4. Discrimination in retail settings

Indigenous people often experience racism and consumer racial profiling in different commercial settings like department stores, supermarkets, pharmacies, convenience stores, malls, and shopping centres. These experiences may amount to racial discrimination (which also includes harassment) and may violate the Code.

These negative experiences can vary, ranging from an Indigenous customer being subjected to unkind remarks and tones or being ignored, to more extreme examples of discrimination including targeted surveillance by staff or security personnel.¹⁹ While these experiences are common, they may have increased during the COVID-19 pandemic.²⁰

Lived experience: Refusal of service during the COVID-19 pandemic²¹

During the COVID-19 pandemic, social media posts were used to spread racist commentary and misinformation about Indigenous people from Wabaseemoong Independent Nations. This led businesses and organizations in Kenora, a Northern Ontario town, to refuse service to Indigenous people. The nearby Indigenous community was facing a COVID-19 outbreak at the time. Many members of Wabaseemoong Independent Nations live and work in Kenora and/or rely on the community for medical and social services. The impact of this differential treatment not only undermined the dignity of local Indigenous people but also created barriers to accessing goods and services.

The following sections list examples of racial discrimination experienced by Indigenous customers to help Indigenous readers identify when their Code rights may have been violated and help duty-holders recognize when they might have an obligation to act.

4.1. Racial profiling

Racial profiling in retail settings may lead to racial discrimination, which is a Code violation and has damaging impacts on Indigenous and racialized people. It perpetuates feelings of inferiority, being undesirable or invisible. Racialized customers explain that racial profiling while shopping signals that they are not as desirable or welcome as white customers.²² Discriminatory conduct may involve preventing or discouraging customers from accessing retail spaces.²³

Consumer racial profiling of Indigenous people is primarily linked to two related stereotypes:

the perception or affiliation of Indigeneity with poverty, and
the association of Indigenous people with criminality, especially when viewing Indigenous people as potential shoplifters.²⁴

This can result in service providers denying or providing slower service to an Indigenous shopper due to a belief that they cannot afford to buy goods, for example. It can also result in the hyper-surveillance of Indigenous shoppers because service providers think that Indigenous people are more likely to engage in criminal behaviour.

Stores may be held accountable under the Code for racial profiling when they surveil or search Indigenous customers in ways they would not do to others, based in part on their perceived Indigeneity.²⁵ Hunches (whether based on intuition gained from experience or otherwise) or perceived nervousness are not enough to establish reasonable suspicion of a customer. Behaviour should be viewed objectively and not through stereotypes. Any reliance on a customer’s perceived Indigeneity in the retail security process could constitute racial profiling and give rise to a human rights complaint.

Lived experience: Racial profiling²⁶

An Indigenous man was shopping at a store in Thunder Bay where he was accused of stealing the shirt he was wearing from the store.

While waiting in line to purchase an item, he received a call from his mother. She required assistance, which led him to promptly place the item back on the racks and make his way out. However, he was stopped by an employee who implied the shirt the man wore was stolen. The Indigenous customer explained that as he tried to leave:

“Some guy’s walking toward me from inside the store and he said, ‘the shirt, buddy.’ And I looked at my shirt. I’m like, ‘yeah.’ He said, ‘that’s ours.’ And I said, ‘no it’s not.’ And he said, ‘are you sure?’ I said, ‘100 per cent.’ And we stared at each other and he said, ‘OK,’ and went back into the store.”

The shirt that he wore was not being sold at the store in question, nor on its online website.

After the Indigenous customer shared his experience online, the parent company of the store denied any wrongdoing, citing a misunderstanding instead. The company invited the customer to participate in an online meeting with the store’s manager, who intended to present an apology, but the meeting was later cancelled by the company when the Indigenous customer insisted on bringing an advocate to support him during the call.

