Does the Writing in Reasons for Judgment Have to be Original?

In a complex medical negligence case, Cojocaru v. BritishColumbia Women’s Hospital and Health Center, 2011 BCCA 192, the majority of the British Columbia Court of Appeal ordered a new trial on the basis that the trial judge copied large portions of the plaintiff’s lawyer’s submissions in his reasons for judgment. Most of the reasons were copied from the submissions, with 47 of the 368 paragraphs of the reasons for judgment in the judge’s own words. Two of the three judges in the Court of Appeal hearing the appeal held

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.

The Plaintiff, who had been successful at trial, appealed to the Supreme Court of Canada.

In Cojocaru v. British Columbia Women’s Hospital andHealth Centre, 2013 SCC 30, the Supreme Court of Canada overturned the majority Court of Appeal decision.

Chief Justice McLachlin, writing for a unanimous Court, wrote that there is a presumption of judicial integrity and impartiality. The presumption that a judge is impartial may be rebutted, but the threshold is high. Copying, even without attribution, does not in itself rebut the presumption.

The Chief Justice noted that judgment-writing is different from other types of writing:

[32]                          To set aside a judgment for failure to attribute sources or for lack of originality alone would be to misunderstand the nature of the judge’s task and the time-honoured traditions of judgment-writing.  The conventions surrounding many kinds of writing forbid plagiarism and copying without acknowledgement.  Term papers, novels, essays, newspaper articles, biographical and historical tomes provide ready examples.  In academic and journalistic writing, the writer is faced with the task of presenting original ideas for evaluation by an instructor or by peers, or of engaging in principled debate in the press.  The task of judgment-writing is much different.  As Simon Stern puts it: 

Judges are not selected, and are only rarely valued, because of their gift for original expression. Just as most lawyers would rather present their arguments as merely routine applications of settled doctrine, yielding the same legal results that other courts have delivered repeatedly, judges usually prefer to couch their innovations in familiar forms, borrowing well-worn phrases to help the new modifications go down smoothly.  The bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law….  [T]he effort to demonstrate that similar cases are being treated alike often finds its rhetorical manifestation in a penchant for analyses that have a déja lu quality — usually because the words have been read before.  This tendency, though visible throughout the legal system, is most pronounced at the trial level.  [Emphasis in original; p.1.]

(“Copyright Originality and Judicial Originality” (2013), 63 U.T.L.J. 1)

And again: 

It is hardly news that legal writing is embedded in a network of precedent, formulas, and boilerplate, that it reflects a general preference for the tried and true over the novel, and that it routinely depends on practices — verbatim repetition of others’ words, adoption of others’ prose and arguments — that might trigger infringement claims in an intellectual property dispute. [p. 6]

In practice copying helps judges give their reasons in a timely way. The Chief Justice wrote:

[37]                          Judges are busy.  A heavy flow of work passes through the courts.  The public interest demands that the disputes and legal issues brought before the courts be resolved in a timely and effective manner, all the while maintaining the integrity of the judicial process.  In an ideal world, one might dream of judges recasting each proposition, principle and fact scenario before them in their own finely crafted prose.  In reality, courts have recognized that copying is acceptable, and does not, without more, require the judge’s decision to be set aside.  While the theoretical basis on which the result is explained varies, this is the position in England, various commonwealth countries, the U.S. and in Canada.

Although copying does not by itself rebut the presumption of integrity and impartiality, Chief Justice McLachlin wrote at paragraph 49,

if the incorporation of the material of others would lead a reasonable person apprised of all the relevant facts to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law, the presumption of judicial integrity is rebutted and the decision may be set aside.

She continued at paragraph 50,

[50]                          This does not negate the fact 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 her conclusions on the facts and the law.  The process of casting reasons for judgment in the judge’s own words helps to ensure that the judge has independently considered the issues and come to grips with them.  As the cases illustrate, the importance of this may vary with the nature of the case.  In some cases, the issues are so clear that adoption of one party’s submissions or draft order may be uncontroversial.  By contrast, in complex cases involving disputed facts and legal principles, the best practice is to discuss the issues, the evidence and the judge’s conclusions in the judge’s own words.  The point remains, however, that a judge’s failure to adhere to best practices does not, without more, permit the judge’s decision to be overturned on appeal.   

The Supreme Court of Canada found that the copying in this case did not rebut the presumption of judicial impartiality. Significantly the trial judge rejected some of the Plaintiff’s key submissions and made findings of fact against the Plaintiff, indicating that he had considered the submissions of the other parties.

The Supreme Court of Canada restored the trial judge’s decision in favour of the Plaintiff against one of the Defendant doctors, but for other reasons allowed the appeal from the trial judge’s finding that several other Defendants were negligent.