Two years ago the British Columbia Supreme Court heard a case about a young boy who had severe brain damage and cerebral palsy as a result of difficulties during his birth. His mother sought damages on his behalf and was awarded several million dollars. His doctors and the hospital, who were found to be at fault, appealed the decision.
As is usual, a three-member panel of British Columbia’s Court of Appeal listened to their arguments and handed down their Reasons. What turned this case from a tragedy for this family to a case worthy of the attention of the Supreme Court of Canada was that two of the appeal judges excoriated the trial judge, accusing him of plagiarism by including lengthy excerpts from one of the lawyers’ written closing arguments in his Reasons for Judgment.
As a result of their findings, they set aside the young boy’s damage award and ordered a new trial, a devastating result for a family who had already suffered so much.
Many in the legal profession were shocked that this usually scholarly, genteel group of jurists would publicly impugn a sitting judge, for indulging in a practice that was frankly, commonplace. In fact, as far back as British jurist Lord Blackstone, lawyers hoped their written closing submissions would find a place in the Court’s Reasons and ultimately, dictate the Court’s decision.
Last week the Supreme Court of Canada ruled that Mr. Justice Groves’ so-called plagiarism was nothing of the kind and his rebuke by the appeal judges was exposed for what it was: an inappropriate attack on an exemplary judge who did nothing wrong. (Cojocaru v. BC Women’s Hospital 2013 SCC 30)
Chief Justice McLachlin noted that “judicial copying” is a longstanding and accepted practice which should only be condemned if it so egregious that it displaces the presumption that judges fufill their duties with integrity and impartiality.
She gave short-shrift to the criticism that a judges’s Reasons must be an “original” product of the judge’s mind and mused that a lack of originality is “part and parcel” of the judicial process:
“Borrowed prose, attributed or not, does not establish that a judge has failed to come to grips with the issues to be decided.”
She also affirmed that to criticize a judge for utilizing excerpts from counsel’s written submissions is to fundamentally misunderstand the Court’s task and the time-honoured tradition of decision-writing.
She noted that unlike term papers, novels, essays and newspaper articles, a judge’s Reasons reflect a body of law and legal principles that have been arrived at based on precedents, which over the years when recited in successive decisions take on a “deja-vu” quality. The verbatim repetition of legal formulas is de rigueur, representing the “tried and true” rather than the novel.
For Mr. Justice Groves the exoneration must be bittersweet, as he spent two years under the shadow of plagiarism that never was.
Lawdiva aka Georgialee Lang