Zero tolerance and unwritten rules
There is a sign facing traffic on the southbound Don Valley Parkway in Toronto between York Mills Road and Lawrence Avenue that announces that the 90km per hour speed limit will be enforced with zero tolerance. The sign has been there for as long as I can remember likely dating from the mid 1990’s, shortly after the phrase was coined.
“The term “Zero Tolerance” appeared for the first time in a report in 1994. The idea behind this expression can be traced back to the Safe and Clean Neighborhoods Act, approved in New Jersey in 1973…..According to scholars, zero tolerance is the concept of giving carte blanche to the police for the inflexible repression of minor offenses… ”[1]
During periods when the Don Valley Parkway was not congested, I conducted the personal experiment of driving at the posted speed limit on a variety of occasions.
Unless I drove in the far right lane, a constant stream of drivers exceeding the speed limit by ten, twenty and often thirty km per hour flashed their headlights, swerved around me – often with great drama to signal their annoyance – and just as often either shaking their fists or giving me the finger as they completed the passing action. My adherence to the zero tolerance policy visibly annoyed these drivers.
I invite any driver in Toronto to replicate the experiment at their peril.
Two conclusions are obvious. The first is that, despite the sign, there is no zero tolerance policy for drivers who, within limits, exceed the speed limit on the Don Valley Parkway. The second is that the accepted rule respecting speed on the Don Valley is a standard that greatly exceeds the one which the zero tolerance policy purports to enforce.
In other words, almost everyone who sees the zero tolerance sign instantly concludes that no such enforcement policy exists and understands that higher speeds are the norm. Those higher speeds become a convention of sorts – an unwritten rule of road conduct.
A third conclusion that is far more important relates to the recent scandals surrounding three Senators and Toronto Mayor Rob Ford. The likelihood of (unenforced) zero tolerance rules being enforced increases with public visibility and admission of a rule infraction that can be made subject to zero tolerance. The unwritten rule of conventional conduct becomes defunct and zero tolerance prevails.
Let’s start with the Don Valley Parkway example. A driver accelerates to 120 km per hour past the zero tolerance sign and begins to pick up speed surpassing the unwritten rule of conventional speed. The driver accelerates through 130 km and 140km weaving in and around cars. Finally the driver is caught. At that speed, the license is confiscated on the spot and the driver is detained. This one infraction may be sufficient for the person to lose their license.
The speed infraction is calibrated as the difference between the 90km zero tolerance limits and the 140 km speed the driver was travelling. The speed infraction is not calibrated based on the speed most drivers actually travel when the Parkway is uncongested.
Three Canadian Senators
Now let’s move on to the Senators. Mr. Brazeau, Mr. Duffy and Ms. Wallin were appointed as Senators from Provinces from which they hailed but did not reside. This broke the zero tolerance rules but not the conventional or unwritten and widely accepted rules in force at the time.
The three Senators were all actively involved in partisan political activity which is not part of their Senate mandate and which is not properly within the ambit of the Senate job. This activity broke the zero tolerance rules but not the conventional or unwritten and widely accepted rules in force at the time.
The three Senators claimed expenses as if they lived in the Provinces from which they hailed but did not reside. These claims broke the zero tolerance rules but not the conventional or unwritten and widely accepted rules in force at the time.
The three Senators turned to the government to get assurances (in effect) that unwritten rules would prevail over zero tolerance rules. These assurances were given and as public visibility increased, the government – at first – reassured the Senators that the unwritten or conventional rules would prevail.
But let’s go back to my third conclusion:
The likelihood of (unenforced) zero tolerance rules being enforced increases with public visibility and admission of a rule infraction. The unwritten rule of conventional conduct becomes defunct and zero tolerance prevails.
This means that the Senators are incorrect when they said the rules were changed. They were not changed at all. What happened is that the zero tolerance rules that were always there were pressed into enforcement and the unwritten, loose and conventional rules went by the wayside.
The government is also incorrect when it made pronouncements about rule breakers facing the consequences of breaking rules. Why? Because they played by the same unwritten rules as the Senators and when visibility and admissions escalated – along with cover-ups that exponentially increase visibility – it was the government itself that invoked the principles of zero tolerance that they earlier sought to avoid. The government changed the enforcement standard while pretending that nothing had changed.
