Supreme Court of Canada Rules that Judges Who “Cut & Paste” Material Into Their Decisions Are Not Plagiarists


Supreme Court of Canada
Supreme Court of Canada in Ottawa, Ontario, Canada.  Here is an exerpt from the case known as Cojocaru v. British Columbia Women’s Hospital and Health Centre (SCC Case Information: 34304):                             “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.  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 concern about copying in the judicial context is not that the judge is taking credit for someone else’s prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge’s thinking.  Extensive copying and failure to attribute outside sources are in most situations practices to be discouraged.  But lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity.  This occurs only if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision”.

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Judges who cut and paste material they did not write into their judgments are not plagiarists, the Supreme Court of Canada has ruled.

Moving to resolve a tricky problem judges encounter regularly, the court said on Friday they may incorporate external material into decisions provided they have applied themselves diligently to the legal issues in the case.

“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 court said.

It upheld portions of a $4-million award in a medical malpractice lawsuit, concluding the trial judge had not tainted his reasoning by importing large portions of the plaintiff’s written arguments. However, the court found fault with some of the judge’s specific conclusions regarding the liability of various doctors and nurses at a birthing emergency that resulted in serious injuries to a newborn. It eliminated several of them as defendants based on the trial judge’s erroneous conclusions.

The May 24, 2013 decision provided an emphatic response to an increasingly contentious issue in the legal world – material from other sources that is pasted into decisions. Concern is rising at all levels of courts about passages copied from other documents and decisions, often without a trace of attribution.

The B.C. Court of Appeal had earlier reversed the finding in the malpractice lawsuit largely because the trial judge copied, and failed to attribute, significant portions from the plaintiff’s closing arguments.

But Chief Justice Beverley McLachlin said it would be wrong to place an unrealistic burden on judges that would prohibit them from re-printing material that can be integral to their rulings.

“Judicial copying is a long-standing and accepted practice, although, if carried to excess, may raise problems,” she said.

The child, Eric Victor Cojocaru, suffered brain damage during delivery at the British Columbia Women’s Hospital and Health Centre. His mother, who had previously had a child by cesarian section, had been considered a high-risk patient.

John Kleefeld, a University of Saskatchewan law professor, noted that in other forms of unattributed copying, the “victims” are usually seen as those whose words were copied.

“However, in this setting, the person from whom the words have been copied is usually delighted to have their submissions incorporated into the judge’s reasons,” Prof. Kleefeld said.

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