What They Said

It is usually understood that judges must give reasons for their decisions. But does it matter if the reasons a judge gives are largely lifted from the submissions of one of the parties? That was the question that the Supreme Court of Canada confronted in Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, delivered on Friday. The Court’s answer is that while it’s not “good practice” for judges to adopt a party’s submissions wholesale, that is not enough for an appellate court to set the decision aside.

The trial decision at issue is 368 paragraphs long, of which 321 were taken directly from the plaintiffs’ submissions. As the Supreme Court put it, “[t]his raises the concern that the trial judge did not put his mind to the issues, the evidence and the law as he was sworn to do, but simply incorporated the plaintiffs’ submissions” (par. 10). The Court described this concern as procedural, because it has to do with the fairness of the decision-making process, rather than with the substantive correctness of the outcome or the sufficiency of the reasons given to support it. The test to be applied in deciding whether a concern with the fairness of a court’s decision-making warrants setting aside the allegedly unfair decision is whether

a reasonable observer, having regard to all relevant matters … would conclude that the alleged deficiency, taking into account all relevant circumstances, is evidence that the decision-making process was fundamentally unfair, in the sense that the judge did not put her mind to the facts, the arguments and the issues, and decide them impartially and independently. (Par. 13)

However, in applying this test, courts must bear in mind “the presumption of judicial integrity,” which “carries considerable weight” (par. 20) and must be rebutted by “cogent evidence” (par. 22). Without more, the Supreme Court holds, the fact that a judge incorporated a party’s submissions into his or her reasons is not enough to rebut the presumption, because it does not show that the judge failed to consider the case and come to his or her own conclusions about the issues it presents.

The Court says that “judicial copying” (par. 30) is not a bad thing in itself. Reasons for judgment should not be assessed by the same criteria as works of literature or scholarships. They do not normally aim for originality. For that reason, a judge’s failure to acknowledge the fact of copying or mention one’s sources does not matter ― the judge is not actually claiming that the work of others is somehow his own original creation. The Court quotes, approvingly, an article by Simon Stern arguing that lack of originality is, if anything, a virtue rather than a vice of judicial writing:

[t]he bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law.

While it is best not to abuse the privilege of being unoriginal, and judges should try to explain their decisions in their own words, failure to do so does not demonstrate that judge did not actually consider and decide the case.

In the case at bar, the trial judge actually wrote some paragraphs of his own, and did not accept all of the claims of the party whose submissions made up the bulk of his reasons. This shows, the Supreme Court holds, that he did not fail to consider the case, and this the presumption of integrity has not been rebutted. (The Court then goes on to hold that a number of the judge’s conclusions were the result of palpable and overriding error, and reverses them ― but that is, in theory at least, a different story that doesn’t interest me here.)

I have mixed feelings about this decision.

On the one hand, the Court is right that originality of ideas and writing is not something judges normally aim for (it might be a trait of great judges, but there is an important difference between what makes a judge great, and what is required in ordinary adjudication, as I have argued here). So some copying and some failure to acknowledge sources is arguably not a big deal (though I still think that judges should avoid such practices). And of course it is difficult to draw the line between what is acceptable and what is not, so I can sympathize with the Supreme Court wanting to discourage litigation on this issue, which would create a mess of appellate decisions and drive up the costs of litigation for parties, thus further impeding access to justice. (I suspect, at least, that such considerations must have been on the judges’ minds, though the Court does not explicitly discuss them.)

On the other hand, the decision means that judges who delegate the writing of their decisions to law clerks ― or who use the parties as their law clerks, as the trial judge here seems to have done ― can go on with no fear of appellate correction. Yet our judicial system relies on the articulation by judges of the reasons for their decision to help judges maintain the attitude of impartial decision-makers open to persuasion, as I have explained here. Shortcuts that allow judges to escape the burden of stating their reasons for decision can compromise this attitude. They might also lead to substantively poor  decision-making. Indeed, this may well have happened in this case ― it is not often that trial decisions are overturned, even in part, for “palpable and overriding error” in the assessment of evidence.

On balance, the Supreme Court is probably still right, because the law is not a very good tool for deciding when judges have strayed far enough from what is “good practice” in reason-giving for their decisions to be set aside. But judges themselves ought not to take this decision as an endorsement of their taking short-cuts. Their position imposes on them duties that go beyond the requirements of the letter of the law. The “presumption of integrity” of which the Supreme Court makes so much can only exist if judges are mindful of these duties. “What they said” is not enough.

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