4.2. Surveillance

Targeted surveillance of Indigenous people is one form of discrimination that takes place in retail settings. Staff or security personnel may inappropriately target Indigenous customers by:

Watching or following Indigenous customers without reasonable grounds (e.g., by unreasonably identifying an Indigenous customer as a “suspicious person”).²⁷
Arresting, questioning, or searching Indigenous customers without sufficient legal authority. ²⁸
Monitoring Indigenous customers when using dressing rooms or self-checkout machines or checking their receipts upon exiting a store due to unfounded suspicions of shoplifting.
Physically removing Indigenous customers from a store or a mall, asking them to leave, or refusing service to them due to unfounded suspicions of shoplifting or due to stereotypes or negative attitudes toward Indigenous people.²⁹
Over-scrutinizing tags on potential purchases when customers are checking out to ensure Indigenous customers have not changed them to obtain a lower price.³⁰

Retailers may also take discriminatory surveillance-related actions beyond physical scrutiny, such as:

Accusing Indigenous customers of stealing or not scanning all their items at self-checkout.³¹
Asking staff to be on the lookout for Indigenous shoppers because they are presumed to steal.
Questioning Indigenous customers about the price of their purchases or possible returns (e.g., asking “can you afford this?”).
Denying a return based on false accusations (e.g., falsely accusing them of damaging an item or altering the sales tag in some way) or ridiculing an Indigenous customer when they are attempting to make a return.³²
Asking Indigenous customers to leave their bags or potential purchases at the counter while they browse due to unfounded suspicions of shoplifting.³³

4.3. Other forms of discrimination in retail settings

Indigenous people often experience additional forms of discrimination in retail settings. For example, staff and/or business owners may:

Speak to Indigenous customers or ask questions in a rude, hostile, patronizing, or suspicious way.
Make racist comments or direct racial slurs toward Indigenous customers.
Ignore, deny, or provide slow service specifically to Indigenous customers.
Accuse Indigenous customers of being intoxicated.³⁴
Become physically violent towards Indigenous customers.³⁵

4.4. Discriminatory inventory

Part of the aim of the Code is “the creation of a climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the community.”³⁶ Thus, service providers, such as retail businesses, have a duty to provide an environment free from discrimination, to be aware of the existence of poisoned environments, and to take steps to respond and eliminate them.

Images and words, such as signs, can create poisoned service environments. For example, some businesses sell merchandise that contains derogatory terms related to Indigenous people,³⁷ offensive imagery including names and logos of sports teams,³⁸ or Indigenous-themed Halloween costumes (which are often based on inaccurate and harmful stereotypes about Indigenous people and hyper-sexualized).

Furthermore, discriminatory displays of names, words, and images are also prohibited under the Code if they indicate an intention to infringe or incite the infringement of the rights of others.³⁹

The practice of stocking Indigenous-themed merchandise may undermine the dignity of Indigenous people and violate the Code. Businesses have an obligation to ensure that a poisoned environment does not exist for Indigenous customers (as well as others protected under the Code) through sales of inappropriate merchandise.

4.5. Discrimination related to Indian Status cards

Indian Status (Status) is the legal standing of a person who is registered under the Indian Act.⁴⁰ A Status card is a government issued identification card that identifies a person under the Indian Act. Inuit and Métis persons are not eligible for Status or Status cards, nor are many First Nations people who fall outside of the identity structures set out in the Indian Act by the Government of Canada.

Status cards provide specific benefits, rights, programs, and services to First Nations people registered as Status Indians under the Indian Act,⁴¹ including but not limited to a tax exemption for the eight per cent (8%) provincial portion of the Harmonized Sales Tax (HST) on qualifying goods. Tax exemptions typically come from Treaty and related agreements between the Crown and First Nations, where the Crown offered certain services, benefits, or rights in exchange for land. First Nations individuals may also use their Status cards as a form of photo identification.

It is important to note that an individual’s Status does not expire. A Status card is sufficient to access the benefits, rights, programs, and services to which a Status individual is entitled (this includes the HST exemption on qualifying goods), regardless of any expiration date on the card.

The eight per cent (8%) portion of HST is exempted on qualifying goods and services purchased off-reserve. The exemption can be claimed at the time of purchase (called “point-of-sale”), or through a mail-in rebate⁴² requested to the Ontario Ministry of Finance after the sale or after making eligible purchases online where tax exemptions are typically unavailable at the point-of-sale. Status individuals must purchase the eligible goods or services for personal use or consumption and not for other people unless as a gift.

