HUMAN RIGHTS TRIBUNAL OF ONTARIO
BACKGROUND
[1] The Complainant, Jacqueline Nassiah, alleges that on February 18, 2003, Richard Elkington, a police officer with the Peel Regional Services Police Board (Peel), discriminated against her in the provision of a service in the manner he conducted his police investigation into an allegation that she had stolen a bra from a Sears store.
DeciSION
[2] I find that Officer Richard Elkington and Peel discriminated against Ms. Nassiah on the basis of race in the provision of a service on February 18, 2003. I find that Officer Elkington asked whether Ms. Nassiah spoke English in part because she is Black. He was more suspicious and his investigation was heightened because she is Black. In addition, he called her a “fucking foreigner” during the investigation and threatened to take her to jail if she did not produce the bra.
SUMMARY OF KEY EVIDENCE
[3] I heard from 12 witnesses over 13 days, between June 2006 and March 2007. I will set out the evidence of the key witnesses before assessing issues of credibility.
Ms. Nassiah’s Evidence
[4] Ms. Nassiah is a Canadian Black woman. On February 18, 2003, she went to the Sears store in the Dixie Mall in Mississauga to purchase some bras to send to her sister in Trinidad. She tried on a couple of bras and bought four bras. After she left the Sears store, she was stopped by a Sears security guard (John Nevers) who accused her of stealing merchandise.
[5] She was shocked; she offered to show him her purchases and receipt but he did not check. She accompanied him back to the security office where Mr. Nevers immediately called the police, reporting that he had caught a “Black female” stealing a bra. Mr. Nevers asked her to sign a document which she refused to do until the police arrived.
[6] Ms. Nassiah testified that she felt uncomfortable in the office with the male security guard and asked for a female employee to be present. Maria Santos, a sales clerk, was called to the office. Ms. Nassiah suggested that Ms. Santos search her to prove that she did not have a bra. Ms. Nassiah was wearing pants with no pockets, a pullover sweater, boots, and a winter coat. She showed Ms. Santos that there was no bra in her pockets; she took off her boots and lifted up her sweater to show that the bra she was wearing was not a stolen bra. Ms. Santos told Mr. Nevers that Ms. Nassiah did not have the bra on her. Ms. Nassiah testified that after this Ms. Santos left her alone with Mr. Nevers again.
[7] Ms. Nassiah was very upset, crying and kept asking Mr. Nevers to “look in the bag.” A mall security officer (Brian DeSousa) came into the security office during this time, and joined Mr. Nevers in looking at the video. Mr. DeSousa approached Ms. Nassiah and told her to make it easy on herself and tell them where the bra was and she again denied having the bra.
[8] At one point Ms. Nassiah asked Mr. Nevers if she could call her babysitter to explain why she was late but was told that the only call she could make was to her lawyer. She asked if she could see the video but Mr. Nevers did not permit it. At another point, he told her to “shut up.”
[9] About an hour after having first been detained, a police officer (Richard Elkington) arrived. According to Ms. Nassiah, the officer opened the door, looked around the room and asked to speak to Mr. Nevers outside; as they left, she heard him ask Mr. Nevers “does she speak English?” She felt humiliated.
[10] After five to ten minutes, the officer entered the room. His first words to her were “where’s the bra?” Ms. Nassiah denied stealing a bra and told him she had a receipt for the bras in the bag. She testified she told him she had already been searched. When the officer asked for identification, she gave him her driver’s licence and he left the security office.
[11] When he returned, he asked her in a hostile tone, “where’s the bra?” Ms. Nassiah cried as she denied stealing the bra and asked him to look in her bag, which he did.
[12] However, he persisted in asking her to “produce the bra”. Ms. Nassiah testified that he said, “if you don’t tell me where the bra is I am going to take you down and you will spend the night in jail.”
[13] Officer Elkington went into the video room (presumably to view the video, but she could not see what they were doing in there); when he returned he asked again, “where’s the bra.”
