Canada: SCC Greenlights Judicial Borrowing

Contrary to what we have all been told since grade school, in Cojocaru v British Columbia Women's Hospital and Health Centre the Supreme Court of Canada decided that copying might not necessarily always be wrong. This decision is notorious (among court watchers and, likely, trial judges) because of the fact that the trial judge copied and pasted the plaintiffs' arguments into his judgment. Although the underlying facts dealt with complications surrounding the birth of Ms. Cojocaru's son, the main question was whether the trial judge's copying was wrong.

In his judgment, the trial judge found the hospital, as well as the nurse and the three doctors that cared for Ms. Cojocaru liable for $4 million. The judgment consisted of 368 paragraphs, of which, only 47 were in the judge's own words. Although the trial judge copied large parts of the Cojocarus' arguments, he did not accept all of them and discussed a number of issues. Importantly, the trial judge stated his final opinion in his own words. The defendants appealed the trial judge's decision, arguing that the copying suggested that the judge did not put his mind to the issues and decide them "independently and impartially".

Ultimately, the Supreme Court decided that while it was "desirable" for judges to express their conclusions in their own words, copying the materials of a party will not necessarily lead to a decision being overturned. The focus is not on the copying, but whether the copying reflects that the judge did not independently and impartially decide the matter. Here, the Supreme Court found that the trial judge did put his mind to the issues and therefore did not overturn his decision because of the copying (however, the Supreme Court did overturn the decision because of legal errors within its reasons).

This decision is important for the following reasons:

1. Distinction between process and substance. An individual in a court case is entitled not only to a decision that correctly understands and applies the relevant law, but also a process that is fair. As the Supreme Court pointed out, judicial copying is a procedural issue. It suggests that a party did not have a fair process because it did not truly have the ability to convince the judge with its arguments.

The test for procedural fairness at trial is whether a reasonable person would conclude that the process was fundamentally unfair. There is a high threshold to pass in order to succeed on this test. Appellate courts will presume that judges act independently and impartially and in order to overcome this presumption the appealing party will have to present conclusive evidence.

2. Copying is not necessarily wrong. The Supreme Court stated that judicial copying is not per se wrong and is a "longstanding and accepted practice" (schoolchildren, take note). Different from other forms of writing, the concern about copying in judgments is not that the judge is taking credit for someone else's work. Problems will only occur when the copying suggests that the judge did not consider the issues at hand and that the judgment does not reflect the judge's thinking.

Therefore, there is no issue with a judge copying materials without citing sources (something that would seem blasphemous to the ears of a high school essayist). Also, (and likely to be a relief to trial judges everywhere) the Supreme Court stated that "lack of originality" will not lead to a judgment being overturned. Because of the demand that legal matters be resolved in a timely manner, originality in judicial writing cannot be a requirement.

3. What and how things are copied can matter. Whether copying will lead to a decision being overturned requires that an appellate court consider different factors. The extent of the copying can be important and wholesale copying will likely lead to increased scrutiny. In defending the judgment in Cojocaru, the Supreme Court noted that the trial judge wrote "some original paragraphs" and made findings contrary to the submissions of the Cojocarus. Also, the Supreme Court noted that the trial judge made some edits to the portions that he copied from the Cojocarus. These facts suggested that the judge independently considered the issues.

Substantive errors in the materials copied may also suggest that the judge did not put his or her mind to the issues at hand. The Supreme Court was not troubled by the fact that the trial judge copied a portion of the Cojocarus' submissions that contained an error relating to the date a letter was sent, calling this an error of a "technical nature".

The impact of this decision will remain to be seen. Although the Supreme Court upheld the trial judge's decision, it stated its preference for originality, where possible. Regardless, lawyers submitting written arguments to court should be aware of the fact that not only are they presenting their clients' position, but that they may ultimately be presenting the final decision. The enterprising advocate will likely want to submit an electronic copy of his or her brief in that circumstance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Ranjan K. Agarwal
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