of the roundtable was to foster a constructive discussion about possible paths forward for courts to address racial profiling, using the symposium and decisions in Luamba as background. The authors introduced the issue and the salient points of their articles before opening the discussion. Participants included leading legal academics and practitioners working on the issue.
Professor Skolnik, Belton, and Mayrand-Thibert’s Articles
Skolnik, Belton, and Mayrand-Thibert noted that in many major criminal procedure decisions on racial profiling, courts construe it as violating the section 9 Charter right to be free from arbitrary detention but rarely as a form of discrimination that violates the section 15 Charter right to equality. However, the authors argued that racial profiling should primarily be understood as a section 15 Charter violation and secondarily a section 9 Charter violation.
The authors presented three considerations in support of their argument. Normatively, racial profiling is an instance of discrimination wherein the law and the state impose distinct disadvantages on individuals based on their race. Generalizations regarding immutable personal characteristics, such as race or skin colour, account for why police officers consciously or subconsciously target certain individuals or subject them to worse treatment. Without the primary wrong of discrimination, an individual would not be profiled and suffer the brunt of secondary wrongs, such as infringement of liberty.
Historical and sociological considerations also underpin discrimination as racial profiling’s primary wrongfulness. Racial profiling is the continuation of a legacy of historical discrimination in Canada. It is a systemic, widespread phenomenon that should not be decontextualized. Temporally, limitations on liberty occur after individuals are selected or subject to adverse treatment based on their personal characteristics. The primary wrong of discrimination both occurs prior to the secondary wrong and causes it.
In light of these considerations, the authors underscored the need for a new legal framework for courts to approach racial profiling more efficiently and effectively. The current framework lacks clarity and is applied inconsistently. It is also challenging for individuals to obtain section 24 Charter remedies under the current framework. For example, in only three cases over the past two decades in Québec did the courts find racial profiling occurred and provided a Charter remedy.
The authors highlighted the innovation of the Luamba decision: in addition to applying section 15 of the Charter, the court distinguished between cases where the behaviour of police is contested and cases where the police power itself is contested. The authors contrasted situations where power is exercised wrongfully versus when the power itself is inherently wrongful. In either situation, racial profiling meets the legal criteria to constitute a breach of sections 9 and 15 of the Charter.
Professor Tanguay-Renaud’s Articles
Tanguay-Renaud explained that there are two wrongs that arise from racial profiling in policing. First, racial profiling is an affront to the rule of law. When individuals are detained, arrested, or searched due to racial considerations or stereotypes without reasonable grounds, these actions are illegal. However, courts are currently addressing a broader range of police behaviour under the rubric of racial profiling. In doing so, the prevailing judicial approach to remedying police behaviour puts the rule of law under pressure by normatively overcorrecting police behaviour.
Although the norms that regulate racial profiling and discrimination should not be disregarded, Tanguay-Renaud proposed that courts adopt a more discerning approach that differentiates between: (i) police actions on unreasonable grounds, and (ii) police actions that are anchored in fact about criminality and should not be invalidated due to racial profiling. In Luamba, the law provides police with the absolute discretion to make traffic stops but does not require the stops to be reasonable. This unrestricted legal authorization to detain people is arbitrary under section 9 of the Charter, and it has allowed discrimination on the basis of race to become an endemic part of roadside detention.
Second, Tanguay-Renaud explained that the case law makes a connection between racial profiling and discrimination, but Luamba is the first case where courts analyze the phenomenon through the lens of section 15 of the Charter. Tanguay-Renaud proposed that courts should change their approach to address racial profiling for the core wrong that it constitutes—wrongful discrimination on the ground of race—which section 15 of the Charter expressly prohibits. This complementary paradigm would enable courts to remedy arrests and detentions tainted by racial profiling even where they should not be declared unlawful for rule-of-law reasons. Additionally, this paradigm would allow courts to address a much broader scope of racial profiling than that which arises in the context of arrests and detentions as well as open the door to a more remedial approach.
The Discussion
The discussion began with a question about whether and how the proposed framework can become a national judicial standard that will produce substantive justice. Skolnik responded that the Charter remedies for racial profiling under the current framework are insufficient. There should be broader, more systemic remedies, but the law develops slowly and incrementally.
Belton mentioned that remedies vary, and provided the example of a case brought under section 9 of the Charter where the court waived the fees as a remedy. Under section 15, however, the court’s findings would have been different. Mayrand-Thibert added that many encounters with police are low visibility, and the lack of evidence creates challenges for the court. Tanguay-Renaud concluded that courts alone cannot address racial profiling; the legislature must contribute as well.
The discussion continued with an exploration of what makes section 15 of the Charter a more pragmatic solution in the present moment given that it is common for courts to overlook section 15 jurisprudence in cases where section 15 is raised along with another section. Tanguay-Renaud observed that the criminal justice system is rife with discrimination, and the SCC is willing to address this issue through a section 15 lens in Luamba.
Skolnik noted that if, in Luamba, the SCC accepts the role of section 15 of the Charter in criminal procedure cases, the decision will have a national impact. The evidentiary record in Luamba is so extensive that the SCC cannot exclude it. Consequently, the Court may acknowledge the importance of structural remedies, which require much more criminal justice data than is currently available.
Mike Siméon, counsel for Mr. Luamba, provided additional insight into the case. According to him, Luamba did not initially focus on the issue racial profiling, but rather on the issue of arbitrariness. The lack of any legal criteria that police need to respect when making a traffic stop leads to racial profiling since police act upon biases that materialize in certain stops that do not end up being truly random. At the SCC, Siméon’s challenge will be convince the Court that there is sufficient evidence to rethink its precedent and to adopt a framework that considers section 15 of the Charter.