[14] He arranged for Ms. Nassiah be searched by a female employee, although Mr. DeSousa advised him that Ms. Nassiah had already been searched. Suzanne Narcisco was called to the office and asked to search her while Officer Elkington and Mr. Nevers remained in the adjacent video room. Again, Ms. Nassiah demonstrated that she was not wearing the bra, nor was it concealed in her boots, her pants or her coat. Ms. Narcisco advised the officer nothing was found.
[15] Officer Elkington then asked what was in her coat pocket and she said she gladly took her coat off and gave it to him. She had $600 in cash in her coat pocket; when Officer Elkington asked about it, she said the $600 was a gift for her parents in Trinidad.
[16] At this point, Ms. Nassiah testified that Officer Elkington leaned towards her and said “fucking foreigner...if you don’t tell me where the bra is I’m going to take you down” or “downtown”. Ms. Nassiah said “as God as my witness I did not steal the bra.” To which Officer Elkington sarcastically replied, “God is all of our witnesses”.
[17] Ms. Nassiah asked what was on the video and Officer Elkington told her that she was seen going into the change room with two bras and seen coming out with one bra. Ms. Nassiah said that what had probably happened is that she had both bras in her left hand, because she is left handed. Officer Elkington immediately left and returned to the video room. When he returned he said “I’m letting you go; we don’t have enough evidence to proceed.”
[18] Ms. Nassiah was still crying and asked why she had not even been permitted to call her babysitter; Officer Elkington told her that was normal procedure but that she could call now if she wanted. She testified that she tried to call but was crying so hard the officer took the phone and gently put it down so she could compose herself. She eventually called her sitter to say she was on her way.
[19] Then Officer Elkington asked her to sign his notebook. She testified that the pages were blank when she was asked to sign; he said this was normal procedure so she signed the blank page. Officer Elkington asked how she felt she had been treated and she said “okay.” She refused his offer to escort her to her car.
[20] She went to her babysitter’s residence to pick up her son and then drove to her apartment, where her brother Glen was waiting for her in the parking lot. Ms. Nassiah told him what she had undergone. During the retelling, she realized that the receipt from the Sears bag was missing. Her brother was upset with her for signing a blank notebook and suggested they go back to the mall immediately to get the receipt. They returned to the Sears store and confronted Mr. Nevers. Mr. Nassiah told Mr. Nevers that it was not fair the way he (Nevers) had treated his (Nassiah’s) sister and accused him of calling Ms. Nassiah a “fucking foreigner.” She intervened saying it was the Officer, not the guard, who had said that.
[21] Mr. Nevers said the officer had the receipt, so they left Sears. On the way out, they saw Mr. DeSousa who said that Ms. Nassiah had not been treated fairly. He offered his card, and offered to help if they wanted to take matters further. Mr. DeSousa was also able to supply the name of the officer.
[22] Ms. Nassiah testified that she was so worried about the receipt that she called the police station that evening and asked to speak to Officer Elkington. He got on the line and she told him she would like her receipt. He offered to drop it off and she gave him her address. She promptly called back and spoke to Officer Elkington again, asking him to leave the receipt with her building superintendent, because she was afraid of him knowing her apartment number.
Richard Elkington
[23] Richard Elkington is a White police officer. He worked as a police officer for eight years in Leicestershire, England before moving to Canada. He was hired by Peel in 2002. After receiving basic training, he was assigned regular police duties in September 2002. He received three commendations including one for a thorough investigation he made concerning an alleged abduction of a school-aged teenager. He has since moved to the Sudbury police force for family reasons.
[24] Peel’s computerized dispatch records indicate that Peel received a call on February 18, 2003 at 5.40 p.m. from a “John Sears” [sic] reporting a “shop theft.” The incident report notes “ADULT FML FOR SHOPLIFTING.” Officer Elkington was dispatched at 5.58 pm and arrived at the mall at 6.14 pm.
[25] Officer Elkington testified that when he arrived he met Mr. Nevers outside the security office. Mr. Nevers advised him that he seen Ms. Nassiah on the video camera entering the change room with two bras and exiting with one bra. Officer Elkington ordered a search of the change rooms, and asked that someone retrace the route taken by Ms. Nassiah to and from the change room.
