Judicial Plagiarism or Simply Lack of Originality?

Is it acceptable for a judge to copy large sections of his or her reasons for judgment from the written submissions of one of the parties?  The Supreme Court of Canada has said that it is. 

In the case of Cojocaru v. British Columbia Women's Hospital and Health Center, a child who suffered brain damage during his birth at the hospital and his mother brought an action in negligence against the hospital, the attending nurses and doctors. At trial, the defendants were found liable in negligence and damages were awarded to the plaintiffs in the amount of $4 million.

The defendants appealed, in part because the trial judge's reasons reproduced large portions of the plaintiffs' submissions. However, the trial judge did not accept all of the plaintiffs' submissions. He discussed a number of issues and stated his final conclusions in his own words.

The British Columbia Court of Appeal held that the trial judge's decision should be set aside because of the extensive copying from the plaintiffs' submissions and ordered a new trial. This case was further appealed to the Supreme Court of Canada.

The Supreme Court held that as a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law and explain in his or her own words, his conclusions on the facts and the law. However, the court conceded that judicial copying is a long-standing and accepted practice although if carried to excess, may raise problems.

A complaint that a judge's decision should be set aside because the reasons for judgment incorporate materials from other sources is essentially a procedural complaint. Judicial decisions benefit from a presumption of integrity and impartiality - a presumption that the judge has done the job that he is sworn to do. The party seeking to set aside a judicial decision because the judge's reasons incorporated the material of others, bears the burden of showing that the presumption (of integrity and impartiality) is rebutted. The threshold for rebutting that presumption is high and requires "cogent" evidence. The question is whether the evidence presented by the party challenging the judgment convinces the reviewing court that a reasonable person would conclude that the judge did not perform his sworn duty to review and consider the evidence with an open mind.

The fact that a judge attributes copied material to the author tells us nothing about whether he put his mind to the issues addressed in the copying. Lack of originality is not a flaw in judgment writing. On the contrary, it is part and parcel of the judicial process. Lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity. This only occurs if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put his mind to the evidence and the issues and did not render an impartial and independent decision.

In this case, taking into account the complexity of the facts and accepting that it would have been preferable for the trial judge to discuss the facts and issues in his own words, the court could not conclude that the judge failed to consider the issues and make an independent decision on them. On the contrary, the reasons demonstrated that the judge addressed his mind to the issues that he had to decide. He rejected some of the plaintiffs' key submissions, demonstrated that he considered the issues independently and impartially.

However, the court found that other aspects of the reasons disclosed palpable and over-riding errors and should be set aside. For example, the court found that there was no evidence to support the trial judge's findings of liability against one of the nurses, the hospital and two doctors and set aside those findings.

Regards,

Blair