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?

Comments

  1. On the one hand, without any incentives, whether monetary or political favour with the ruling party, for “snitching” it may be easier to “revert to our previous easy-going, live and let live” selves.

    On the other hand, there may be incidents in the workplace where employees suffering from contagious (or what may be perceived) ailments may return to work out of fear of losing their job or for a lack of safety net that would allow them to take the needed time off to recuperate. In some instances the fear of the pandemic may leave scars provoking retaliation from co-workers whereby the sick worker is reported to management or shunned by their peers. Returning to normal may not mean returning to the status quo. To get back to “normal” our laws and policies in the post-pandemic world will have to ensure the well-being of “everyone” inclusively as a foremost priority.

  2. As Canadians are well aware from history as well as Charter jurisprudence, all laws are not good laws. The understanding of and commitment to the procedural elements of working that out might be more hazy in the minds of most Canadians. But I wonder if to some extent there are two instincts as well as some logic at work here. The two instincts are: 1) live and let live; and 2) protecting the vulnérable.

    The whole spirit of what we are doing is to prevent the spread of COVID-19, but the fact is that the vast majority of us are as healthy as horses and would not be transmitting or receiving COVID-19 (especially after many weeks of lockdown). So the probabilty that any of the 5 people playing soccer have active COVID-19 is very low; in consequence the probability that they might be spreading it is very low; the likelihood that they are not in breach of the intent (not to spread) of the orders is very high; and the health and social benefits of their activity is obvious. As well, presumably they know each other and can risk-manage things themselves to some extent. The idea that government powers might be used to swooop in to stop that seems pretty un-Canadian to me. The social contract is to be diligent about not actually spreading the virus. Snitching in this case would not honour live and let live, and as a matter of logic would most probably not advance the goal of stopping the spread of COVID-19 one iota.

    On the other hand, in an environment where large numbers of people are passing through, grocery stores, for example, it is naturally more risky due to volume – it may be that if 2000 people go through a grocery store in one day, 20 people with COVID-19 have been walking around that store during the day and touching stuff (assuming that some percentage of COVID-19 sufferers are aware of having it and choose not to shop while sick, and roughly accounting for the fact that many, many cases of COVID19 are now not in the community but rather in retirement homes), bumping in to people, pressing the debit machine, etc. If there were infractions in this kind of environment, it would seem to violate our instinct to protect, and sheer logic, as such violations would interfere with what we are trying to acccomplish. This might be worth mentioning to see that the problems are corrected. To protect and correct; not to punish. This would be logical.

    The utility or risks of the activity and/or restriction probably come in to play in snitching. Many of the restrictions seem pointless. For example, my aunt wants a new roof but this is not on the essential list so no new roof for now even though neither she nor the roofer is likely to get COVID-19 while he is up putting a roof on her house. In the meantime, the roofer’s livelihood is likely going down the tubes. Ditto for landscapers. My aunt is also an avid allotment gardener and donates a lot of her organic fresh produce to a homeless shelter. But the City shut down the allotment gardens even though they all have their own implements and one would be hard pressed to come within 2 metres of anyone in the allotment garden (having been there, I can verify this). My aunt will not break the law or official advice and do her allotment garden or arrange for a new roof, but if she did would people « snitch »? If they did, what would the social utility of the snitching be? Clearly government actions and orders themselves are just too blunt and are overreaching in several particular areas. The government might even acknowledge this and suggest it just has not had time to do anything other than impose overly blunt measures. Once this is all over, will it even contest challenged charges? And since the courts are all closed, possibly people should just challenge their charges and have the whole dispute bound over until the courts open again…

    That said, there are clearly some people who have not turned their minds to all the competing considerations, and who maybe envisage the police and the government as being ‘in charge’, and that this is a good thing. Fortunately, we don’t actually live in that country, and I certainly don’t want to. But some people might just snitch in a non-logical fashion.