[26] Then he went into the security room; as he did so, he asked Mr. Nevers, “does she speak English?” Officer Elkington testified that he had by this time seen Ms. Nassiah and could see that she was Black. On cross-examination, Officer Elkington conceded that one factor in his asking the question was that she was Black.
[27] Officer Elkington also conceded that in hindsight, he could understand how Ms. Nassiah, as a Black woman, would be offended by a White police officer and a White security officer discussing whether she was capable of speaking English. At the time, however, he did not see this as an inappropriate question.
[28] Officer Elkington testified that he introduced himself to Ms. Nassiah and explained that he was there to investigate the theft. He asked where the bra was. In his view, this was a neutral question. He testified that Ms. Nassiah was upset and denied stealing anything.
[29] He then asked her for identification and she provided her driver’s license. He returned to his vehicle and contacted Peel to conduct three checks: a criminal record check, a traffic offence check and a “suspicious activity” check. All were negative.
[30] He returned to the security room and looked into the Sears bag and noted that there were four black bras and a receipt for four black bras. He concluded that the stolen bra was therefore not in the bag. However, that did not exonerate Ms. Nassiah in his mind, as she could have stolen a different bra; in his experience, a suspect may legitimately purchase some goods as a ruse for stealing other goods.
[31] In his mind, he was eliminating various possibilities about where the bra could be: the change room, the surrounding area, the Sears bag. That left the possibility that the bra might be concealed on Ms. Nassiah. Officer Elkington then arranged for Ms. Nassiah to be searched. He testified that he had not been advised by anyone that Ms. Nassiah had been previously searched and nothing found. Ms. Narcisco conducted a search of Ms. Nassiah and reported that nothing was found.
[32] After she was searched, Officer Elkington approached her and asked for her coat which she handed to him. He searched the pockets and found a wad of bills; he asked her about them and she responded that it was a gift for her parents, an explanation he accepted.
[33] Officer Elkington viewed the video several times during the investigation. He testified that Mr. Nevers cued the video each time and showed him those portions where Ms. Nassiah was seen entering the fitting rooms with two bras and then seen apparently leaving with one bra. He did not view the entire video until the last viewing. When he finally viewed the video to the end, he discovered what appeared to be two tags hanging from Ms. Nassiah’s hand. He concluded that Ms. Nassiah had exited the change room with two black bras. He pointed this out to Mr. Nevers, who exclaimed “oh wow.” Officer Elkington returned to Ms. Nassiah and advised her that the evidence showed she did not steal any bra and that she was free to go. He apologized for the delay caused to her. He asked Ms. Nassiah to sign his notebook and she did so. He offered to walk her to her car, but she declined.
[34] Thus, according to Officer Elkington, he arrived at Sears at 6:14 p.m. and released Ms. Nassiah by about 7:00 p.m. He remained at the store and spent about fifteen minutes with Mr. Nevers ensuring that Nevers understood that the evidence clearly demonstrated Ms. Nassiah’s innocence. He called Peel at 7.16 p.m. (confirmed by exhibit 24) indicating that “report of theft unfounded on proper examination of video tape no items stolen or concealed. Detained party released unconditionally at the scene.” He stopped at Tim Horton’s for a cup of coffee before returning to his vehicle and advising that he was ready to receive another call, at 7:31 p.m. (confirmed by exhibit 24).
[35] He denied using a hostile or badgering tone, calling her a “fucking foreigner”, threatening to “taking her down” or any other derogatory remarks. He also denied asking Ms. Nassiah to sign a blank notebook.
[36] He did not take Ms. Nassiah’s receipt although he did recall at one point Ms. Nassiah contacting him to demand one. He merely advised her he did not have it.
[37] I also heard evidence about the events of February 18, 2003 from Glen Nassiah, the Complainant’s brother, John Nevers, the Sears security guard, Suzanne Narcisco and Maria Santos, Sears sales associates.