While vendors can provide an eight per cent (8%) tax exemption at the point-of-sale to Status individuals on qualifying purchases, as long as certain procedures outlined in O. Reg 317/10 to the Retail Sales Act⁴³ are followed (such as record keeping requirements),⁴⁴ vendors do not have a legal obligation to provide the tax exemption at the point-of-sale per section 8(1) of O. Reg 317/10.⁴⁵

Not providing First Nations customers with the option to receive the partial HST exemption at the point-of-sale is likely not discrimination under the Code on its own.

Racism, discrimination, stereotyping, and harassment related to the use of Status cards are widespread and rooted in a lack of public knowledge.⁴⁶ Many people, including business owners and employees in the retail industry, are unaware of:

the history of Indian Status cards,
the procedures to be followed when providing a tax exemption at the point-of-sale,
what information must be collected when providing a tax exemption, and
the fact that Status cards are a valid form of identification.

As a result, First Nations people can experience Code-related discrimination while shopping when they try to use a Status card to get a tax exemption at the point-of-sale and/or when they use their Status card as a form of identification. In some cases, non-Indigenous people also perpetuate racist behaviours and remarks against First Nations people⁴⁷ when Status cards are presented or mentioned.

4.5.1. Tax exemptions

As previously mentioned, if a retailer refuses to provide the tax exemption at the point-of-sale, that is likely not discrimination under the Code because there is no legal obligation for vendors to do so. However, Code-related discrimination may still occur when a Status individual tries to get a tax exemption at the point-of-sale, regardless of whether the exemption is provided.

A First Nations person may be discriminated against after presenting a Status card if business owners and/or employees:

Make race-related comments (e.g., commenting on whether a customer looks Indigenous or asking a Status card holder about their blood quantum).
Express negative comments about Indian Status (e.g., saying that Status holders receive an unfair advantage or that Indigenous people receive free stuff).
Behave as though providing a tax exemption is a hassle even though the business’ policies allow for the tax exemption to be provided at the point-of-sale.
Act rudely toward a First Nations customer after a tax exemption was requested or after a customer’s Indian Status was mentioned (e.g., toss Status card back at customer).
Expressing negative attitudes toward Indian Status or the customer through body language (e.g., eye rolling, scoffing or exasperation).⁴⁸

Status individuals frequently experience such conduct and commentary when they ask if a tax exemption is offered at the point-of-sale, regardless of whether the tax exemption is available. The Code connection in these cases is often that the conduct or commentary is linked to Code-protected grounds (e.g., race and related grounds), rather than the failure to offer a tax exemption.

Lived experience: Discrimination after presenting a Status card

An Indigenous woman was shopping at a grocery store in London, Ontario. When she asked for a tax exemption, the cashier rolled her eyes, grunted, and told her that they would have to call the manager. After ten minutes of waiting, the manager came over and began joking with the cashier about how stupid the process was and referring to the Status card as “a cool tax-exemption card”. After another ten minutes, the transaction was finally completed and the cashier said, “[s]orry, we see so many of these cards that we don’t know how to use them.”

The Indigenous woman who experienced this discrimination wrote:

“I walked away, upset, shaking, almost wanting to cry…it may be cool to be ‘tax-exempt,’ but it’s not cool when I feel uncomfortable and belittled by certain cashiers or businesses who give me a fuss over something that is a right… it reminds me that some businesses don’t like “us” because of the transaction process. It reminds me that I will sometimes be annoying by a few extra buttons, a few extra minutes. It reminds me that I will never be treated equally, even if I am just a customer.”⁴⁹

An Indigenous woman from Kahnawake who lives in Dorval, Quebec, shared:

“Whether it’s just an eye roll, or a (shrug) or sometimes they look at the picture on the card, they look at me and they say, ‘Are you native? Are you full (blooded)?’ Or ‘You’re not 100 per cent ([A]boriginal), right?’ Sometimes I’d just rather avoid that, so I keep the card in my wallet and I just pay full price… it’s not even about the savings – it’s the principle, it’s a right.”⁵⁰

The following behaviors may also violate the Code:

A business offers the tax exemption but a cashier or other employee refuses to provide the exemption to a specific Status individual.
A business owner expresses that they do not offer the exemption because of negative views about Indigenous people and/or Aboriginal rights.

These actions or comments could be discrimination directed at the Indigenous customer, rather than the availability of the tax exemption.

