The Relationship Between Law, Private Enforcement, Social Pressure and “Snitching”

As it has with so many of our regular practices, the coronavirus crisis has highlighted or brought to the fore the advantages and disadvantages of the relationship between the law, private enforcement, social pressure and “snitching” in enforcing desirable social practices.

Law requires legislation, regulation or by-laws, whether in public or private contexts. Private enforcement means a private actor downloads requirements to those using its services. Social pressure may work through personal confrontations, glares, dramatic or subtle forms of avoidance or ostracism and the other multifarious ways in which someone (or some group of people) may show their displeasure at the conduct of others. I use the term “snitching” to cover permitted and protected reporting of inappropriate behaviour, including whistleblowing (not quite “snitching”, in my view), duties to report and practices that states encourage to help them enforce law and state power or to maintain dominant social practices. In keeping with the pandemic of the time, I will use social distancing as the focus of my discussion.

I begin, however, more generally with some examples of how these three methods involve the populace in law enforcement.

The impact of social pressure, which has existed forever one assumes, has heightened in the internet age, less as far as law enforcement is concerned than with respect to certain kinds of conduct that might or might not be against the law. Thus “inappropriate” comments or conduct, once taken up by social media, may lead to loss of jobs and acclaim, and in some cases conduct leading to legal charges, with the comments or conduct occurring recently or many years ago. I do not say this is necessarily a bad thing, but the reality is that the degree of “badness” attracting these responses may vary. One of the recent instances (a good one, for the most part, with some exceptions) is the “me too” movement, which has had a significant impact on identifying and calling out the improper sexist/sexual assault conduct of many well-known figures.

Most organizations use peer pressure (a form of social pressure) to keep people in line. Co-workers, students and others play a role in keeping others from stepping too far outside accepted behavioural norms for the organization. Those who are immune to social pressure or who deliberately develop an identity that resists social pressure are “outlaws”. And it depends on whether their behaviour is merely inconsistent with how their colleagues behave in annoying ways or whether it contravenes the rules and regulations of the organization, making it amenable to formal sanction. In the latter case, they might be admired as rebels.

Snitching is a whole other game. At its weakest, it refers to the tendency of some people to tell on others, beginning in childhood; usually, this is not viewed as desirable by others around them, even when they might not like the impugned conduct themselves. In this sense, snitching breaks the norms governing group behaviour and identity, particularly as they relate to authority.

Snitch or “hotlines” for reporting people failing to observe whatever laws and rules are in place do not have a happy history. For example, during the Canadian federal election campaign in 2015, the Conservatives “promised to establish an RCMP tip line for reports of ‘barbaric cultural practices'” (see here) to support the Zero Tolerance for Barbaric Cultural Practices Act. It was not well-received and was credited by some as contributing to the Conservatives’ election loss.

In Germany during the war and in East Germany during communist rule, snitching was expected. Today, the AfD, Germany’s far-right party, encouraged snitching on teachers who don’t support their platform.

However, snitching can become a noble activity. This is the case with whistleblowers who risk their jobs (for example) or more extensively, their futures, to report unethical or illegal conduct within their organization. The most famous recent whistleblower is the anonymous intelligence official who reported the unusual classification of information relating to President Trump’s conversation with Ukrainian president about exchanging information about Joe Biden and his son for support that had been allocated by Congress to Ukraine. While many people went to great lengths to protect the whistleblower’s identity, the President and others saw no reason not to name him. (For a quick review of the evolution of whistleblower protection in the US since 1989, see here.)

Whistleblower protections in Canada are varied and not particularly strong, according to this law firm website; they have been criticized as “the object of ridicule globally among all the international whistleblower organizations” (see here). However, a Canadian commentary describes them as “rank[ing] quite well compared to other countries”, although not extending to most employees.

Legal practitioners are familiar with the duty to report wrongdoing by other members of the law society, or wrongdoing by themselves for that matter (on the latter, see article 7.1-4.4). For example, article 7.1-3 of the Code of Professional Conduct of the Law Society of Ontario tells lawyers to report wrong doing (with some exceptions) to the law society and article 7.1-4 tells lawyers to encourage clients to report dishonest conduct.

So, how does all this fit in with the enforcement of laws and by-laws relating to the coronavirus pandemic?

