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Should Courts Be Allowed to Cut-and-Paste Their Reasons?

cut and paste

Should Courts Be Allowed to Cut-and-Paste Their Reasons?

Just this past week, the Supreme Court of Canada considered an interesting question: In writing their judgments after a trial or hearing, are judges allowed to do large-scale cutting-and-pasting of other people’s written argument?
The answer is – apparently – “yes”.

The factual background of the case involved a negligence action in which a baby suffered brain damage during birth, and developed cerebral palsy subsequently. The mother had delivered a first child C-section; the second baby was delivered via an induced vaginal birth. This decision put her into a high-risk category, and the legal issue was whether she had given informed consent.

At trial, three doctors were found liable in negligence, and the mother was awarded $4 million in damages.

However in written award to that effect, the trial judge’s reasons consisted largely of reproduced portions of the submissions of the mother’s lawyer. Of the 368 paragraphs of the written decision, 321 were cut-and-pasted, and only 47 were in the judge’s own words, including the final conclusions.

On appeal, the Court set aside the trial judge’s reasons because of the extensive copying, and ordered a new trial.  A later appeal went all the way to the Supreme Court of Canada.

The Supreme Court of Canada pointed out that it is not prohibited for judges to include the work of others in their reasons. Indeed, it concluded that judicial copying was a “longstanding and accepted practice”, and was becoming easier to do with the introduction of the computer and the use of electronic submissions by lawyers.

The Court pointed out that it was not the copying per se that makes the process of judgment-writing unfair: it is the impression that the judge failed to independently and comprehensively assess the issues and arguments raised. The court wrote:

In summary, courts in Canada and elsewhere have held that copying in reasons for judgment is not, in itself, grounds for setting the judge’s decision aside. However, 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.

After looking at all the elements of the negligence case before it, the Supreme Court of Canada ultimately held that despite the trial judge’s very extensive copying, the decision should not be set aside. There was nothing to suggest that the judge was not impartial or that judicial integrity was not maintained. The award was overturned for other unrelated reasons, however).

How would you feel if the judge’s decision in your Family Law was mainly a cut-and-paste job?

Should judges be prevented from doing this?

For the full text of the decision, see:

Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 (CanLII)  http://canlii.ca/t/fxkwj

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