Supreme Court of Canada condones copying in Cojocaru
In an era where the bench and society recognize that judges are hard-pressed for time and resources, and given Chief Justice McLachlin’s repeated calls for increased access to justice, the Supreme Court of Canada’s unanimous decision in Cojocaru (Guardian ad litem of) v. British Columbia Women’s Hospital & Health Center, 2013 SCC 30, is hardly surprising.
Cojocaru reaffirms the status quo reality that trial judges often adopt the submissions made by counsel into their written reasons for judgement. According to the Supreme Court, if a reasonable person would conclude from the judgement that the trier of fact did not put her mind to the issues and decide them independently and impartially, then the judgement may be set aside, though not simply on the basis that the judge’s reasons incorporated counsel submissions.
Eric Victor Cojocaru suffered brain damage during his birth at the British Columbia Women’s Hospital and Health Care Centre on May 21, 2001 [2009 BCSC 494 at para 5]. During labour, his mother’s uterus ruptured and the fetus extruded into Ms. Monica Cojocaru’s abdominal cavity, detaching Eric from the placenta of the uterine wall and depriving him of blood and oxygen. Under such dire circumstances, Eric must have been delivered within 10 to 15 minutes to avoid brain damage. Unfortunately, he was not delivered until 23 minutes after the rupture, and Eric’s brain damage consequently gave rise to cerebral palsy [2011 BCCA 192 at para 46; 2013 SCC 30 at para 4].
Monica Cojocaru and Eric Cojocaru brought an action for damages in negligence against the hospital and its medical staff.
Following a 30-day trial, Justice Groves of the British Columbia Supreme Court [2009 BCSC 494] found the BC Women’s Hospital, the obstetrical nurse charged with caring for Ms. Cojocaru during the time shortly before the birth, and three of the hospital’s doctors liable in negligence and awarded $4 million in damages to the plaintiffs [2013 SCC 30 at para 6; 2011 BCCA 192 at para 2].
Justice Groves’ reasons for judgement was 368 paragraphs long, but 321 paragraphs were copied nearly verbatim, without attribution, from the plaintiffs’ written closing submissions. Forty paragraphs of the balance were written in Justice Groves’ own words, and the remaining seven paragraphs contained a mixture of passages copied from the plaintiffs’ submissions and the trial judge’s original writing [2011 BCCA 192 at para 20].
The Hospital, the obstetrical nurse, and the three doctors appealed on the grounds that Justice Groves’ unattributed adoption of the plaintiffs’ written argument as reasons for judgement amounted to an error of law necessitating a new trial. Alternatively, the defendants contended that if the reasons could properly be considered as the reasons of the court, then the trial judge made palpable and overriding errors subject to appellate review [2011 BCCA 192 at para 4].
The majority of the British Columbia Court of Appeal agreed with the appellants. Justices Levine and Kirkpatrick ordered a new trial, holding that Justice Groves’ adoption en masse of the plaintiffs’ submissions constituted cogent evidence, displacing the presumption of judicial integrity and impartiality [2013 SCC 30 at para 7].
Justice Smith dissented, holding that the presumption of judicial integrity and impartiality had not been rebutted given the evidence. Smith J.A. conceded that while the extensive copying was troubling, Justice Groves’ reasons also showed that the trial judge had applied his mind to the issues, conducted his own analysis, and reached his own conclusions. Despite the foregoing, Justice Smith found palpable and overriding errors in Justice Groves’ decision and would have varied the trial judgement [2013 SCC 30 at para 8].
The Supreme Court of Canada, in its decision written by Chief Justice McLachlin, underscored the desirability of judges penning their own judgements in their own words. However, the SCC held firm to the position that copying without attribution in reasons for judgement is not, in itself, grounds for setting aside a judge’s decision. It was only if the copying is extensive enough to exceed the objective test set out in R v. Teskey, 2007 SCC 25, that the decision would be deemed to violate fair process and be set aside [2013 SCC 30 at paras 1, 12, 13].
The SCC also emphasized that judges benefit from a presumption of judicial integrity and impartiality. Thus, the party seeking to set aside a judgement because the judge’s reasons incorporated the material of others bears the burden of showing that a reasonable person, apprised of the relevant facts, would conclude that the judge failed to put her mind to the facts, the arguments and the issues, and decide them independently and impartially – i.e., the objective test in Teskey [2013 SCC 30 at paras 13, 18].
McLachlin C.J.C. held that the threshold for rebutting the presumption of judicial integrity is high, as the presumption carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends upon that presumption [2013 SCC 30 at para 20]. Thus, the presumption can only be rebutted by cogent evidence sufficient to persuade a reasonable person that the judge did not perform her sworn duty to fairly consider the dispute [2013 SCC 30 at para 29].
