Why is Montreal appealing a historic ruling on racial profiling by its police?

Last month, a Superior Court judge found the City of Montreal responsible for the "systemic" practice of racial profiling by its police officers.

While the city agreed it should compensate victims, it still wanted to appeal the decision.

Earlier this month, when the city announced its plan to appeal, CBC News spoke with Côte-des-Neiges–Notre-Dame-de-Grâce borough mayor Gracia Kasoki Katahwa. She's also the executive committee member in charge of the fight against racism and systemic discrimination.

She said the city has no problem compensating victims of racial profiling, but it doesn't agree with the judge's ruling that a chunk of that money be distributed in the form of class payments.

That, she said, would lead to large amounts going to lawyers and a provincial fund for class-action lawsuits which, according to her, would be like giving money to a provincial government "that frankly doesn't recognize systemic racism."

"What we want is for the money to directly go to the victims," she said at the time.

But after CBC News obtained a copy of the city's notice of appeal, it was apparent there was much more to it than that. 

Montreal's legal team wrote a scathing 15-page account of the Superior Court ruling, describing it as being "stained with multiple errors" of law.

Here is a breakdown of the reasons behind this appeal and what it could mean for people who were racially profiled by the Service de police de la Ville de Montréal (SPVM). 

Up to $5K per victim

To better understand why the city wants to appeal, it's important to revisit the initial judgment. It was somewhat complex and left major questions unanswered. Consider this: it's still not clear how much money Montreal would need to pay should the judgment stand.

The class-action lawsuit was filed by The Black Coalition of Quebec and Alexandre Lamontagne — a Black man who was racially profiled by Montreal police in 2017.

The lawsuit, which was approved in 2019, was initially pegged as being worth $171 million.

That number came from a mathematical equation: an estimated number of people who were racially profiled by Montreal police multiplied by 5,000. The legal team for the plaintiffs was seeking $5,000 for each victim.

They ultimately scored a partial victory.

In her ruling on Sept. 3, Justice Dominque Poulin established four categories of "racialized people" who have been profiled (court documents state that the term "racialized" refers to Black, Latino, Arab and Indigenous people). 

The first category is for people who were stopped by Montreal police and had their personal information recorded between July 11, 2018, and Jan. 11, 2019. For this group, the judge ordered class compensation of $5,000 per person.

For that same timeframe, the judge outlined three other categories in the ruling:

• People who were racially profiled during a run-in with Montreal police's Éclipse Unit or after a 911 call.
• People whose personal information was not recorded by police after being profiled.
• People who were ultimately arrested or detained after being profiled. 

For these three groups, the compensation for each person ranges between $2,500 and $5,000, but through individual claims, not a class payment. 

In its appeal, the City of Montreal says the judge made a mistake authorizing a class payment for the first category of victims.

Based on what it wrote to the Court of Appeal, it appears the city is worried about paying too much money. 

"The City of Montreal was, and remains, firmly determined in its fight against racism in all its forms and its willingness that justice is served," it says in its notice to the Court of Appeal dated Oct. 2.

"An appeal is necessary to re-establish a delicate balance between the necessity to be at the forefront of these social issues and the need to responsibly manage public funds."

Individual and class payments

In an interview with CBC News, Patrick Martin-Ménard, a lawyer who specializes in class-action lawsuits, declined to weigh in on the merits of the city's appeal.

He did say, however, that class-action compensation generally leads to a much higher price tag for the defendant.

With individual payments, the final cost for the city will depend on the number of people who come forward whose claims are accepted. In a class action, once a final amount is determined, the city would lose the money — presumably tens of millions of dollars in this case — regardless of how many victims come forward.

If there's money left over, it can eventually be transferred to the Justice Ministry fund, which is what Kasoki Katahwa was alluding to.

Martin-Ménard said the burden to prove that you suffered a prejudice in individual cases can be heavier.  

"Sometimes it's a very simple process where someone can essentially fill out a form or sign a sworn affidavit," he said, describing the convenience of class-action lawsuits for victims. 

He said they offer a sense of "predictability" for victims and do a better job of holding people, companies or institutions accountable.

"If you have individual recovery and then you have essentially one per cent of the group that applies for a claim and then 10 per cent of these people end up getting accepted, then it can come down to a very, very small compensation," he said.  

"The goal of the class-action lawsuit is to make justice accessible for the group as a whole."

Calculating number of victims

The City of Montreal also claims the judge made a mistake when she said it was possible, with a fair degree of certainty, to come up with the number of racial profiling victims in the first category who are eligible for class compensation.

The major point of contention here is data from a report in 2019 that was commissioned by the City of Montreal and the SPVM. That report found that Black, Arab, Latino and Indigenous people were much more likely to be stopped by Montreal police officers than white people. 

One of the report's authors, Victor Armony, also testified during the hearings.

In its appeal request, the city says Armony himself admitted that his data has limitations when it comes to determining how much the disparity in street checks for certain groups is due to racial profiling and that his research method can't shed light on the behaviour of a police officer.

The city argues using that calculation method would not only lead to an inaccurate total, it would also eliminate "the means for an individual defence for police officers" who would want to refute allegations that they racially profiled someone.

What's the city's role?

Even though Montreal says it is willing to compensate victims, its legal team claims the Superior Court judge was wrong to say it is directly responsible for racial profiling by its police officers.

In its notice of appeal, Montreal's legal team wrote that the judge didn't take into account the "pioneering efforts" from the city and the SPVM since the 1980s when it came to fighting racism and discrimination.  

The city also argues that racial profiling is a complex phenomenon and any attempt on its part to eradicate it will be a partial solution. It says even if its measures to eliminate racial profiling weren't enough, it can't possibly be held responsible for "the totality of the disparities" experienced by racialized people.

"Even the best efforts deployed by institutions to fight against racial profiling obviously don't imply that no police officer will ever racially profile someone," the city wrote.

It also said the ruling violated the independence of the SPVM and Quebec's Public Security Ministry when it came to using the necessary tools to prevent crime — an argument similar to the one that was just dismissed by the Quebec Court of Appeal in a case regarding police street checks. 

What's next for victims?

For victims who fit the criteria for compensation, the waiting game continues. 

In last month's ruling, the Superior Court judge urged both sides to discuss a framework for compensation.

That process will likely be delayed significantly, according to Martin-Ménard, given the city's appeal.

He says the wait for a ruling can be 18 months for an appeal like this one.

"There are still determinations that will need to be made following up on the judgment in the first instance," he said. "So there's still a long way ahead."

For more stories about the experiences of Black Canadians — from anti-Black racism to success stories within the Black community — check out Being Black in Canada, a CBC project Black Canadians can be proud of. You can read more stories here.