Glen Nassiah
[38] Glen Nassiah is Jacqueline Nassiah’s brother. He testified about Ms. Nassiah’s initial and ongoing emotional reaction to the events of February 18, 2003. He confirmed that he met his sister the same evening and that she reported the whole story related above, including the “fucking foreigner” comments and the threat to take her to jail. He testified that he returned to the mall with her that evening and confronted John Nevers, accusing him of calling his sister a “fucking foreigner,” which Mr. Nevers denied.
John Nevers
[39] John Nevers worked as a part-time security guard (also known as a loss prevention officer) for Sears from 2000 until 2006. He is White. On February 18, 2003 he was surveying the store through one of the six closed circuit television cameras placed in the ceilings throughout the store. He began watching Ms. Nassiah and then saw what he believed was a suspicious sign – she glanced around as though to see if someone were watching her (in fact what had caught Ms. Nassiah’s eye was another customer passing by). He continued to focus on her. He saw her pick up what appeared to be two black bras and head towards the fitting room.
[40] He trained his camera on the fitting room to watch her when she emerged. Ms. Nassiah emerged from the fitting rooms carrying what appeared to be one black bra.
[41] Mr. Nevers concluded that he had video evidence of Ms. Nassiah entering the fitting room with two black bras and leaving the fitting room with one. He contacted Maria Santos, a sales associate near the fitting room, and asked her to check if there was a black bra in the fitting room; she called back indicating there was not. Mr. Nevers then left the security room and checked the fitting room himself.
[42] Mr. Nevers kept an eye on Ms. Nassiah as she proceeded to the cash and left the store. He followed her outside the store, detained her and brought her to the security office. He testified that on his way to the security office he stopped and asked Ms. Santos to accompany him, in accordance with store policy that a female associate must be present when a female suspect is detained.
[43] In the security office, Mr. Nevers stated that he opened a binder on his desk containing the standard form of rights and read them to her. He asked her where the bra was. She denied having it. He asked Ms. Santos to go with her to the washroom and check for the bra. Ms. Santos reported that Ms. Nassiah was not wearing a black bra, but was wearing a pink bra. This caused him to doubt his arrest, since he assumed the only place she could have the bra was on her person.
[44] He then asked her for identification and when Ms. Nassiah refused to provide any he called the police. While waiting for the police to arrive, he began to complete his paperwork. At one point he asked Ms. Nassiah to sign the Notice of Apprehension form indicating that he had read her her rights, but she refused.
[45] He testified that Ms. Nassiah was upset, but not crying; he denied telling her to shut up. He agreed she asked to call her babysitter, but he denied that request as it was store policy not to permit any phone calls except to a lawyer.
[46] He testified that at some point Ms. Santos indicated she could not stay, so he contacted Ms. Narcisco to attend. He denied ever being alone with Ms. Nassiah in the security office.
[47] Once Officer Elkington arrived, Mr. Nevers spoke with him outside the office advising that he had video evidence of the suspect entering the change room with two bras and exiting with one. Officer Elkington asked if Ms. Nassiah spoke English as they were entering the office and Mr. Nevers confirmed that she did.
[48] Once Officer Elkington arrived, Mr. Nevers remained in the adjacent video room. He was shocked when Officer Elkington showed him the presence of two bras in Ms. Nassiah’s hand on the video.
[49] Later that evening, Ms. Nassiah returned with her brother who accused him of arresting Ms. Nassiah because she was Black and calling her a “fucking foreigner.” He denied the allegations. He did not recall Ms. Nassiah correcting her brother that it was the officer who had said that.
[50] Ms. Santos and Ms. Narcisco were also called to testify about the searches they performed and whether one or the other of them were present in the office with Mr. Nevers and/or Officer Elkington. For reasons I will explain shortly, I do not find their evidence useful or reliable.
[51] The key witnesses of what transpired in the security office on February 18, 2003 between approximately 5:40 p.m. and 7:16 p.m. are Ms. Nassiah, Officer Elkington and John Nevers...