The Judges and the Media

Most reporters would undoubtedly have ignored a 1999 Supreme Court of Canada case involving the right to fish for eels had Donald Marshall not been the defendant. Marshall—Canada’s first celebrated victim of a wrongful murder conviction—was appealing his conviction for catching a doryload of eels out of season using a 250-year-old treaty between the Mi’kmaq band and the British.

Intrigued by the Marshall name, a number of reporters hiked over to the Supreme Court building in Ottawa for a copy of the ruling. Too bad, as it turned out. The news stories they filed that day and in the weeks that followed ranged from being mildly off-base to blatantly inaccurate, conveying a message that the Supreme Court was declaring open season for First Nations on natural resources. Not surprisingly, a furor erupted in the New Brunswick fishery between white and Native fishers.

What many reporters failed to point out—or, perhaps more charitably, did not understand—was that the ruling was rooted in a particular treaty and applied only to the band that had signed it. What’s more, the decision authorized the Mi’kmaq to sell only enough eel to provide them with a subsistence living. Finally, most stories did not mention that federal authorities could continue regulating eel catches for conservation purposes. In other words—and to be fair, overheated rhetoric from all parties to the case was part of the mix—the decision fell well short of the cataclysmic result that had been sprung on the public.

After weeks of sporadic violence among warring fishers, a beleaguered Supreme Court bench did the unprecedented. It issued a set of follow-up reasons that bristled with indignation at the way its original words had been interpreted and conveyed.

All of this was manna from heaven for a group of researchers, Florian Sauvageau, David Schneiderman and David Taras, immersed in the first extensive study of how the Canadian media report on the Supreme Court, an ambitious undertaking that has yielded a first-rate book, The Last Word: Media Coverage of the Supreme Court of Canada. As part of their exhaustive examination of the Court’s soaring press profile and the often prickly treatment it has gotten from academic critics and editorialists, Sauvageau, Schneiderman and Taras—a well-regarded group of legal academics drawn from several top law schools—highlighted four major cases. Regina v. Marshall was one of those put under a microscope. (The others were Regina v. Robin Sharpe, a notorious child pornography prosecution, the Quebec Secession Reference and a landmark gay rights case out of Alberta known as Vriend.)

The authors found reporting on three of the four cases seriously wanting in many respects, but none more dramatically than the press reports that followed the Marshall decision. “Although the court was roundly criticized for being out of touch with the reality of life in the Maritimes, the same could be said for sources and some journalists about constitutional law and Supreme Court jurisprudence,” they concluded.

Their overall goal was to plot the extent to which the court of last resort does, or does not, actually get the last word. In the end, does it really make much difference exactly what a legal judgement says, if the press creates a different perception of its meaning? Does the Court try to influence reporting in order to preserve its true intentions and retain its public credibility? How does each side of the divide regard the other?

At first blush, the topic might seem a bit obscure to justify a major study, but consider the context. With the importance and image of the Supreme Court having grown exponentially since the Charter of Rights was enacted in 1982, judges are routinely accused of usurping the role of the legislatures, of reducing the democratic process to a mere afterthought. Yet for all its power, the Supreme Court remains almost powerless to influence the way its work is transmitted to the public.

Where legislators employ tried and true tactics for massaging the message—strategically leaking papers, projects and plans to reporters who gratefully offer them a soft ride—judges have no such opportunity. Nor do judges grant interviews or give press conferences after a ruling to provide their personal perspective. In fact, with the exception of a couple of Supreme Court liaison officers who strive to maintain a neutral stance, the Supreme Court lacks any public relations presence to cajole and spin the media.

This leaves the Court “trapped in the cement of its own customs and traditions,” the book says. Inexperienced reporters, finding the Court confusing and unapproachable, retreat to other stories or seek out obvious antagonists in order to fill out their stories. The credibility of the Court thus comes to rest largely on whether a small band of press intermediaries deem a decision worthy of exposure, on the angles they use in framing their stories and on the identities of those they call for reaction.

