On the morning of February 19, 2020, Santina Rao will be in the Halifax provincial court for charges arising out of her arrest at Walmart on January 15, 2020, which many – including me – see as the result of racial profiling. The proceedings continue despite public pressure on the Crown to drop the charges, including a petition signed by approximately 6,000 at last count.
What happened to Rao case raises a number of issues, including human rights, culpability of the police and Walmart and the public interest in withdrawing charges that stem from racial profiling.
The incident happened on January 15, 2020, when Santina Rao, a Black single mother with two young children, was shopping at Walmart at the Halifax Shopping Centre when she was wrongly accused of shoplifting, and violently arrested by Halifax Regional Police. She was left with a black eye, a broken wrist, concussion and trauma from the incident. In the end, she was NOT arrested for shoplifting, but for causing a disturbance, assault causing bodily harm to an officer, and resisting arrest. Interestingly, the charges were not sworn until January 30, two weeks later.
A good description of the events can be found in a story about the events in the Halifax Examiner, by El Jones
Rao was shopping with her two young children, age 3 and 15 months. She paid for $90 worth of items in the electronics department. The cashier told her she couldn’t pay for her produce in that department because it had to be weighed. On her way to the checkout, she placed the bag with her items on her stroller, and stopped in the toy aisle to buy her daughter a Barbie. She planned to pay for her purchases at the check-out before she left the store.
In the toy aisle, in front of her young children Rao was approached by three floor walkers and two police officers and accused of stealing items and concealing them. She says she offered them to search her bags and even the stroller.
Instead, the officers continued accusing her of theft. When she became stressed and agitated in response to their questions, they attempted to arrest her for causing a disturbance and called for backup. Rao was accused of causing a disturbance because she became angry and protested being accused of being a thief.
In the end, Rao said six cops were surrounding her.
Rao suffers from trauma from experiencing violence in her life, and she says that she let the officers know that she has PTSD. When the officers began grabbing her with her children watching, she explains she reacted out of terror. She alleges that as she became upset with her treatment by police and protested her innocence, she was told she was making herself look “worthless” in front of her daughter.
One officer tried to grab her child and pull her away. When Rao tried to protect her daughter, she says the police escalated the violence against her.
The rest of the story by El Jones covers much of the other context and details of how events unfolded.
On Friday January 17, there was a late afternoon rally to support Rao. The dozens in attendance called out Walmart for racial profiling, called out the police for the same reasons and for police brutality and demanded police to drop the charges against her.
Public pressure and attention led to the province’s Serious Incident Response Team (SIRT), a police watchdog, to investigate the incident, which they decided to do on January 21. SIRT can be brought into play in cases where there is evidence that police actions crossed a line. Investigations could lead to charges against the police, though such a result is extremely rare due to the latitude the police have with use of violence.
Rao has also been banned by Walmart Canada from every store in the country.
Human Rights and racial profiling
Under human rights law, businesses in Canada are prohibited from refusing to sell to someone on discriminatory grounds. If customers are forced to leave for discriminatory grounds, thereby being humiliated and unwelcomed, it is also a human rights violation. In 2013, the Nova Scotia Human Rights Commission held that the Halifax Alehouse discriminated against a Black customer who was forced to leave then arrested outside the Halifax Alehouse. They awarded damages of approximately $7,000 in damages to him.
In Rao’s case, there are a lot of parallels. Add to her case that she is also banned from every Walmart in Canada.
But while racial discrimination by retail businesses like Walmart is illegal, they still do it.
Racial profiling and ensuing police brutality experiences like those of Rao are common because they are very much integrated into a system of loss prevention. It is already established that Walmart practices racial profiling as evidenced by locking hair products for Black women as a loss prevention strategy, which is them targeting their resources for loss prevention to aim at Black people, which has come under controversy and resulted in a lawsuit against Walmart in California. The same profiling plays out in instructions provided to security guards / loss prevention officers. Security guards are trained to keep an eye on people with such descriptions who they are taught are suspicious, which is racially biased. In 2016, CBC’s Marketplace did an investigation on racial profiling by security guards in Canadian retail, Shopping While Black, and discovered that racial profiling does take place. Marketplace shoppers dressed and acted the same way in test stores, with the only differences being the colour of skin or ethnic background. Black and Indigenous people were intently watched more so than people of a white complexion. In one case, a store even had codes for various people of colour used to plan their surveillance, which was heightened for people of colour.