Lived experience: Refusal to provide a tax exemption

An Indigenous family left a Sudbury store feeling traumatized and humiliated after staff berated them for requesting a tax exemption. When the mother first presented her Status card, the cashier seemed to indicate there would be no issue with providing the tax exemption. However, when the transaction was completed, the full tax amount had been charged. The mother flagged this to the cashier who responded argumentatively. A second employee got involved and denied that anything was wrong in an increasingly aggressive tone. The two staff members continued to raise their voices and ultimately yelled at the family to leave.

Other customers present in the store tried to defend the family, which escalated the situation and resulted in one of the cashiers reaching into the register to throw a five-dollar bill at the family and calling security.

When recalling the event, the mother shared her experience that “as people of colour we're allowed to just be ejected from anywhere if anyone calls security on us.”⁵¹

An Indigenous woman was kicked out of a store following her request for a tax exemption. When she presented her Status card, the cashier told her that the store did not accept them. After the Indigenous woman tried to explain what the tax exemption was, the cashier called the store owner by shouting in front of other customers, “There's a lady here that thinks that she should be tax-exempt.” When the owner got involved, the Indigenous woman described that:

“He immediately snatched [the item she was purchasing] out of my hand and told me to get out of the store, that I wasn't welcome there. And I said, ‘Well, you can't kick me out of your store. I haven't done anything wrong. All I'm trying to do is exercise my rights.’ And that's when he came out from behind the counter and opened the door and told me to get out. So I told him that I was going to pursue this because I didn't like the way that I was treated there, and that I had never been kicked out of a store in my life. And he just told me to get out.”⁵²

The store owner later apologized and changed the store’s policy to provide the tax exemption at the point-of-sale, which led the Indigenous woman to drop her intention of filing a human rights complaint.⁵³

4.5.2. Other customers

When other customers respond negatively to the mention of Indian Status or when they harass Indigenous customers, this may also constitute discrimination or harassment under the Code.

This may happen when a Status individual presents their Status card at the cash register to receive their tax exemption. Other customers may make disrespectful comments or indicate negative attitudes through body language (e.g., eye rolling, loud sighing, shaking their head in disapproval) towards the Status customer. Non-Indigenous customers may be frustrated that they must wait longer in line while the cashier collects the required information from the Status customer to provide the tax exemption and/or they may believe that Indigenous people receive unfair advantages. These types of actions and comments can create a poisoned environment.

As first mentioned in section 4.4., businesses must ensure that a poisoned environment does not exist for Indigenous customers (as well as others protected under the Code). As a result, retailers may need to address discrimination and harassment toward Indigenous customers by non-Indigenous customers.⁵⁴

4.5.3. Identification

Many First Nations individuals use Status cards as their main form of photo identification. For example, Status cards may be used as identification when applying for a marriage license, when registering a vehicle, or when required to provide proof of name or age (e.g., retrieve a hotel reservation, purchase age-restricted goods).

There are two types of Status cards,⁵⁵ and both are valid forms of photo identification:

Secure Certificates of Indian Status cards are newer cards that were introduced in 2009, and
Certificate of Indian Status, which are laminated Status cards issued prior to 2009 that many First Nations people still possess and use.

Many businesses and employees don’t know that Status cards are valid forms of photo identification and refuse to accept them. This may be discrimination under the Code if the refusal (or even the acceptance) of the Status card as identification is accompanied by race-based comments or conduct, or if negative attitudes toward Status are expressed through body language.

Up-to-date information about the various versions of Status cards and their history is available on Indigenous Services Canada’s website.⁵⁶ Individuals wishing to use Status cards to access government-regulated licenses should verify identification requirements using government websites. To access some government-regulated licenses, additional identification documents might be required.⁵⁷ Both kinds of Status cards are sufficient identification to prove eligibility for the HST exemption or rebate.

It is important to also note that other valid forms of identification may at times be used by Indigenous people to access services. For instance, a First Nations or Inuit individual may use their NHIB client identification number to pick up pharmacy prescriptions. The same obligations outlined above to provide services in a non-discriminatory manner would apply in such cases.⁵⁸

Endnotes

¹⁹ OHRC, Under Suspicion: Issues raised by Indigenous peoples, webpage. Retrieved on November 21, 2024 from: https://www.ohrc.on.ca/en/under-suspicion-issues-raised-indigenous-peoples

20 OHRC, “OHRC statement on allegations of refusal of service to Indigenous people in Kenora,” Chief Commissioner statement, February 24, 2014; available online: https://www.ohrc.on.ca/en/news_centre/ohrc-statement-allegations-refusal-service-indigenous-people-kenora

21 Logan Turner, “Baseless Facebook posts about Wabaseemoong COVID-19 outbreak a symptom of wider racism, say community members,” CBC News, February 24, 2021: https://www.cbc.ca/news/canada/thunder-bay/kenora-racist-social-media-posts-1.5925748

²³ Ibid.

