Thursday, May 26, 2016

OK, So About That CBC Story....

Jacques Poitras of the CBC was rightly aggrieved that I had not read his full story before a critiqued his setup Tweets.  He was doing a story on the allegations that Ministers Horsman and Arsenault had made unsubstantiated allegations against members of the judiciary and, in so doing, breached judicial independence and abused their offices.  When he tweeted links to his research that day, he cited cases of ministers resigning over privacy breaches.  I noted, perhaps too sarcastically, that this would be like assessing the fairness of drunk driving by examining the fate of shoplifters.

Jacques felt that I should have waited to see the whole story before commenting.  And, it was premature.  I'm currently overseas, running a few hours ahead of New Brunswick time, and those dark skies blinded me to the possibility that there might be more to come. So I acknowledged that I hadn't thought of that, and should have, on Twitter as he cited his displeasure with my quick whistle. 

I did not delete my tweets because I still felt it was a worthy question –“why are you looking at those?—even if I shouldn't have offered it as a final critique. If my daughter came in the study and said, “I'm doing a report on mammals.  How much does an iguana weigh?”, I might well ask why she thinks that's relevant. If she tells me to settle down and wait for the report, well…fair enough. But I'm still allowed to wonder why, pending final review. 

Of course, the story came out today.  And I still think the research into privacy breaches was irrelevant. But now I know better where I disagree with the story. 

1. The question is over-broad. Asking “When do ministers resign?” is a bit like asking, “When do people go to jail?”, or “When are players suspended?”, or “When are there consequences?”.  It’s a quick way to allow a question to get muddied by distractions and non-sequiturs, which appears to be exactly the government’s strategy here. As I noted yesterday, if someone accuses you of stealing company money, it is not really relevant to yell “well, Tommy didn't get fired for talking back to the boss!”.  Maybe not, but at some point you need to address whether or not you stole the money. 

After all, if you really want to explore reasons why ministers have resigned, the report could have added extra-marital affairs, leaving briefing documents around, letting your department sign off on tainted tuna, expensing really pricey orange juice, treasonous behaviour, visiting a strip club, wrongly telling people eggs were tainted, and in a different era, being gay. If you wanted a list of things some opposition member, some time, demanded a resignation over, we could be here all day. None of those are things these two ministers are accused of doing, so the consequences for them seems of dubious relevance.

2. Because the question is over-broad, the reporter is led into an area of false relativism.  The CBC report leaves the reader with an unsettling conclusion –that really, the reasons ministers resign are hard to isolate and people can never agree on them.  “Who can say?”, we are invited to ask, as Homer Simpson might cite our crazy world with its new-fanged technologies.

Except…ministers resigning over judicial interference is not controversial at all.

There are genuinely grey areas in the area of ministerial conduct. This is true. But because some areas are grey doesn't mean they all are. It is a grey area when a baseball player should be suspended for a hard slide. But if I covered the Alex Rodriguez steroid trial and cited the debate over Jose Bautista’s hard slide, and concluded by saying “Well, when we suspend is a grey area!”, there is an obvious problem.

Looking at the list of reasons ministers have resigned, we can see lots of grey areas. But that doesn't mean they are all grey areas. When a minister should resign over expenses is a grey area. When the principle of ministerial accountability should kick in is a grey area when it comes to leaks of information, because departments have grown so big and complex. (It is not a grey area that a minister should resign when they personally release information. When a staffer does it, that is a grey area.)

But they aren't all grey areas.  It is quite clear that treasonous behaviour is grounds for resignation.  iT is just as clear, in 2016, that being gay certainly is NOT.  To know these areas are settled, you'd have to look specifically at those areas without importing less-settled questions to the study. 

The trouble with asking over-broad questions is we can start to engage in moral nihilism, deciding that nothing is settled so everything is permitted. But some things are known, even if not everything is known.  We can debate if it's bad etiquette to text during during a wedding reception, but I do know it's bad to text during your own wedding vows. We can debate if marijuana use should be a crime, but I do know that beating people up is. It is a very grey legal area as to how far the state can go in ensuring informed consent to end your life, but it is not unsettled that the right now exists at law.  You can always find disagreement if you draw the parameters of the debate broadly enough, but that can obscure important lines. 

It seems to be a better question to ask “Given that judicial interference consistently is grounds for resignation, is there agreement that Horsman and Arsenault’s actions amount to judicial interference?”. I would be very interested in hearing lawyers and former judges on that point. That would also lead to debate over some relevant questions the piece raises, such as the fact that the Justice Minister claims judges initiated the conversations in his case, and a few it misses, like the levelling of unsubstantiated accusations against the judiciary.

To sum up, I don't say any of this because I think a journalist has bad intentions or has anything less than a solid career. I follow this journalist on Twitter and have appreciated their work many times.  Just as Jacques can question the wisdom of politicians’ decisions on his podcast without ignoring their many good deeds and qualities, I do the same here. Journalists often help us know what questions we should think about, and so their choices in phrasing even implicit questions are worth public debate. I also note that I noted and corrected my error in calling his setup tweets a “story”.  Some acknowledgement from Don Arsenault that, yes, he shouldn't have suggested that there is an improper plan to move Madame Justice Blais to Moncton without proof was kind of a bad thing would likely give this story fewer legs than the petulance currently on display. 

In this case, I do think my scepticism was justified (if premature).  Reading the piece, I was reminded of George Carlin’s famous admonition, “I hate it when people say ‘ya never know’. Cause sometimes, ya know.”

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