There are the obvious enforcement mechanisms identified in legislation, specifically legislation declaring emergencies and the orders, which take the form of regulations, under these statutes. (See my post on Ontario’s Emergency Management and Civil Protection Act (EMCPA) here.) The fear here is that, although in form orders might seem “fine”, in substance they might fail to observe the democratic principles, including civil liberties, that we believe should characterize our society (on this point, see my Slaw post on the obligation during the emergency to observe the social contract). By-laws are being enforced by enforcement officers designated for this purpose.

Somewhat overzealous enforcement in some cases, particularly of municipal by-laws governing the use of parks, lead some people to flout the laws more than they otherwise would. There is a sense, justified or not, that the Toronto by-laws go too far, for example. Michael Bryant, executive director of the Canadian Civil Liberties Association, says the CCLA will contest the tickets imposed because of minor contraventions of recreational prohibitions: according to The Globe and Mail, he considers “the restrictions designed to limit the spread of the novel coronavirus are an abuse of power because the recreation activities involved are usually harmless and should be met with warnings rather than costly fines.” Perhaps more significantly, he pointed out, “’We don’t live in a police state. Politicians should never be giving direction to police or bylaw officers’…”

Orders under the EMCPA may also go further than properly designed law. I am thinking specifically of a provision under the second version of the closure of non-essential businesses regulation (O. Reg. 82/20). Subsection 1(2) of Schedule 3 of O. Reg. 82/20 provides as follows:

The person responsible for a place of business that continues to operate shall operate the business in compliance with the advice, recommendations and instructions of public health officials, including any advice, recommendations or instructions on physical distancing, cleaning or disinfecting.

This provision transforms “advice” and “recommendations” of public health officials into the equivalent of law, since failure to comply with them will constitute a contravention of the regulation and thus of the EMCPA. As I pointed out in my earlier post,

not following advice or recommendations becomes an offence under O. Reg. 82/20 and thus makes the individual and business liable for the fines ranging from up to $100,000 for individuals, up to $500,000 for directors and officers of a corporation, as well as imprisonment of not more than one year in both cases, and up to $10,000,000 for a corporation as provided for under the EMCPA.

I used the example of wearing masks in grocery stores. The health experts’ advice on wearing masks has evolved dramatically, from discouraging people from wearing them because they are needed for healthcare workers and because those wearing them might become complacent about otherwise being careful, to suggesting if people want to wear them, they should consider them supplementary to social distancing, to now recommending them in particular contexts. Just in the last few days, Metrolinx has advised passengers on Go trains and buses (of whom there are still a few, such as essential workers) about new recommendations by Transport Canada. According to Transport Canada’s website,

Passengers travelling by rail or motor carrier/bus modes of transportation are also strongly encouraged to wear non-medical masks or face coverings as much as possible. Passengers may be asked by the transportation operator to cover their noses and mouths when physical distancing is not possible.

In fact, wearing a mask (when the train or bus operator decides physical distancing is not possible) becomes a “requirement” in the same way going certain security measures have become requirements when travelling by air (one can refuse, but then one is not allowed to board the plane). Thus Metrolinx now states on its website, “staff has the right to deny boarding to passengers when a vehicle may not permit the recommended physical distancing and the passenger does not have a mask or face covering”, but continues to reassure travellers that “at this point those occasions have been very rare”.

Back to the requirement that essential businesses comply with “advice” and “recommendations”. The impact resulting from the shift in health officials’ view of the utility of masks may raise two of the ways in which the emergency rules may be “enforced”. As more emphasis is placed on masks, social pressure may convince those who do not wish to wear masks to do so and something that many people looked upon askance just a a couple of weeks ago as an example of overdoing it, the wearing of a mask, may now be seen as a mark of civic virtue, an act of the responsible citizen. But the other impact comes from subsection 1(2) of Schedule 3 of O. Reg. 82/20: it does not specifically mention the wearing of masks (indeed, when O. Reg. 82/20 was amended by O. Reg. 119/20 to include this provision, masks had not been given the prominence they now have) but it does refer to social distancing. It is not hard to think that in implementing social distancing, grocery store operators be “advised” to consider requiring customers to wear masks because of the difficulty of maintaining the required physical distance between employees stocking shelves and produce (as opposed to the cashiers). (Disclosure: I started wearing a bandana this past Friday when grocery shopping precisely because of concern about employees “on the floor”.) This advice then becomes a requirement of entering the store. And the grocery store operator becomes an enforcer of the law through refusing customers who won’t wear a mask. This is different from the store operator seeking to evict someone creating a fuss and calling the police for assistance; this is a direct link between “advice” turned into a requirement (because the store must comply) to enforcement of that requirement by the store.