In consequence, judges complain that the whole point of their existence—the rulings they craft—end up being little more than reference points for news reports dominated by pressure groups and opposing counsel. “Simply put,” write Sauvageau, Schneiderman and Taras, “once judges hand down rulings, they lose control of the message. They are dependent on and at the mercy of the journalists who report on, interpret, and place their own meanings on judicial rulings. Thus, journalists, it can be argued, have the last word.”

Nor are the authors happy about the fact that most Court coverage is provided by parliamentary reporters who walk over from Parliament Hill on judgement days to wallow about in the highly technical and nuanced world of Supreme Court jurisprudence. Several Supreme Court judges disclosed to the authors their sense of frustration or resignation, complaining that they spend months writing a ruling that strikes an excruciatingly delicate balance—guiding the legal profession, while still being accessible to the public—only to see it immediately reduced to a few pat phrases in the press. As one who has covered the Court for many years (and whose work is critiqued in The Last Word), I am very familiar both with the judges’ perspective as well as with some extenuating circumstances. Faced with the sheer intellectual bulk and legal shading of most rulings in addition to the interplay between majority and minority reasons, even experienced reporters can struggle to tailor a story to fit a small space or time allotment. Add to that the demands from editors for reaction quotes and elements of human interest, and the final package is almost inevitably a pale reflection of the actual judgement. Moreover, a judgement released in the morning is likely to be seen as stale by evening unless it can be given a fresh angle. And a fresh angle frequently boils down to trolling for angry rhetoric from a legal opponent, a politician in search of a sound bite or a dial-a-bash Court critic.

To their credit, Sauvageau, Schneiderman and Taras are savvy to press reality. Their research included first-hand observations of the hasty compromise that lies at the heart of the news business, observations that make their conclusions that much more credible. Many of these conclusions are fascinating, even startling. Consider the case of Robert Latimer, who murdered his daughter to end her constant state of pain. The Supreme Court refused to uphold a special one-year prison sentence, saying that Latimer had to serve ten years. The authors’ research shows that the slant of the English media was noticeably sympathetic to Latimer. In contrast, the French media consistently employed a story “frame” emphasizing a slippery slope argument—that is, that by showing mercy toward Latimer, the justice system might encourage others to kill people with severe disabilities.

Sauvageau, Schneiderman and Taras account for this conceptual difference with a perfectly plausible theory that, since the French-language reporters who covered Latimer did not travel to Saskatchewan at any point during the case, they did not develop the same personal connection and appreciation of the Latimer family’s position that most English-language reporters covering the story had long since adopted.

Nor was this the only instance where coverage differed sharply in the French- and English-language press. The authors were plainly astonished at the coverage of a landmark constitutional case involving the extradition of Canadian citizens to face the death penalty abroad—a case known as Burns and Rafay. The English media gave extensive coverage to the decision throughout. The French Canadian media virtually ignored it. The Last Word offers several possible reasons, including the incontrovertible fact of Quebec’s psychological remoteness from the rest of Canada. Still, they are clearly disturbed that a landmark ruling on a vital issue could pass unnoticed in a major portion of the country.

In the Delwin Vriend case, where a gay man sought to bring homosexuals within the protection of Alberta’s human rights scheme, regional reporting distinctions turned out to be of a different nature. Inside Alberta, the press covered the case largely as a story involving provincial autonomy. The story frame was based on the ability of a province to determine its own human rights scheme based on regional values. Outside Alberta, however, the media frame quickly became a moral one in which Alberta was cast as “a deviant province.” (The Quebec press again ignored the case—a remarkable event given the existence of a compelling angle involving provincial autonomy.)

