Damaged Goods: A Critical Perspective on Consumer Racial Profiling in Ontario's Retail Environment

• Author: Tomee Elizabeth Sojourner-Campbell
• Pages: 173-196

173

ChAPTeR 8

Damaged Goods

A Critical Perspective on Consumer Racial

Prof‌iling in Ontario’s Retail Environment

tomEE ELizabEth soJournEr-ca mpbELL*

A. INTRODUCTION

Until recently in Ontario, the public discourse about racial prof‌iling had

focused primarily on police services and their of‌f‌icers’ conduct towards

members of Black and Indigenous communities, namely youth, adult men,

and some women.1 The rac ial prof‌iling in these situations has included un-

lawful stops and detentions, completion of contact cards (i.e., “carding”),

and street stops, also referred to as “driving while Black.”2 These inc idents

have been documented in Ontario’s caselaw, in media reports, and in the

Ontario Human Rights Commission’s report on racial prof‌iling.3

However, there has been growing public interest in another form of

racial prof‌iling: racial prof‌iling in Ontario’s retail environments, also

* Tomee Elizabeth Sojour ner-Campbell is a mediator, diversit y and inclusion consultant,

and interdisciplina ry legal researcher. The author w ishes to thank her copy editor,

Saada Bran ker, and her wife, Njeri Damali Sojou rner-Campbell, for revie wing and

commenting on dra fts of this chapter.

1 Andrea S Anders on, “Seeing Gender Dif‌ferently in R acial Prof‌iling ” (2017) 14:1 Canadi-

an Divers ity 22; Jim Rank in, “Police Target Black Drivers , Star Analysis of Tra f‌f‌ic Data

Suggests Racial Prof‌iling” Toronto Star (20 October 2002); David M Tanovich , “E-Racing

Racial Prof‌i ling” (2004) 41 Alber ta Law Review 90 5 at 907 [Tanovich, “E- Racing”].

2 Ontario Human Rights Comm ission, Under Suspic ion: Research and Con sultation Repo rt

on Racial P rof‌iling in Ontario ( Toronto: Ontario Human Rights Com mission, April 2017)

at 10. [OHRC, Under Suspicion]; Tanovich, “E-Raci ng,” above note 1 at 929.

3 R v Brown, 2003 Ca nLII 52142 at par a 7 (Ont CA); D’Mello v Law Society of Uppe r Canada,

2013 HRTO 1245; Phip ps v Toronto Police Servi ces Board, 2009 H RTO 877; Sinclair v

London (City), 2008 HRTO 48 ; OHRC, Under Suspicion, above note 2 at 31–45.

Tomee Elizabeth Sojour ner-Campbell

referred to as consumer racial prof‌iling.4 It is a practice of targeting a

consumer for discriminatory treatment (e.g., arbitrary bag searches, un-

substantiated accusations of shoplifting, physical body “strip” searches)

based on an arbiter’s unconscious or conscious biases and stereotypes

about a consumer’s race, skin colour, ethnicity, appearance, gender/sex,

and ability to pay or an intersection of these perceived identities.5 These

arbiters include loss prevention employees, security guards, front-line

employees, and management.6 F urther, consumer racial prof‌iling is often

practiced in the context of loss prevention, however, it also includes de-

nial or degradation of services, goods, and products.7

For the most part, consumer racial prof‌iling from a legal academic

perspective has been under-researched. As legal practitioners, human

rights advocates, community members, and consumers, the matter of

consumer racial prof‌iling should be top of mind when we consider three

factors. The f‌irst factor is that many Ontarians are consumers of house-

hold and personal products, goods, and services.8 They rely on retail busi-

nesses as the primary source of these everyday items.9 Moreover, many

4 Tomee Elizabeth Sojour ner, “‘Can I Help You?’ Taking Seriously Consumer R acial

Prof‌iling in Ont ario’s Retail Sector” (2017) 14:1 Canadi an Diversity 29. [Sojourner, “Ca n

I Help You?”]. As a point of clari f‌ication, I recognize that con sumer racial prof‌iling

practices are not un ique to the retail sector and cut acro ss all types of privat e and

public sector consumer ser vices (e.g., banks, hotels, restau rants, insurance, hea lth care,

security, travel, a nd education) (ibid at 30).

5 Nova Scotia Human Right s Commission, Working Together To Be tter Serve All No va

Scotians: A Re port on Consum er Racial Prof‌il ing in Nova Scotia (Hal ifax: Nova Scotia

Human Rights Com mission, 2013) at 81 and 100. [NSHRC, CR P Report]; Gilpin v Halifax

Alehouse Li mited, 2013 NSHRC 43798 at para 2 2 [Gilpin]. I am using the concept of inter-

sectionality i n the manner contemplated by the Ontar io Human Rights Commission

in Ontario Huma n Rights Commission, An Inters ectional Appr oach to Discrim ination:

Addressi ng Multiple Ground s in Human Rights Claim s (Toronto: Ontario Human Rights

Commission, 2001) at 3.

6 Recent human rights c onsumer racial prof‌iling a nd racial prof‌iling cas e examples

include: Danielso n v Dollar Giant Store and ano ther, 2013 BCHRT 108; Gilpin, above note

5; Rai v Shark Club of La ngley, Limited Partne rship, 2013 BCHRT 204; Nass iah v Peel (Re-

gional Muni cipality) Police Ser vices Board, 20 07 HRTO 14 [Nassi ah].

7 Anne- Marie G Harris, Gera ldine R Henderson, & Jerome D Williams , “Courting

Customers: Assessi ng Consumer Racial Prof‌il ing and Other Marketplace D iscrimina-

tion” (2005) 24:1 Journ al of Public Policy & Mark eting 163 at 163 [Harris e t al, “Courting

Customers”].

8 OHRC, Under Suspicion, above note 2 at 70.

9 “Most expenditu res by consumers for goods and ser vices occur through re tail trans-

actions. This ret ail spending accounts for bet ween50 and 55percent of Canadia n