    I agree that there are some serious questions surrounding the enforcement of the evolving advice of officials with police powers. It is fundamentally undemocratic as they are unelected, and their opinions are not subject to challenge or debate. And they ought to be. I just note here that many people chose to wear masks well before it became the official mantra using their own assessment of the facts and their own judgment. This just highlights the abilities of autonomous people to make smart decisions for themselves.

    I sometimes think I will be forced to manifest in support of my own civil liberties at some point: overreaching police actions, snitch lines, limits on freedom of association, freedom of movement, proposals to by the government to limit people’s ability to say things the government deems incorrect….. It’s a very scary state of affairs.

    At some point someone may have to snitch on the government to the courts.

  3. Verna, I agree that “returning to normal” raises important issues that might relate to individuals, as you say. I also think a real difficulty with the concept is that we don’t know enough (we are told) about COVID-19 (or the coronavirus) to know about impacts after someone has been infected and apparently recovered, whether they are immune or whatever. We also don’t know about resurgences of the virus, although we are told to expect it. I don’t say this to justify the kind of treatment you indicate might happen after people go back to work (far from it), but merely to suggest that the future is to some extent unknowable and we have to be very careful about how we “return to normal” and when that might actually be achieved, if ever.

  4. Sheila, thanks for your comment, which raises some important points. I also have concern about some of the enforcement that’s taken place and I think the CCLA’s intention to bring cases once we’re out of this (whenever that is) is the “snitching” on government you refer to in your last sentence! I have concern myself about how hard it is to find (at least some) regs or statutes that have been passed or enacted over the past couple of months and have written about that. Let me just put a bit of a difference case in support of some of the activities that aren’t permitted. To some extent they are arbitrary, I agree, but I think the approach taken by the government has been to identify broad categories and sometimes some activities caught by that don’t always seem to make sense. It’s always possible, too, to identify specific instances of activities that seem okay but are forbidden. In my own case, last year for the first time, I had someone come to help clean up my garden; she got in touch to ask about this year – this was just before the government was putting restrictions in place. Within a few days, things changed and I asked her if she thought she could carry on her business; under the original essential businesses designations, she probably could, but when that changed, I couldn’t see how she could. The fact is she could do the work without our breaching physical distance requirements (although last year, that would have been more difficult because didn’t know her and she didn’t know my garden), but the rule isn’t about her, it’s about how important the work she does is. I’m sorry for the loss she is experiencing (although for all I know she is working for other people). As for roofing in particular, maybe one roofer can do your aunt’s roof, but when I’ve seen roofing done and when I had mine done, more than one person was involved, and it wouldn’t always be possible and it wouldn’t have been in my roof’s case, to meet physical distancing requirements. (I should add, if your aunt’s roof was leaking, I think it might well fit within an essential category to have it fixed.) As for the guys kicking the ball around, possibly none of them had COVID-19, but who knows, including them. They would go out and interact with other people and if they were infected, they could infect those people. The way this virus spreads is incredible: I saw a diagram showing that one person with COVID-19 going to a restaurant (that person probably didn’t know they had it) infected nine other people who were sitting around them at the same and at close tables. Being healthy is not a barrier against either getting or transmitting COVID-19, although it a healthy person getting may have only mild symptoms they don’t attribute to COVID-19 and recover, but in the meantime, they’ve gone out and infected others. I agree some of the restrictions don’t all seem to make sense and I also think there should be other restrictions that aren’t required, but I guess I do agree with the view that we should operate on the assumption that everyone has COVID-19 (including ourselves) so that we maximize physical distancing, other than with our “households” and that is as much a practical issue as anything else (so, for example, I live with someone who is also able to work at home and so we limit going outside to trips to the grocery store and walks), but if one person in the household does operate outside, it becomes more difficult. Having said all this, I’m not a big fan of snitching and think one of the problems is that it is so subjective and can of course be ill-motivated; at the minimum, I think some of the by-law/reg enforcement may also be too subjective.

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