The purpose of a SiRT investigation is to determine whether the facts of a case, where the actions of police may have led to serious injury, justify the laying of criminal charges against a police officer…
The totality of evidence clearly shows that the [Affected Person] was causing a disturbance in a public place by screaming, shouting and using obscene language…
The actions of the two [Subject Officers] in this matter were lawfully justified and required to effect the arrest and protect themselves from the actions of the AP. Had the AP complied with the requests made by the [Subject Officer 1 and Subject Officer 2], she would not have been arrested and the injury to her wrist would not have occurred.
Accordingly, there are no grounds for any charges against either officer.
Where to even begin?
Let’s start with the curious timeline of last week’s slim three-and-a-half page “Summary of Investigation” of File 2020-001 by Nova Scotia’s Serious Incident Response Team. The investigation concerned the police arrest of 23-year-old Santina Rao at the Halifax Walmart on the afternoon of January 15, 2020.
The day after Rao — identified in the report only as “Affected Person,” or AP — “sustained injuries” during her arrest, the Halifax Regional Police did what they’re required to do. They turned the case over to SIRT, which investigates serious incidents involving police officers. Its mandate: “To ensure Nova Scotians have the utmost trust and confidence in the investigation of serious incidents involving police.” It is ostensibly an independent, arm’s length body, even though its four investigators are current or former police officers.
SIRT began its investigation the next day. The investigation wasn’t completed until more than six months later, on July 3, 2020. And then it wasn’t released until last week, three months after that.
Why the delay?
There is no explanation in the report itself, but here’s another date. Three days after the investigation was completed — on July 6 — the public prosecution service dropped the shoplifting charges against Rao that were ground zero of her arrest for resisting arrest. Despite that, there isn’t even a mention of the decision to drop the charges in the SIRT report.
Last week’s SIRT report did, however, catalogue, in the usual jargon-y, police-blotter fashion, everything that it had “obtained, reviewed, and considered” during its investigation, including:
Subject Officer 1’s (SO1) statement of events and Supplementary Occurrence Report, Subject Officer 2’s (SO2) handwritten notes, his Supplementary Occurrence Report, his Subject Behaviour Officer Response Report (SBOR) and photographs of his injuries, Supplementary Occurrence Reports of four Witness Officers (WOs), statements taken from one Halifax Shopping Centre (HSC) security officer, two Walmart Asset Protection Officers (APOs), five Walmart employees (WEs), two civilian witnesses (CWs), as well as Walmart security videos, the video taken by the friend of a CW, audio and video taken by other CWs, video of the HRPS prisoner care facility, medical records and photographs of the AP, media outlets reporting on the incident, a statement provided by the AP to SIRT, media interviews given by the AP and comments made to the media by various community leaders.
There are two things worth noting here.
First, the “investigators” appear not to have personally interviewed the officers or Santina Rao, but relied simply on statements they provided. According to Tony Smith, a local activist SIRT hired to provide input from a Black perspective — and whose input it then ignored (but, if you want to know, Smith also disagrees with its findings) — the police statements were compiled by Halifax Regional Police.
Acknowledged SIRT Director Felix Cacchione in a statement to the CBC:
… officers under investigation are not required to give a statement or provide notes to SIRT. Despite that, one officer provided a written statement, while the other provided his report, notes and photos of his injuries.
Second — stripped of all the acronyms — the incontrovertible fact is that two Halifax Regional Police officers, one Halifax Shopping Centre security officer, two Walmart “asset protection” officers, at least two other Walmart employees the report says were paged to the scene, and four more so-called “Witness Officers” (11 authority figures in all) converged on the toy department at Walmart that day to confront a 23-year-old woman and her two children, one in a stroller.
The incident began at around three in the afternoon when a store security officer (APO1) noticed Rao shopping with her stroller. Notes the report:
Store security pays attention to various things when conducting surveillance to prevent shoplifting. One of those is to observe customers who have strollers while shopping since many thefts involve the use of a stroller to conceal stolen items.
Really? Does Walmart have any records to show the numbers of people its security officers follow around its stores who happen to be shopping while strolling? What percentage of those who are followed appear to be white and middle class?
The Walmart security officer began following Rao in the produce department where she suspiciously…
… selected lemons and lettuce before proceeding to a different aisle where she selected other items. The AP then went to the electronics department where she selected some movies before going to the checkout counter located near the electronics section. The AP paid for various items at approximately 3:09 PM but not those sitting on the rack under the stroller.
The Walmart electronics employee (WE1) who rang in Rao’s electronics purchases claimed he asked her if she wanted him to ring in her produce too, but she declined.
The AP replied that she would be returning those items to the produce department. This made WEl suspicious and caused him to alert the APOs once the AP left the cash register area.
So now we have two Walmart asset protection officers following Rao and her two kids around the store for 40 minutes until she eventually ended up in the toy department.
While in one of the toy aisles, APOl and APO2 watched the AP remove a foil bag from the stroller rack, place the produce items in the foil bag and close the bag. The AP was, at the same time, talking on her phone. The AP was on her phone for some time while in the toy section. The tone of her conversation quickly alternated between normal and yelling.