²⁴ Ibid. at 6

25 Johnson v. Halifax Regional Police Service, 2003 CanLII 89397 (NS HRC) at para 57, cited in Pieters v. Toronto Police Services Board, 2014 HRTO 1729 (CanLII) at para 93; available online: https://www.canlii.org/en/on/onhrt/doc/2014/2014hrto1729/2014hrto1729.html.

26 Jon Thompson, “Ojibway man takes to Tiktok over treatment at Urban Planet in Thunder Bay,” APTN News, July 14, 2022; available online: https://www.aptnnews.ca/national-news/ojibway-man-takes-to-tiktok-over-treatment-at-urban-planet-in-thunder-bay/

27 Radek v. Henderson Development (Canada) and Securiguard Services (No. 3) [Radek], 2005 BCHRT 302; available online: https://www.canlii.org/en/bc/bchrt/doc/2005/2005bchrt302/2005bchrt302.html?autocompleteStr=2005%20bchrt%20302&autocompletePos=1

28 Security guards are not law enforcement, they are private individuals who may only arrest individuals under citizen’s arrest powers. Their powers originate from s.494 of the Criminal Code (Criminal Code, R.S.C., 1985, c. C-46; available online: https://laws-lois.justice.gc.ca/eng/acts/c-46/) and legislation like the Trespass to Property Act (Trespass to Property Act, R.S.O. 1990, c. T.21; available online: https://www.ontario.ca/laws/statute/90t21). For more information, see: Government of Canada, Department of Justice, What You Need to Know About Making a Citizen's Arrest, webpage, retrieved on December 17, 2024 from: https://www.justice.gc.ca/eng/rp-pr/other-autre/wyntk.html; and Justice for Children and Youth, Hot Topics – Security Guards, webpage, retrieved on December 17, 2024 from: https://jfcy.org/en/rights/hot-topic-security-guards/.

29 Radek, supra note 27

³⁰ OHRC, supra note 19

31 Samantha Beattie, “Indigenous man a longtime Giant Tiger customer – until he says he was falsely accused of stealing,” CBC News, February 21, 2022; available online: https://www.cbc.ca/news/canada/toronto/indigenous-customer-giant-tiger-falsely-accused-1.6356810

32 Smallboy v. Grafton Apparel, 2021 BCHRT 15; available online: https://www.canlii.org/en/bc/bchrt/doc/2021/2021bchrt15/2021bchrt15.html

33 OHRC, supra note 19

34 Radek, supra note 27, at paras 262 and 485-487: The Applicant was an Indigenous woman who had a disability and the Tribunal noted that “her disability may have appeared to the [security] guard to be signs of intoxication” and held that it was a factor in the discrimination Ms. Radek experienced.

35 Pamela Cowan, “Man claims he was accused of stealing because he is Indigenous; police investigating altercation at Canadian Tire,” Regina Leader-Post, July 27, 2017; available online: https://leaderpost.com/news/local-news/man-claims-he-was-accused-of-stealing-because-he-is-indigenous-police-investigating-altercation-at-canadian-tire

36 Code, supra note 4, at Preamble

37 “This is our N-word’: Indigenous teacher asks Urban Planet to drop racial slur,” CBC News, October 7, 2019; available online: https://www.cbc.ca/news/canada/new-brunswick/offensive-term-remove-urban-planet-1.5305540

38 OHRC, “OHRC settlement addresses harmful impact of stereotypes on Indigenous youth,” News release, December 13, 2018; available online: https://www.ohrc.on.ca/en/news_centre/ohrc-settlement-addresses-harmful-impact-stereotypes-indigenous-youth; and OHRC, “Letter to municipalities on the harmful impact of Indigenous-themed sports logos,” Chief Commissioner letter, May 13, 2019; available online: https://www.ohrc.on.ca/en/news-center/letter-municipalities-harmful-impact-indigenous-themed-sports-logos-0; and OHRC, “Second letter to municipalities on the harmful impact of Indigenous-themed sports logos,” Chief Commissioner letter, July 13, 2021; available online: https://www.ohrc.on.ca/en/news-center/second-letter-municipalities-harmful-impact-indigenous-themed-sports-logos.

