Cut-and-Paste Justice

I previously blogged about Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital and Health Center2011 BCCA 192,  where the British Columbia Court of Appeal ordered a new trial and overturned a five million dollar judgment awarded to an infant plaintiff who suffered brain damage during his birth at the BC Women’s Hospital and Health Care Center. The Supreme Court of Canada subsequently granted leave to appeal and the Court’s decision is under reserve following oral arguments on November 13, 2012.

The issues before the Court in Cojocaru are:

If a trial judge adopts the submissions of only one party into his or her reasons for judgment, is the presumption of judicial integrity and impartiality so fundamentally displaced so as to render the trial unfair (or a nullity) in the absence of cogent evidence of bias?

Whether the trial judge committed a palpable and overriding error by failing to conduct an independent assessment of the evidence and in failing to consider the respondents’ causation defence.

Is this an isolated incident or is there a judicial trend toward “cut-and-paste justice”?

It’s well-known that many judges, especially at the appellate level, outsource their opinions to ghostwriting law clerks.  The extent to which a law clerk’s reasoning and personal views influence a judge’s own decision-making and thought processes in the final judicial opinion makes for an interesting psychological study.

Meanwhile, the recent decision in University of Alberta v Chang, 2012 ABCA 324 (Alta. C.A.-per Watson, Slatter and Rowbotham JJ.A.) suggests that the problem of “cut-and-paste justice” may be growing:

[17] The chambers judge followed his practice of cutting and pasting paragraphs from the briefs filed by the parties, having those paragraphs retyped, and then signing them as “Reasons
for Judgment”. The decision at 2011 ABQB 595 is 67 paragraphs long, and the decision at 2011 ABQB 596 is 78 paragraphs long.

“It is clear that judges of first instance are not mere scribes, collators of evidence, collage artists, or way stations on the road to justice.” [emphasis added]

*It bears repeating:

The Rule of Law is based upon public accountability and transparency.  It is one thing for a judge to adopt only one party’s submissions with attribution (which is itself questionable); it is entirely another to plagiarize. The concepts of “reasonable apprehension of bias” “bringing the administration of justice into disrepute” quickly spring to mind.

* Yes, I admit I just cut-and-pasted my quote.

H/T Shaunna Mireau via slaw.ca.

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