Was Rao planning to steal those high-value lemons and lettuce, or simply preventing them from rolling around in the bottom of the stroller, or perhaps organizing them so they’d be easier to transfer to the checkout later. Rao’s own explanation, which is not referenced in the SiRT report: “While my daughter looked around, I made my son a bottle. I pulled his formula, thermal water bottle, and bottle out of my silver, thermal reusable bag. Which Walmart ‘mistakenly believed’ was one of their bone-in ham roasts, sitting under my stroller in the basket below.”
Based on their mistaken assumptions…
APOl and APO2 decided that HSC security and the police should be called for assistance because they determined the AP would be arrested for shoplifting.
It is worth noting here, if it isn’t already obvious — and it certainly should have been to the Walmart pseudo-cops — that Santina Rao had not yet reached the checkout, still had opportunities to pay for the lettuce and the lemons before leaving and was not attempting to make a run for it.
At this moment, she was still, in fact, just another Walmart shopper.
Nonetheless, store security not only decided she should be arrested but also, because of her “demeanor while on her phone [with her mother]… were concerned about how she would react to being arrested.”
Bring on the cops!
Mall security and the first police officer — SO1 — arrived and were briefed on the dangerous individual in the toy aisle. The officer, according to the report, told his Walmart counterpart “his preference was to not let a criminal offence happen.”
So the officer concluded, based on nothing more than a few lemons in a stroller, that Rao was about to commit a criminal offence and he was going to stop it.
SO1 entered the store and approached the AP who was still on her phone. He asked the AP to get off her phone as he wanted to speak with her. The AP was polite and did so. She asked what this was about, and SO1 replied by asking her if she had any concealed items in the stroller because that was what had been reported to him. Although he did not accuse her of theft, the AP immediately began to curse and shout about being accused of stealing.
Uh… the officer hadn’t accused her of theft? “Concealed items … reported to him?” Sounds like, at the very least, a clear suggestion Rao had been caught in the act of committing a crime.
Let’s also rewind that interaction a bit. Until the officer accuses her of theft, Rao seems, even in the official version, to have been cooperative, polite.
Rao had also claimed in news accounts that, “despite repeatedly telling the officers to check her bags, they did not do so.” This isn’t referred to in the SIRT report either, despite its claim investigators had “considered” media reports about the incident.
So, what triggered Santina Rao’s angry response?
Could it have been that she is a black woman being accused by white policemen of being a thief? Could it be this was not the first time she had been profiled in this way? Could her anger have been a reasonable logical response to systemic racism?
The situation escalated after the police officer asked her for identification. “The AP cursed and shouted at SO1 and the APOs about them being racists and only accusing her of theft because she was a black person… The AP did, however, provide some identification but continued to curse and shout.”
OK, Rao’s not happy but, according to the SIRT report, she does provide ID. She also sees the police behaviour as racist and reacts accordingly.
The cop, on the other hand, sees a crime that hasn’t been committed, as well as a new crime in the making.
Despite being asked several times by SO1 to stop swearing and to lower her voice because of the presence of her children and other persons in the vicinity, the AP did not. Even being told that she could be arrested, in the presence of her children, for obstruction of a peace officer in the execution of his duties and causing a disturbance in a public place did not alter her behaviour.
The new crime is that Santina Rao was angry about being accused of theft and had responded accordingly.
After about five minutes, a second police officer arrived on the scene. So did the two Walmart employees who’d been paged from the storeroom to the toy aisle, presumably to provide backup for the under-manned police officer, one mall security guard and two Walmart asset protection officers. The second police officer “asked the AP about her address” — Wait a minute; doesn’t the report suggest she’s already provided ID?…
… at which point the AP kicked the produce items on the floor as she screamed and cursed about the police having no right to speak to her or harass her in the presence of her children. The AP was told again, this time by the SO2, that she could be arrested for causing a disturbance. The AP walked a short distance down the aisle before turning and moving towards one of the APOs standing at the end of the aisle. The AP pointed her cell phone at the APOs, said they would be on Facebook and that they were racists, before giving them the finger and walking back down the aisle.
OK, so Rao was, as seen on camera, “moving around in an agitated state.” She’d been accused of committing a crime and twice threatened with arrest for complaining about that. And then everything escalated further after Rao threatened to put the Walmart security guards on Facebook…
Upon seeing this, SO2 grabbed the AP’s arm to arrest her for causing a disturbance in a public place. The AP resisted and scratched SO2’s face with her long acrylic nails before she was taken to the ground and then again once she was on the ground. The scratching immediately drew blood to both the right and left side of SO2’s face. While on the ground the AP struck the SO2 in the groin and he responded by striking her in the face. The AP suffered a concussion, a black eye, and a “minimally displaced” fracture of her left wrist, likely the result of being taken to the ground when she was arrested.
