"Expert" reporting there, CBC.

I had to force myself to stay away from the blog over the last few days. It was so hard, especially with all the news, political speeches and punditry. But, after the poetic procrastination you see from the post below, I decided it was time to be a law student again.

But, the first exam is now out of the way. So what’s been building up over the last few days?

I’ve noted there have been quite a few news articles that consult “experts” to give some background information and opinions. But, rather than just providing useful context, these opinions become the focus of many articles. Articles that overuse these opinions or fail to provide a more complete picture are just sloppy.

One CBC article focused on two expert opinions who commented after Harper’s prorogation announcement. The first was a constitutional expert. I didn’t recognize the name, but I’m sure this is my failing. I have no doubt CBC found someone who at least authored an academic piece or who teaches a class somewhere.

This expert said the GG had set a “dangerous precedent” that would require all future GG’s to grant prorogation to any Prime Minister facing a confidence motion. With respect, I think this opinion overlooks the relationship between "precedent" and "perogative powers."

Although the GG might be bound, by constitutional convention, to grant some requests (like granting Royal Assent to Parliament Bills), they are not bound to follow precedent on discretionary matters. The next GG might be Joe I-Hate-Prime-Ministers and refuse to grant any request. A GG that fails to follow clear precedent might face criticism on that point, but why would they care? Historical trends just factor into the decision making process.

Even if GG’s were bound to follow precedent, this case is so uncertain and extraordinary that it doesn’t really provide much in how it should be followed in the future. GG’s do not provide reasons for their decisions. So we have no idea what factors the GG used to make her decision. Maybe she heavily weighed the fact that Harper had considerable support from the Canadian people. Perhaps it was the fact that Harper was willing to put it all on the line in a budget update very soon. We’ll never know. The point is, this doesn’t set any kind of precedent for the next time because there are no reasons.

Judges are bound by precedent. However, binding precedent (the common law) is carefully set out in clear, guiding reasons. Without reasons, future judges have nothing to go off of and have to start from scratch. In other words, no reasons means no precedent.

Even if there is a precedent, and there isn’t, I’m not sure I understand why it’s particularly dangerous. For starters, the word “dangerous” lacks precision and is loaded with prejudicial assumptions. Second, if future GG’s feel bound to grant a Prime Minister a prorogation for the month ½ it will take her/him to table a Budget; and to avoid a confidence vote in the mean-time; and if the prorogation will run over the Christmas break anyway; and when s/he has considerable support from Canadians; and when that Prime Minister can produce some extra pressing background issues (unity issues); and when that Prime minister will face a confidence issue the minute Parliament resumes, etc. then I don’t see the “danger.”

The same CBC article quoted a political science “expert” who said he had grave concerns Harper was pushing the country towards “violence.” The idea wasn’t really developed further than that. That’s a pretty bold opinion to offer without anything to really back it up. How do we get from a legal, albeit contentious, debate to armed violence? Just because something is monumental, contentious and unprecedented doesn’t mean we’re heading for the next FLQ crisis.

Expert opinions have severe limitations and, unchecked, can cause confusion and damage. It’s not surprising that since the “constitutional expert’s” opinion I’ve seen poster after poster use the term “dangerous precedent” to describe the recent GG’s decision.

In trials, courts have very specific rules about how experts can share their opinions because of the vast potential for prejudice, confusion and over-reliance. For starters, experts have to be properly qualified. Second, their opinions can only be used for very specific purposes. Last, expert opinion has to fit within a very restrictive legal framework aimed to counter-balance any prejudicial effect expert opinions might have.

I’m not saying news articles should be as strict in how they utilize expert opinions. However, the article’s failure to tightly and precisely employ “expert” opinion, the poor balance and the under-developed extreme opinion, are all factors that indicate incredibly bad reporting.

In an earlier blog post I mentioned how annoying it was to read the average forum user’s post. But, this is much more annoying. If reading the forums make me grit my teeth, reading those same forum posts in articles that call the author of those posts “experts” sends me to the dentist.