In a decision that preserves the status quo, the Supreme Court of Canada upheld (in part) the trial judge's decision in Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital and Health Center. This decision essentially affirms a long tradition of judicial cutting and pasting (as distinct from plagiarism, as I have discussed previously).
The Court of Appeal's Decision - Too Much Copying
Previously, the British Columbia Court of Appeal had overturned the trial decision and sent the matter back to trial. The trial judge's decision copied 321 out of 368 paragraphs in his judgment from the plaintiff's submissions. This substantial copying raised 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 the Court of Appeal's concern can be summarized as follows:
...[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.
The tragic facts of the case involved a vaginal birth after Caesarian section gone wrong, ultimately leading to the infant suffering from Cerebral Palsy. The British Columbian Court of Appeal's decision to send the matter back to trial was particularly unfortunate to the plaintiffs given these circumstances.
A more overarching concern, however, is the impact the decision (and similar decisions at the Alberta Court of Appeal, including University of Alberta v Chang and Briggs Bros. Student Transportation Ltd. v. Alberta (Attorney General)) have on the judicial process. While each of these decisions involve substantial copying, the practice is nothing new amongst the judiciary or indeed the legal profession. The issue then becomesdefining how much copying is too much copying. Given that judicial resources are stretched thinly as it is, requiring judges (or tribunals) to reinvent the wheel or else raise the spectre of appeal is problematic. Equally problematic is revisiting the cost and consequence on the parties to the litigation.
The Supreme Court of Canada's Decision - A Return to the Status Quo
The decision, written by Chief Justice McLachlin, was unanimous. While allowing the Defendants' appeals on unrelated issues, the Court disagreed with the British Columbia Court of Appeal's determination of the issue of judicial copying.
The Court accepted that copying could raise the issue of a procedural defect to rebut the presumption of judicial impartiality, and then went on to consider the circumstances in the case.
Firstly, and correctly in my view, the Court found that the trial judge's failure to attribute the source material was not a defect, nor was the lack of originality:
The fact that a judge attributes copied material to the author tells us nothing about whether she put her mind to the issues addressed in that copying. Nor is lack of originality alone a flaw in judgment-writing; on the contrary, it is part and parcel of the judicial process.
A judgement is not, after all, a high school essay, as the Court pointed out. The Court went on to acknowledge the status quo of copying and pasting within the judiciary:
Judgments routinely incorporate phrases and paragraphs from a variety of sources, such as decided cases, legal treatises, pleadings, and arguments of the parties... Often the sources are acknowledged, but often they are not. Whether acknowledged or not, they are an accepted part of the judgment-writing process and do not, without more, render the proceeding unfair.
The Court did, however, affirm what might be common sense - that it is "good judicial practice" for a judge to explain in his or her own words her conclusions on the facts and the law. Bad writing does not mean, however, that a judge failed to put his mind to the issues in the case. What becomes clear in the judgment is that the bar for a procedural defect by reason of copied reasons is set quite high.
On the facts of this case, the Court could not conclude that the trial judge failed to consider the issues and make an independent decision on them - he rejected some of the plaintiffs’ key submissions, which demonstrated that he considered the issues independently.
However, the Court went on to consider whether the absence in the reasons of an analysis of causation were in fact errors in law or palpable and overriding errors of fact. In other words, the issue with the reasons was not one of procedural defect, but a defect in law or fact.
In the end result, the Court actually dismissed the action as against four out of five of the defendants based on such errors by the trial judge, with costs payable to two of those defendants (the remaining two defendants did not cross-appeal).