SIRT’s conclusion was that the second officer not only had grounds to arrest Rao because she was “causing a disturbance in a public place by screaming, shouting, swearing or using obscene language,” which is a criminal offence, but he was also “entitled to apply force to protect himself… from force used by a person being placed under arrest.”
So, the police actions were “lawfully justified and required.”
- Were the Walmart security guards justified when they “determined the AP would be arrested for shoplifting” at a point when Rao had shoplifted nothing and still had opportunities to pay for the goods in her stroller before leaving the store?
- Did the first police officer have evidence or reasonable cause to assume Rao was stealing and therefore act “to not let a criminal offence happen?”
- Did the escalation follow logically from the white officers’ presumption that the Black Rao was guilty?
- More generally, do Walmart’s asset protection officers and Halifax police have the necessary training to understand racism and to attempt to de-escalate situations so what happened in this case doesn’t happen again.
The purpose of a SIRT investigation, according to the report, is to determine not only whether the facts “justify the laying of criminal charges against a police officer” but also to provide the public with “an independent analysis of the facts.”
This report fails on both counts.
You can read Santina Rao’s own response to the SiRT report here.
I wonder what our municipal leaders have to say about this egregious racism?
Paint another street, take another knee?
Christ you know nothing will change. SiRT just reenforced that.
I regularly shop Walmart, Sobeys, Superstore and most other stores with my stroller. While I’m the same colour as Rao, I’m very obviously privileged by my socio-economic status and any other characteristics about my appearance that demonstrate it. I’ve never been followed anywhere, despite loading up the basket of our stroller with school supplies, medication, diapers, etc. This is incredibly shameful behaviour by HRP and Walmart.
Based on my limited observation, retail employees perception of shoppers‘ socio-economic status affects how shoppers regardless of colour are treated.
Cassi Pittman Claytor, an assistant professor of sociology at Case Western Reserve University, studies contemporary forms of discrimination with a focus on middle-class Blacks. She said salespeople, store security guards — and even company policies — can reinforce inaccurate stereotypes that Black customers are more likely to steal or can’t afford high-end items. Her research has shown that money is not an equalizer for Black Americans when they walk into a store, even if they have a high income, work on Wall Street or attended elite schools.“It doesn’t matter how much money you have, what your credentials are,” she said. “Your prestigious credentials don’t garner you any additional respect. When you walk into a store, you could still be treated like a criminal.”
As Black buying power grows, racial profiling by retailers remains persistent problem
This is such a clear example of systemic racism it shouts it. I agree with the previous comments, and ask why SIRT reports are not required to focus on quality improvement rather than blatant protection of officers. What a lost opportunity to explore the meaning of systemic racism. The list of lessons for police here is very long. We need community policing with non violent, truly respectful and inclusive approaches to protecting all citizens. Time to shift away from military style police confrontation. This was a great article and I appreciate the publication of the young mother’s response to the report. I am appalled that any officer would escalate a situation in front of children – ever.
Walmart failed. HRP failed. SIRT failed.
Walmart – if someone is still in the store, they haven’t committed theft yet. Failure.
HRP – if someone is still in the store, they haven’t committed theft yet. You shouldn’t have even been there. Failure.
SIRT does not convey quality workmanship, or ooze competence here. Either their flow chart diagram skipped a few steps, or it requires a few more additional steps, as conclusions reached appear minimal, and not thorough. Maybe I’m over-estimating their mandate on what exactly required reviewing in this debacle, but it sure appears to be protecting the HRP.
You can be charged with shoplifting even if you haven’t walked out of the store.
Section 322(2) of the Criminal Code defines “The time a theft occurs” as the time a person “moves anything or causes it to move or to be moved or begins to cause it to become movable” with intent to steal that thing.
322(1) has to happen before 322(2) applies. in the case of retail theft, 322(1a)” to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;” applies.
until you have passed through the registers, you haven’t deprived the owner of anything, therefor theft has not occurred. 322(2) basically says if you make it out of the store, the theft occurred when you pocketed the item, not when you left.
Section 322(2) does not imply ”if you make it out of the store.“
According to a Toronto law firm website: You can be charged with shoplifting in Toronto even if you haven’t left the store (though such cases are rare). Most store security guards follow policies that require them to wait until the shoplifter leaves the store before they arrest them (or at least past the checkout point). The reason is that leaving the store is generally accepted to meet the “intent to deprive” of ownership requirement in the criminal code. This being said, it is possible to support a conviction even if you haven’t left the store because of the wording of Section 322 (2) of the criminal code which defines the “time a theft occurs”. It reads:
“A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.”
If you conceal an item on your person (pocket, purse, under clothes, etc.) it is possible that a court may view this as “moving” the property so as to meet the time of completion requirement specified in the criminal code. We have seen cases where police have charged individuals with theft under $5000 even when they are apprehended before leaving the store.
While cases of this nature are more difficult to prosecute they do happen occasionally (normally when a security guard fails to follow store policy). Just because a security guard makes a mistake by not following store policy doesn’t mean you can’t still be charged. It is the criminal code that defines theft under $5000, not store policy.