The Secession Reference stood out from the other cases studied by Sauvageau, Schneiderman and Taras in that coverage of it was widely praised. In its ruling, the Court relied on “unwritten constitutional principles” to conclude that the federal government would be obliged to negotiate sovereignty with Quebec if a clear majority of the province voted for independence in answer to a clear and unambiguous referendum question. Pretty much every player in the case—federalists, the provinces, sovereignists and aboriginals—swiftly spun the Court’s decision into a victory for them. Meanwhile, French- and English-language editorialists pronounced the decision a pragmatic one that had defused an explosive situation, bolstering the Court’s status as a wise arbiter of national fortunes. The admiration fl owed both ways, too. Several judges expressed their hearty approval to the authors about how the Secession Reference case had been covered in the press.

If nothing else, two conclusions can be drawn from all of this. First, the Court is apparently fond of articles that praise its rulings. Imagine that! Second, the judges evidently pay a lot more attention to press coverage of their decisions than they like to admit. (Indeed, their assertions to the contrary invariably draw knowing laughs from lawyers and academics, who view the Court as being highly attuned to its press portrayals.)

The Last Word may be earnest, but it is far from dry. The writing is careful and elegant, yet pointed and piercing. It takes into account the pressures of the news business, but refuses to let them become a convenient excuse for complacent or facile journalism. (Example: Noting that the Toronto Sun carried all of 15 articles on the Quebec Secession Reference, the authors observed dryly that this was an unusual finding, given the tabloid’s propensity for the trivial and sensational.)

Sauvageau, Schneiderman and Taras augmented their extensive interviews with judges and reporters by analyzing thousands of articles and reams of television news footage in search of statistical patterns. They also observed the rituals of the Supreme Court process, watching from the sidelines of the Court’s press room during off-the-record briefings, listening in on whispered conferences as reporters passed half-truths to one another and observing lobbyists jostling in the Supreme Court lobby on judgement days, endeavouring to spin story angles. They have nicely captured the sometimes incongruous process whereby reporters collectively decide the angle of a story, as well as that most blunt of human interactions—negotiation time between reporter and editor with deadline looming. On one memorable day in 2001, the authors and their research staff even fanned out across the country to follow a number of reporters and editors through the day, as we frantically cobbled and recobbled our coverage of the Sharpe child pornography ruling.

In the end, The Last Word conveys a clear sense of disappointment that such a small number of Supreme Court cases are covered each year. It finds that a very small proportion of the Supreme Court’s annual output of judgements accounts for the vast bulk of media coverage—particularly when it comes to television. Cases that sport dramatic fact situations tend to get the most extensive coverage, regardless of whether their legal ramifications are modest and isolated. Those with a clear good-versus-evil story frame also prosper, even as cases with more serious legal import disappear from public view without a trace. With one exception, that is: if a story has a clear political frame, it will pique the interest of the political reporters seconded to cover it.

“Cases that involve political controversy receive by far the most coverage,” the authors note. “The court is covered overwhelmingly by parliamentary reporters, and differences between English and French language reporting reflect the political values that predominate in Quebec and in English Canada.” Inevitably, The Last Word does not get everything right. To take one small example, it takes a shot at reporters for not covering a symposium held on the Supreme Court’s 125th anniversary. In truth, several of us were on hand to suffer through a succession of interminable, technical papers no editor was interested in. To cap off the unfortunate affair, Pierre Trudeau died during the conference, utterly hijacking the news agenda.

More substantially, however, some will argue that the expectations of the authors for Supreme Court coverage are too lofty to be realized in the mainstream media. We are, after all, living in an age of celebrity journalism, self-obsessed commentary and furious media competition for a dwindling readership. How many newsroom managers will risk devoting more space to lengthy, nuanced stories about jurisprudence?

I would hazard a guess that coverage will indeed improve, but only by increments. Canada is not the United States, where Supreme Court jurisprudence has occupied a position of unparalleled importance for several generations. The Canadian media and public—and legal academe, for that matter—are still getting used to the new post-Charter reality. Serious legal coverage is going to become increasingly focused and sophisticated, but it will not be happening overnight. However, that reality should not stop academics like the authors of The Last Word from keeping the heat on. For the first word on a complex subject, they have produced a book that is thought-provoking, authoritative, impeccably researched and grounded in reality.