In many ways, both the government and the Senators played the role of a Parkway speed demon until high visibility and potential mayhem caused unwritten rules to be traded for their zero tolerance counterparts.
Mayor Rob Ford
Now let’s move on to the Rob Ford scandal. Despite its international scale, the jokes, its vulgarity, its sadness etc., it is important to remember that Mr. Ford is being caught up in a movement from conventional or unwritten rules to zero tolerance enforcement. Like the Senators, he doesn’t appear to understand the relationship between zero tolerance and convention and how the public moves from the latter to the former on the basis of visibility and admission.
He came to office with the public’s knowledge of ‘911’ calls from his home and drug and alcohol convictions. The fact that the unwritten rules allow this behaviour is proved by his overwhelming election victory. He knows like the rest of us that politicians sometimes drink and drive and that some of us can have the odd domestic problem that gets out of hand.
Most politicians have likely used illegal substances at some time over their life course. Most have at some point used a vulgar phrase. Ford himself keeps pointing to this with seeming incomprehension as to what is happening to him.
Mr. Ford knows like all of us that there is a gulf between unwritten rules and law enforcement practices but through his flawed formulation of the placement of the wall between his public and private life, Mr. Ford carried on.
But going back to my third conclusion, when the police department made Mr. Ford’s activities visible after he had already denied them, they became even more visible. And when the violations that had been private became public, it became clear that his excesses resembled those of the driver who motors down the Parkway at 140 km an hour. It is the classic case where zero tolerance rules become enforceable and the unwritten conventions are gone.
So is Ford now accountable to a different standard than others? You bet he is! He is now in the world of zero tolerance for all violations with no slack.
Did anyone change the rules? The answer is no. We simply changed the enforcement standard just as we do for really fast drivers, Senators and governments that got caught in high visibility actions following a period of trying not to get caught in violations of a rapidly changing enforcement regimen.
Mr. Ford is in some way right to ask other city politicians and the media if they are being held to account in the same way he is. The fact is that they aren’t. They are still being held to account by the same rules that let most of us have problems in our private life that are not subject to public scrutiny. These same loose rules and conventions allow politicians (e.g. Kathleen Wynne, Justin Trudeau) to consume illicit substances in small portions at some point during their lives without consequence. These rules allow politicians to tell off colour jokes in trusted company but not in public (e.g. ‘W’ and his major league a**hole comment)[2].
What happens next?
The clear juxtaposition of zero tolerance enforcement and the conventional rules of public and private behaviour has a surprisingly short history. Zero tolerance has only been around for two decades and most studies show – somewhat ironically – that for minor offences, it does not work that well[3].
Yet it is clear that it does work very well on high visibility offenders that are slow to understand that enforcement standards change with the visibility of their actions and that any and all admissions of guilt must adhere to the far harsher standards proffered by zero tolerance of violation, not the loose set of unwritten conventions that were not violated.
The analogue of the very fast driver who gets caught tells us that in some ways, the Senators and Rob Ford don’t have a chance. But the driver who gets a conviction and loses his license does not lose it for life. Redemption is always possible and years of good driving can erase a bad driving record.
If the Senators don’t get charged for their actions, they will eventually come back. If they fail to understand the conditions under which strict rules get enforced, they will continue to flounder. Mr. Ford will continue to flail about until he learns that because of events, visibility and slow admissions, the standards of enforcement have changed and that these standards simply do not apply to others of his calling.
But if Mr. Ford – who has not been charged or convicted of anything – can make the case to the public that those who made him visible (the police and media) did so unfairly, he will have a new arrow in his quiver. If he keeps his persona intact as the consummate outsider, he keeps another arrow. If he addresses ‘taxpayers’ while everyone else frames the public as ‘citizens’, he keeps another. If his record remains ambiguous, he will get the benefit of the doubt.
Ford has already done two things he needs to do. He has said he is getting help and he has apologized profusely.
Mr. Ford only has one more thing to do: realize and accept that he is being held to a different standard of zero-tolerance enforcement that the public largely supports even though it does not apply to others. Once he does that, he may have enough arrows to win an archery contest next October.
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