39 Code, supra note 4, at section 13 (1)

40 Government of Canada, Indigenous Services Canada, About Indian status, webpage. Retrieved on November 21, 2024, from: https://www.sac-isc.gc.ca/eng/1100100032463/1572459644986

⁴¹ Ibid.

42 Government of Ontario, Ministry of Finance, HST: Ontario First Nations rebate, webpage. Retrieved on November 11, 2024, from: https://www.ontario.ca/document/harmonized-sales-tax-hst/ontario-first-nations-harmonized-sales-tax-hst-rebate-0#section-5

43 Retail Sales Tax Act R.S.O. 1990, c. R. 31, O. Reg. 317/10; available online: https://www.ontario.ca/laws/regulation/100317

44 Ibid. at section 9

⁴⁵ Ibid. at section 8

46 Union of BC Indian Chiefs, They Sigh or Give You the Look: Discrimination and Status Card Usage, (2022) at 21 and 73-75; available online https://drive.google.com/file/d/1jPTLpjcFLj-ld6gFW-HiYmWmyVXZRYXq/view

47 Ibid. at 75

48 Ibid. at 50

49 Naomi Sayers, “Tax Exemption,” Kwetoday, January 9, 2011; available online: https://kwetoday.com/2011/01/09/tax-exemption/

50 Christopher Curtis, “Mohawks are getting tired of explaining to cashiers why they don't have to pay QST,” Montreal Gazette, September 9, 2015; available online: https://montrealgazette.com/news/mohawks-are-getting-tired-of-explaining-to-cashiers-why-they-dont-have-to-pay-qst.

51 Kate Rutherford, “ Whitefish River First Nation family wants apology after security called to remove them from Sudbury store,” CBC News, January 5, 2024; available online: https://www.cbc.ca/news/canada/sudbury/whitefish-river-first-nation-family-wants-apology-after-security-called-to-remove-them-from-sudbury-store-1.7074843

52 “Morris Home Hardware facing human rights complaint,” CBC News, September 12, 2014; available online: https://www.cbc.ca/news/canada/ottawa/morris-home-hardware-facing-human-rights-complaint-1.2765005

53 “Morris Home Hardware owner sorry for not honouring tax exemption,” CBC News, September 29, 2014; available online: https://www.cbc.ca/news/canada/ottawa/morris-home-hardware-owner-sorry-for-not-honouring-tax-exemption-1.2781745

54 Josephs v. Toronto (City), 2016 HRTO 885; available online: https://www.canlii.org/en/on/onhrt/doc/2016/2016hrto885/2016hrto885.html

55 When a Status card is lost, stolen, or destroyed, Indigenous Services Canada may issue a Temporary Confirmation of Registration Document (TCRD), which is valid for 1 year. The TCRD also confirms registration under the Indian Act and eligibility for certain rights, benefits, and services but individuals seeking to use the TCRD may be required to present one additional piece of valid acceptable identification with the individual's picture to make sure the name matches on the temporary document. For more information, see Government of Ontario, supra note 42.

56 Government of Canada, Indigenous Services Canada, Is your status card valid?, webpage. Retrieved on November 21, 2024, from: https://www.sac-isc.gc.ca/eng/1100100032424/1572461852643

57 Government of Ontario, ServiceOntario, Acceptable identity document, webpage. Retrieved on November 21, 2024, from: https://www.ontario.ca/page/acceptable-identity-documents

58 Harry v. Trail Apothecary Ltd., 2004 BCHRT 238; available online: https://canlii.ca/t/h09pt. The BC Human Rights Tribunal found that discrimination occurred when a pharmacist refused to directly bill NIHB for wrist braces because the pharmacy had a policy of not billing for medical equipment for less than $300. The pharmacy could not show that accommodating the applicant would result in undue hardship, partially because they already had a practice of billing NIHB directly for medication.

4. Discrimination in retail settings