Social pressure has probably become as much a way of enforcing physical distancing as by-law enforcement, especially if we’re talking about walking in the streets or in parks. This kind of physical distancing has been voluntarily accepted by the vast majority of people in Canada because, I believe, we trust the medical evidence that it has been effective. (Having said that, I’m surprised when I point out to someone — or two people — passing by very close to me when I can’t move away how disdainful or unaware they can look.) Thus people who do not practise physical distancing are placing themselves outside the generally accepted conduct exhibited by good citizens who are concerned not only about themselves but others. (On this point, see “Quarantine shaming: Social distancing has an entirely new etiquette and we had better adapt quickly” by Calum Marsh in the National Post; I also blogged about etiquette for walking in the park based on my personal experience on idlemusings.blog.)

Social pressure can morph into snitching without too much difficulty. About a week ago, I heard a noise somewhere in my neighbourhood and discovered seven to eight young men kicking around a soccer ball in a backyard one street over. A couple of contraventions, of course: more than five people in a group who did not appear, at least, to be a single household (a breach of subsection 1(1) of Schedule 1 of O. Reg. 52/20 regulation under the EMCPA) and certainly not adequate physical distancing). When I told people about this, some asked me if I complained about these guys. I didn’t: the fact is, I’m not comfortable, I said, “snitching”.

The encouragement of snitching has surfaced again in Germany where people have been reporting on people failing to follow the rules imposed to counter the coronavirus. Bill De Blasio, mayor of New York City, has encouraged people to snap photos of people not observing social distancing and report them (“De Blasio: Ratting out neighbors for social distancing isn’t ‘snitching’”, New York Post). Premier Doug Ford has said all options, including “snitch lines”, are on the table to enforce social distancing (see here). (For an argument against, see Jen Gerson’s “Don’t let coronavirus turn us into a nation of snitches” in MacLean’s.)

Of course, we expect people to call the police (or have no problem if they do so) if they see someone robbing a store or attacking someone. We don’t think that’s “snitching”. It’s clear why: these are contraventions of the law. During an emergency, we may be concerned that government will use our fear, on the one hand, and basic trust, on the other to overstep their bounds and the behaviours which we are encouraged to practise (by medical professionals and other experts) or in which we are forbidden to engage are in ordinary times ordinary conduct, a major aspect of our communal nature. Now this conduct is wrong, uncivil, dangerous.

Do people report on others because they genuinely believe their behaviour is dangerous, because their conduct is wilful ignoring what society has “agreed to” or because they resent that these people are doing the things they want to do — have guests over or congregate in the park? Apparently, lots of people potentially feel one way or the other; Gerson indicates that “Alberta Health Services Alberta Health Services recorded 9,000 COVID-19-related complaints this month”. Toronto’s 311 line serves as a coronavirus inappropriate activity hotline.

Both snitching and social pressure turn us into agents of the state to some degree. However, social pressure is a tool we use to persuade others facing similar challenges to us. (That the challenges are similar is not quite true, of course, since some people’s isolation at home is far more difficult and perhaps more dangerous than that of others; and some people cannot isolate at home because they do not have a home.) Even so, more people than not can find ways to address their frustrations without breaching physical distance requirements.

Snitching, however, as that term is properly used, reminds us of its nasty history, countries in which the citizens act as agents of the state to betray their friends and neighbours and sometimes their family members. Synonyms for “snitching” in Merriam-Webster include “backstabbing, betrayal, business, disloyalty, double cross, faithlessness, falseness, falsity, infidelity, perfidy, sellout, treachery, treason, two-timing, unfaithfulness” and the even more evocative “canary, double-crosser, fink, informant, narc, … rat, …
squealer, stoolie, tattler, … weasel … stool pigeon” in the online Thesaurus. But if these terms don’t bother you, apparently The Toronto Star has published a “handy guide to snitching” (see a report of it here).

In this time of emergency, there are many interrelated — even if informally — ways the law or “strong recommendations” are enforced: through the law itself, through private entities that in following the law (even if only “advice” or “recommendations”) pass along the obligation to their customers (as, of course, they do in many ways in normal times), through the social or peer pressure that we exert on each other and through being willing to report on wrongdoers, however mild the wrongdoing. Of course, we have good reason to be part of the enforcement apparatus, however casually linked, because we want to see the end of the crisis. And then we’ll all revert to our previous easy-going, live and let live (pun intended) relationship to our fellow residents. Won’t we?