Near the beginning of every academic year, I ask students in my in Legal Research and Writing class (LRW) to complete a short in-class assignment. I provide them with news articles that cover legal issues and ask them to find the decision or legislation that is being discussed. At this point in the year, students have typically only recently been introduced to both open and proprietary legal research platforms. They are inclined to keyword search the same way that they might on Google. This is usually ineffective and gives them varying results across platforms. The point of the activity is to identify the relevant elements that assist in primary law research: jurisdiction, stage of a bill, court level, date, parties, judge, area of law, and to have them explore filters and sorting options. However, it also creates space for an interesting discussion on the accessibility of legal information.
The overarching question that students ask: “How is someone unfamiliar with the Canadian legal system supposed to find that!? Why doesn’t the article link to CanLII or LEGISinfo?”
Do you have a news app on your phone? I have three. As news publications have shifted to mobile platforms the way users consume news has changed. And this is not mere speculation. In 2010, the Pew Research Center completed a study that provided three significant findings relating to mobile news and user consumption as summarised by a recent article in New Media & Society: “(1) users are able to choose when and where to consume news, (2) news offers are increasingly personalised, and (3) consumption mode switches from a passive to an active one.”
As the world becomes increasingly digitized and politicized, it becomes increasingly important for readers to be well-informed, and documents produced by courts and legislatures are openly available reliable, authoritative primary sources. I concede that it is not necessary for all citizens to be able to retrieve and analyse legal documents and educating readers on primary law is outside the traditional boundaries of journalism. However, providing a link to the primary source in a news article seems like a simple action that might improve trust and help reduce scepticism of those who actively consume a personalised newsfeed on their own schedule. It also is an easy way to improve access to legal information.
To quell my own curiosities and round out my answers for students when they inquire about access to justice and legal information in the news, I reached out to Blair Rhodes. Blair Rhodes is a reporter with CBC focusing on crime and public safety. He is one of my go-to reporters for legal topics in Nova Scotia. He was kind enough to respond to my request with the following thoughtful answers.
How did you get involved in reporting on law and justice? What keeps you motivated to continue reporting on these often heavy topics?
I have been a journalist for 40 years. I started as a general-assignment reporter, which included covering the courts in Fredericton, N.B. I covered the case of Lana Louise Clarkson, a woman accused of murdering her husband. She was severely intoxicated, and even though she asked to speak to a lawyer, police continued to question her and she confessed. The trial judge refused to admit that evidence because of her intoxication, a decision that was ultimately upheld by the Supreme Court of Canada. That case began my fascination with the law; the anomaly that someone could be guilty of a crime but not held accountable because of errors by justice system participants.
I have done a lot of other things over the years, but when the opportunity came to resume covering the courts here in Nova Scotia, I jumped at the chance. I look at covering law and justice issues as an opportunity to help give a voice to those who might otherwise not be heard.
Can you describe your process (from start to finish) for research and writing articles focused on law and court decisions?
If I cover a trial in person (something that has been rare during the pandemic) I simply write stories chronologically, summarizing the evidence and arguments of that particular day. More commonly, I write stories based on published decisions. I am on an email list provided by the courts of Nova Scotia. Every weekday afternoon, the courts email the most recent decisions from all levels of court. I read all the decisions and then make editorial decisions on which of them might warrant a news story. There are a number of factors that come into play: the seriousness of the crime, whether the accused is a known figure, whether there is something anomalous in the decision (an acquittal where a conviction might be expected, for example), the quality of the writing (most decisions are very dry; occasionally a judge will rise above that and paint a word picture worth repeating) Once a decision is made to write up a court case, I look for context, things like Parole Board reports and previous criminal convictions to paint a fuller picture of the case.
Once an article has been drafted, what happens during the editing process for an article?
An article is edited for style and content by copy editors. Usually at least two people vet a story before it is published.
Can you describe the decision-making process in choosing when to refer to evidence or documents relevant to court proceedings? Is there a reason that primary sources, such as court decisions and legislative documents, are often not included in an article?
Many organizations, including CBC are reluctant to reference sources outside of our control. That would include court decisions. As we are a general interest news publication and not a legal brief, we do not typically link to court decisions or other external sources. We frequently link to previous CBC stories on the same subject.
Beyond court-ordered mandates like publication bans, or similar restrictions, are there any professional/ethical reasons for not including references to certain primary sources or court documents in articles?
We try not to revictimize people, so if there is no compelling reason for naming a complainant or victim or witness, we will frequently exclude that information. Our purpose is not to cause harm or trauma.
As the world becomes increasingly digitized and politicized, it becomes increasingly important for readers to be well-informed with reliable, authoritative information. How do you think providing direct access to primary sources might impact your readers? Do you feel that as a journalist, you have a professional or ethical obligation to include or not include primary sources?
Those who trust our journalism will trust it without links to external sources like court decisions. Those who do not trust mainstream media will dismiss our work no matter how carefully it is sourced or vetted.
I’m not a journalist! Do you have any other thoughts you’d like to share that were not addressed within my questions?
Journalism is as imperfect as any other human endeavor. People will always question and dispute the choices we make. That is their right. There is nothing to say our choices of what stories to tell and how to tell them are correct, but they are based on careful consideration of the facts and the ethical parameters under which we are all supposed to operate. I see my job as trying to illuminate the process and the people involved. One of the biggest challenges I face is that people think they know the Canadian justice system, but their “knowledge” is informed by their watching of American media and their failure to differentiate between the two systems. An example of that is the belief that Canadian sentences are too soft, because they do not guarantee a person will be locked up until they die. Especially in the context of the recent controversy surrounding the U.S. Supreme Court, I am much more comfortable with the Canadian system.
These answers highlight the nuanced issues journalists face while reporting on topics of law and justice. Avoiding revictimization, harm, and trauma are certainly reasons worthy of omitting links to primary law sources. I also empathize with and support those reporters who face challenges from unreasonable naysayers and those who cannot delineate the Canadian and American justice systems. However, it is these naysayers and confused citizens that make me believe there is value in providing links to primary law sources when circumstances allow. I agree that a news article is not a legal brief nor a scholarly publication, however, journalism has a wider audience than the aforementioned. The Canadian Association of Journalists (CAJ) defines the purpose of journalism as,
“An act of journalism sets out to combine evidence-based research and verification with the creative act of storytelling. Its central purpose is to inform and empower people to make sense of events and issues, and to serve in their interest.” [emphasis added]
While not all sources can or should be referenced, I surmise that linking to openly available primary law is supported by this definition and might improve trust across sceptical readers.
Further, though these are not examples authored by Mr. Rhodes, there are recent news articles that link to such specific documents as handwritten notes and RCMP twitter feeds as well as the occasional article that does link to a court document. CAJ has a section within their Ethics Guidelines specific to Digital Media that includes a guideline for publishing external links, “When we publish outside links, we make an effort to ensure the sites are credible; in other words, we think before we link.” Perhaps this is a crossroads for digital news platforms and linking to available primary sources will become a more consistent practice that improves access to legal information in the future.
As Mr. Rhodes mentioned above, “People will always question and dispute the choices we make.” This applies to my own ideas – anyone who has done legal research certainly knows that it is an imperfect human endeavor. I’m also the first to admit that, as a law librarian, I spend way too much time thinking about supporting authorities, citations, and access to legal information. Thank you, Mr. Rhodes, for your decades of excellent reporting and for taking the time to answer my questions.