The crux of the Cojocaru appeals was laid out by the Chief Justice at paragraph 30 of her reasons:
The issue before us is not whether the practice of incorporating what others have written into judgments is a good thing. As we will see, judicial copying is a longstanding and accepted practice, yet one that, carried to excess, may raise problems. Rather, the issue is when, if ever, copying displaces the presumption of judicial integrity and impartiality.
McLachlin C.J.C. is careful to point out that the nature of judicial writing is different from other forms of writing, such as term papers and novels, where plagiarism and copying without attribution is frowned upon. A judge’s written reasons are not required to be the original product of the judge’s mind – she is not tasked with writing original prose, but with rendering a decision upon due consideration of the facts, evidence, and law before her [2013 SCC 30 at paras 31-32].
The Supreme Court of Canada ultimately ruled, on the issue of copying:
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. They are not the judge’s reasons, but those of the person whose prose the judge copied. Avoiding this impression is a good reason for discouraging extensive copying. But it is not the copying per se that renders the process of judgment-writing unfair [2013 SCC 30 at para 35].
Applying the aforementioned principles, the Chief Justice upheld Smith J.A.’s finding that the defendants had failed to rebut the presumption of judicial impartiality. The Chief Justice agreed that the trial decision contained signs that Groves J. had applied his mind to the issues before him; for example, the trial judge had written some original paragraphs and made findings contrary to the submissions of the plaintiffs, the party from which he copied [2011 BCCA 192 at paras 22-28; 2013 SCC 30 at para 55].
The Supreme Court of Canada also affirmed Smith J.A.’s position that the trial judge had made palpable and overriding errors in his findings of negligence. The SCC upheld the trial judge’s finding of liability against the obstetrician who failed to obtain Ms. Cojocaru’s informed consent to the vaginal birth after caesarean section (VBAC) procedure, but agreed with Smith J.A. that the findings of liability against the hospital, the obstetrical nurse, and the two other doctors must be set aside [2013 SCC 30 at para 116].
AFFIRMS THE STATUS QUO
Ultimately, only the obstetrician was held liable for the $4,045,000 in damages awarded by the trial judge – the amount of which was upheld by the SCC. Given that the obstetrician’s professional insurance would likely be paying out the $4 million award, the Supreme Court’s decision in Cojocaru appears to strike a reasonable middle ground between the interests of medical practitioners and the interests of a young boy with cerebral palsy.
Perhaps the greatest contribution to the jurisprudence that Cojocaru offers is the Supreme Court’s affirmation that save for a few exceptions – such as Lord Denning’s renowned description of cricket’s importance in the village of Lintz, the 736-paragraph treatise on freemen of the land by Associate Chief Justice Rooke of the Court of Queen’s Bench of Alberta, or the Michigan judge who incorporated a 10-stanza rap verse in her dismissal of a defamation lawsuit against rapper Eminem – judges are not typically expected to channel their inner Oscar Wilde when writing their decisions.
However, the SCC has placed a limitation on extensive copy-and-pasting from counsel submissions: “Where the adoption of the material of others would lead a reasonable person to conclude that the judge has not put 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” [2013 SCC 30 at para 49]. The Chief Justice’s ruling in Cojocaru seems to indicate that where there is some evidence that the adjudicator did not merely adopt one party’s position without due independent consideration, the decision will stand.
Courts in England, Hong Kong, Australia, and the United States also appear to agree with the general status quo reality that judges often rely on the submissions of counsel to help guide their decisions [2013 SCC 30 at paras 37-41]. Particularly in specialized areas of law, trial judges often depend on counsel’s expertise to fill in the gaps of their own knowledge in niche practice areas.
Given the already-overburdened responsibilities of judges in our court systems today, to require that judges become original authors in each of their decisions may increase public faith in the justice system, but at the undue expense of judicial efficiency and access to justice. As the highest court in the land, the Supreme Court of Canada (via the Chief Justice, no less) has chosen to acknowledge the realities of legal practice and the function of judiciaries.
My learned friends at the University of Calgary Faculty of Law’s blog on developments in Alberta law have astutely pointed out that, expanding on paragraph 22(h) of University of Alberta v. Chang, 2012 ABCA 324:
However, the preparation of reasons for judgment by parties shifts the cost and burden of setting out the facts, issues, law, application of the law to the facts, and conclusions from the judge and Canadian citizens paying for a public legal system to individual clients and their lawyers. Clients are now paying for lawyers to provide written reasons that can be copied-and-pasted. At a time when the Chief Justice of the Supreme Court is speaking out frequently about how the middle class cannot hope to pay legal fees, shifting these costs adds to the inaccessibility of justice.
It is my contention that these “additional” costs for preparing well-written briefs are recoverable via traditional costs award mechanisms that are readily available and applied by the courts. Moreover, greater inaccessibility to justice would result from courts being further overwhelmed and backlogged due to judges having to write each of their own decisions from scratch, delaying the delivery of justice to litigants and increasing litigation costs in that manner.