Santina Rao finally had her charges of assault of a peace officer, resisting arrest and causing a disturbance dropped on July 7, 2020. Finally. This happened six months after she was racially profiled by Walmart security, falsely accused of shoplifting, then violently arrested by Halifax Regional Police after they interrogated her for her identification and other information, all in front of her two young children.
As the Crown prosecutor Jane McDonald-Mills put it on July 7 in court, the Crown had, “concerns about a realistic prospect of conviction at this time.” She added that the Crown did not believe it was in the public interest to proceed with the charges. The court proceedings could have easily been avoided at the outset. The charges should never have been laid because there was really never a case.
Charges are laid once the Information is sworn before a justice of the peace. The information is the charge forming document and contains a description of the charges. In Nova Scotia, the police lay charges, and when they do, court proceedings begin. When police lay charges that eventually fail the test for prosecution, they cause harm in the form of stigma of the person accused, and conditions that place limitations on the person’s freedoms for charges that were unjustified from the outset. This is what happened to Rao.
An alternative is pre-charge screening by the Crown, where the Crown decides whether to lay charges only if there is a case for prosecution. There are already three jurisdictions in Canada where the Crown, not the police, decide whether charges should be laid: New Brunswick, British Columbia and Quebec. Pre-charge screening by the Crown, if it functioned properly, should take cases like Rao’s off the table before court proceedings begin.
The delays in her unjustified charges being dropped and had huge and negative impacts on her. As she wrote in the Halifax Examiner:
For the past 6.5 months, every day I’ve awakened feeling like I was failing, while the charges hung over my head. Even though countless people reached out with their support, I felt alone and alienated.
As I look back at the entire situation, I will continue to be alienated, because I was, and always will be to others, “that Black girl who got assaulted in WalMart,” and people will remember me for the horrible trauma my babies and I suffered through.
Yes, I am happy the charges have been dropped. But that means there’s something new I need to fight for: the justice from the fact that a WalMart employee took it upon themselves to racially profile me, call HRP, and tell them whatever, so they’d send as many police officers as they did just for me, unarmed, and my two babies.
I suffered a broken wrist, concussion, and lacerations to my body.
The charges are dropped, but there is no justice for me. I am still currently banned from all WalMart properties, even though there was never any theft in the first place.
Pre-charge screening by the Crown is an improvement. But more should be demanded than just this bare minimum. An additional filter should be put in place. Cases where police street-checked or otherwise unlawfully stopped a Black or other racialized person, and charges arose out of reactions to the illegal treatment, should be screened out.
As the Wortly Report on police street checks in Nova Scotia revealed, Black people in the province have been street-checked at 5-times the rate of their representation in the population. These illegal stops, if they result in charges related to opposing police treatment, such as Rao’s case, should never be considered in the public interest to prosecute, as that would simply validate racial profiling. The public interest test for prosecution includes whether prosecution of the case would cause loss of public confidence in the administration of justice. The public should lose confidence if illegal and racist conduct by the police is validated.
The problem of Black and other racialized people being put through the courts without legal justification is likely huge. How many cases are there, which did not get the attention of Rao’s, where police street checks resulted in charges that were eventually withdrawn much later? Or even worse, where the stress of having charges hanging overhead, and no trust that the justice system would work in their favour, resulted in guilty pleas just to ease the burden?
Pre-charge screening does not automatically remove bias and racism from the equation. Evidence has shown (1, 2, 3) that Black and Indigenous people regularly received harsher sentences and denial of release on bail than white counterparts in similar circumstances. This is the result of systemic biases in prosecution and at the judicial level. These larger problems must still be addressed. But pre-charge screening is a small measure to take away some power from police, on the way to much larger, systemic changes.