The consequences of the heightened surveillance and the biases that come with it are spectacular and violent takedowns such as in the case of Rao. It is safe to say that very few cases of racial profiling will make the news due to the difficulty many would have in putting themselves in a spotlight. But there have been other incidents of racial profiling at Walmart that made the news, such as in a 2017 case in Calgary
The case against Rao’s charges
Despite all the racial biases that led to Rao’s violent arrest and ensuing trauma, the law appears to be on her side due to how the events played out. The most important key to her favourable legal position is that the police did not end up charging her for shoplifting, but then still proceeded to charge her for causing a disturbance, assault causing bodily harm to an officer, and resisting arrest. They really did not have a basis for the shoplifting charge. She had not left the store or passed through any checkouts when she was arrested, but remained at all relevant times in the main body of the store where merchandise is located. The officers were initially suggesting that she was attempting to conceal or had concealed produce on her stroller, which was an attempt to show intent to commit theft. As someone who has experience with criminal defence, I can say that there was never any reasonable basis for the shoplifting charge. As El Jones points out in her Examiner article, Rao was even told by the cashier at electronics to go to a produce cash to have her items weighed when she attempted to pay for all items at electronics. There was never an issue about having her items in the stroller at that point. Nothing was concealed. Her stroller was her shopping cart. But she never had the opportunity to purchase her produce because the police violently arrested her before she got to the other cash checkout. Even her attempts to show the police the produce on her stroller, and how she was not concealing anything did not cause the police to stop their investigation.
It was incumbent on the police to not simply follow the request of the Walmart security guard to arrest Rao, but to actually investigate the allegations in order to comply with their own standards for a police investigation. They are required to make observations on the scene. They are not supposed to ignore relevant information available to them, including if the person they are arresting is providing them with a counter explanation. They could have applied basic reason to see that she was not attempting to hide anything, as she was explaining to them. They also could have spoken to the initial cashier at electronics who did not raise any alarm. They did not follow a course of reasonable investigation, but moved quickly to detain — by the mere presence of several police and security around her – then arrest Rao, with officers also trying to separate her from her kids, putting her under even more distress.
The police may have opened themselves up to a future lawsuit for negligence, breaches under the Canadian Charter of Rights and Freedoms and possibly punitive damages due to the racial profiling.
Since the shoplifting charge is gone, the police are left with an unlawful arrest. By law, a person is allowed to resist an unlawful arrest by using reasonable force in the circumstances. The number of officers, the size difference between Rao and the officers, the context of her being separated from her children by police as they arrested her and any previous trauma (previous abuse by police or similar encounters) that the incident triggered are all relevant to what was reasonable in the circumstances. Here is an example of a judge in Alberta ruling that a lady who was unlawfully arrested was justified in biting an officer because it was reasonable in the circumstances:
 Since Ms.C. was not lawfully arrested, she cannot be found guilty of assaulting a peace officer if the force she exercised was reasonable. Was biting Officer Bennett reasonable under all the circumstances? Ms.C. was arrested at approximately 7:15 p.m. and shortly thereafter transported to the Grande Prairie RCMP detachment. She arrived at the detachment at approximately 7:35 p.m. and was placed in cells at approximately 7:45 p.m.. Officer Cote had attempted to use soft hand techniques on her to restrain her on two occasions and had partially pepper sprayed her on a third. She had not been cautioned or Chartered. Ms.C. had indicated to the officers that she would hit them if they touched her. She said this at least once to Officer Cote and although Officer Cote did attempt a soft hand technique on her, Ms.C. restrained herself and did not hit her. She also said it to Officer Bennett and again, although he did touch her, she did not hit him. What she did do was bite him on the hand during the course of a struggle where she was taken to the floor by two officers and restrained by a third and while she lay on her stomach with the three officers holding or on top of her.
That is just one example which covers both resist and assault of a police officer. As for the causing a disturbance charge, if Rao is found to be within the confines of reasonable force in her actions during her arrest, it should not be possible to find her guilty of causing a disturbance, which is described in the Criminal Code as “fighting, screaming, shouting, swearing, singing or using insulting or obscene language.” It would be a contradiction to find her guilty of causing a disturbance if her actions were justified in the course of resisting an unlawful arrest.
Dropping the charges
I do not think it makes sense for the prosecution to continue to pursue charges against Rao because it fails the “decision to prosecute test”, which has 2 factors: (1) Is there a reasonable prospect of conviction? (2) Does conviction serve the public interest? If there is no reasonable prospect for conviction, the public interest does not matter.
Based on all the facts that have been made public, I do not see a reasonable prospect for conviction. For convictions, a judge would have to find, beyond a reasonable doubt, that Rao committed the offences for which she is charged. It is hard to see how a judge could find beyond a reasonable doubt that Rao went too far in her actions to oppose an unlawful arrest, considering she was surrounded by several officers, attempted to verbally address the issue with the officers first, then had her daughter grabbed from her and that she walked away with a black eye, swollen neck, other bruises and scars around her wrists from being tightly cuffed. Further details indicate she also suffered from a broken wrist and had a concussion. Her background of trauma would be relevant to what was reasonable in the circumstances concerning her intent. Even if there were any minor injuries of scratches to police, they could hardly compare to what happened to her.
If it is somehow found that there is a reasonable prospect for conviction, the public interest should play a big role. Public confidence in the administration of justice is a major part of the public interest test, which includes, “whether the consequences of a prosecution or conviction would be disproportionately harsh or oppressive”. Considering the illegalization of carding in Nova Scotia due the racial bias in its use, there is plenty of evidence to support a public interest in stopping prosecutions that are associated with racial profiling.
Asaf Rashid is a criminal defence and immigration lawyer who is on a temporary leave from practice while he is doing other work in Halifax