Earlier this week, the Supreme Court of Canada heard the appeal of Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital and Health Center. This case has widely been publicized as the judicial plagiarism case. In this case, the trial judge essentially copied large portions of the plaintiff's written argument. As many journalists have noted, this copying was done "without attribution."

With respect to the media, I'm not sure the term "plagiarism" adequately covers the issue before the Courts. In one case, an online news article about the case was accompanied with a poll asking whether the reader has ever plagiarized anything. This just confuses the issue!

The issue before the Supreme Court of Canada is not, at its core, an issue of wrongful appropriation of the plaintiff's argument. It's also not issue of properly attributing the source; nor is it a copyright issue.

It is relatively common for some parts of counsel's submission to end up in a judgment, credited or otherwise. It's not unheard of for a judge to request submissions in electronic format, to make this process easier for the judge. This practice is not usually problematic.

What sets this case apart is the magnitude of the copying - 321 out of 368 paragraphs of the judgment were lifted directly out of the plaintiff's submissions. This substantial copying raises the question of whether the judge did any independent analysis of the facts and the law, and whether the judge considered the defences raised by the defendant.  In other words, it raises the question of whether he in fact adjudicated the case!  For this reason, it would not have made a great difference had the judge attributed the source without doing something more. The problem isn't copying per se, it's the fact that without independent analysis of the issues before the Court, the reasons appeared inadequate and did not appear to meet the requirements of judicial integrity and impartiality. The judge may have (and probably did) weigh the evidence and reach his own conclusions, which happened to be in line with the plaintiff's submissions. However, by copying the submissions, it might not appear to the public that he did so. It is of utmost importance in our justice system that not only is justice done, it is seen to be done.

What plagiarism and the issue in this case have in common is the perception of lack of integrity - as the Court of Appeal stated:

...[T]he reasons [for judgment] do not meet the functional requirement of public accountability, and as such, are not amenable to meaningful appellate review of their correctness. The form of the reasons, substantially a recitation of the respondents’ submissions, is in itself “cogent evidence” displacing the presumption of judicial integrity, which encompasses impartiality. We have concluded that a reasonable and informed observer could not be persuaded that the trial judge independently and impartially examined all of the evidence and arrived at his own conclusions. ....[I]mpartiality is necessary to trial fairness. None of the parties to this litigation was fairly treated by the failure of the trial judge to properly grapple with this case. Neither they nor members of the public can be satisfied that justice has been done. The reasons are not transparent and persuasive, and their acceptance by this Court would risk undermining the confidence of the public in the administration of justice.

The British Columbia Court of Appeal sent the matter back to trial. This case involved a child born with brain damage and allegations of medical malpractice - it is particularly unfortunate that this case could not have been resolved at the first trial. It will be interesting to see how the Supreme Court of Canada rules both in terms of the so-called plagiarism issue given the widespread practice of judicial copying, and in terms of the more practical matter of whether the case should be sent back for another lengthy and expensive trial