Servamus – Fearing the Image of the Vancouver Police

Servamus.

It is often said that in an armed law enforcement agency – be it military, paramilitary, or police – that exists within a democracy, the highest rank is civilian. That democratic hierarchy of rank is evident in the motto of the Vancouver Police Department:

Servamus.

We serve.

There is little genuine argument against the public benefits conveyed by the enforcement of traffic safety (excluding those arguments about police resource allocation and specific traffic laws, but those do not deal with the validity of traffice policing itself).

“The [Vancouver] police force has up to eight replica cops that initially will be deployed on Knight Street to try to reduce speeding and traffic fatalities,” wrote Neal Hall in Friday’s Vancouver Sun.

Servamus.

In the fictional book, “The Theory and Practice of Oligarchical Collectivism,” a creation within George Orwell’s novel, 1984, Big Brother rules through fear. The fear of the phantom is more powerful than any real Big Brother could be as a tool to elicit obedience.

Obedience and fear?

Servamus.

Hall’s article in the Sun mentions a truck driver duped into talking to one of the cut-outs by its realism. The article also implies that we should praise this initiative because, as Hall paraphrases Staff Sergeant Ralph Pauw, “the fake officers were relatively inexpensive to make.”

I am not suggesting that traffic enforcement, even through the slowing effect a parked cruiser has, passively, on traffic, is bad. I suggest that the VPD is trading now on fear, not directly of being ticketed, but of the presence of a police officer. Non-criminals are afraid of the cops, and that’s something that the VPD’s public relations people should be working on, rather than the Traffic Unit turning into a general enforcement tool.

Servamus.

The Vancouver Police Department’s initiative will slow speeders; it may save a few lives. Saving lives is generally the bright line test for such initiatives as this. As someone who watched a pedestrian’s life squeeze out of her under the wheel of a car, you’ll find no argument for the general validity of such a test. But is there any way to guess what cost may arise from the blatant capitalization of an emergent us & them mentality? Was there no way to improve traffic safety without nurturing fear?

Servamus.

I suggest the application of a more intellectually rigorous test, which may be able to account for some more remote yet vastly more significant and heinous consequences than the possible fates of those lives. The only cost greater than the lives of those killed in car crashes in Vancouver that could have been prevented by such an initiative would be a larger number of lives lost by the consequences of implementing such initiatives.

Could the momentum of enshrining the police vs. citizens paradigm – of separating and elevating the police – lead to the political annihilation of servamus, and thus undo certain democratic political principles such that lives are forfeited?

I believe that instead of the simplistic bright line test above, which justifies scaring drivers into obedience with the very image of a law enforcement officer, we apply the Oakes test.

The test in R. v. Oakes, [1986] 1 S.C.R. 103, [1986] S.C.J. No. 7, determined the validity of a reverse onus clause which would violate section 11(d) of the Charter (s.11(d) establishes the right to the presumption of innocence). Although Oakes does not formally legally apply here, of course, I suggest that there is a valid analogy:

Certain rights and ideals are upheld in Canada, such as the right to be presumed innocent (s. 11(d) of the Charter). Another is the notion that the power to govern flows from the people (s. 3 of the Charter) and thus the power to use force to uphold law also flows from the people; thus that power must be used for the protection of the people – it must never be a source of fear among non-criminals.

servamus.

When those rights or notions are violated, we say that the administration of justice is brought into disrepute (s.24(2) of the Charter). We notwithstand those right and notions, including s.24(2), when the benefit to the greater good of society is said to outweigh the violation (s.1 of the Charter).

Section 1 requires that the benefit to society that justifies a Charter violation, or in this analogy, a violation of the notion that we are not governed through fear (which could itself be said to flow from s.7 of the Charter), be demonstrated according to the civil standard: the preponderance of probability (Oakes @ 67). As well, preponderance is a sliding scale, and must be achieved in a proportion “commensurate with the occasion” (Lord Denning in Bater v Bater, [1950] 2 All E.R. 458 (C.A.) at p.459, quoted in Oakes @ 67).

We are looking at a shift from the image of the police officer as your neighbour and protector to one as your adversary whose very presence is to set one on edge. Would not such a shift require a very high preponderance? Perhaps in the context of airways terrorism, yes (assuming such measures are actually working). The targets are the immeasurably small fraction of the population who would consider such a sociopathic and heinous act, and the majority of us still feel protected (to some extent) by those officials.

In this case, the targets are the non-criminal populace who drive cars, many of whom violate the speed limit. Drivers – non-criminal citizens from whom the police derive their power – are having their fear of being ticketed isolated, transformed into a fear of the police, and capitalized upon to drive a policy goal that in and of itself should never pass Section 1 muster.

Here is the test for the application of s.1, also known as The Oakes Test:

Oakes @ 69: [T]wo central criteria must be satisfied. First, the objective … must be “of sufficient importance to warrant overriding a constitutionally protected right or freedom”: R. v. Big M Drug Mart, [[1985] 1 S.C.R. 295] at p.352.

[Oakes was about drug trafficking. Here we are talking about speeding - not yet deemed a national threat as far as I know.]

Oakes @ 70: Second, … the party invoking s.1 must show that the means chosen are reasonable and demonstrably justified. This involves “a form of proportionality test”: R. v. Big M Drug Mart, supra, at p.352.

…

There are … three important components of a proportionality test. First, the measures … must be rationally connected to the objective.

[Fear of enforcement likely reduces speeding. The question must be answered in a specific manner, however: Would the fear evoked by the very image of a police officer curb speeding? Probably.]

Oakes @ 70 (cont.): Second, the means … should impair “as little as possible” the right or freedom in question: R. v. Big M Drug Mart, supra, at p.352.

[Does the initial step onto the slippery slope toward a society governed by fear instead of judicious attention by law enforcement officials constitute the slightest possible impairment? I don't think so.]

Oakes @ 70 (cont.): Third, there must be a proportionality between the effects of the measures … and the objective.

Here we return to the beginning of this piece. I repeat: Could the momentum of enshrining the police vs. citizens paradigm lead to the political annihilation of servamus?

In other words, could the potential transformative effects on society of engendering a public fear of police be out of proportion with traffic safety objectives?