Thursday, November 29, 2012

Does Canada have an epidemic of "copy-and-paste" Judges ..... more cases for the Canadian Judicial Council?

Good Day Readers:

When a reader sent the link to this story it rang familiar and sure enough it's not the first case. Didn't take long to find this.
The Supreme Court of Canada heard an unusual case today. The basis of the appeal was not any action of the plaintiffs or the defendants, but rather one of the trial judge. In his 368-paragraph decision to award $4 million in damages to the plaintiffs, the trial judge is alleged to have copied 321 paragraphs from the plaintiff’s submissions.* (The fact that 20 of the 47 paragraphs written by the judge in his own words consist largely of uncontroversial facts or introductory passages didn’t help, either.)

On appeal, the majority of the British Columbia Court of Appeal decided that it was not OK for a trial judge to deliver reasons for judgment that to a large extent reproduced the successful party’s submissions without attribution.+

Let’s be clear: there’s nothing inherently wrong with a judge’s adopting of parties’ submissions. In fact, from time to time, a party’s submissions may accurately reflect the judge’s opinion in rendering the decision. I have seen it done at various levels of the judiciary.

However, it’s one thing for judges to adopt analysis or submissions to aid their reasoning. But it’s another to cut and paste the reasons for judgment on a wholesale scale from the successful party’s submissions. The practice gives rise to concerns of perceived bias. To some it may even suggest the demise of judicial integrity.

Regarding the case at bar, there is very little evidence that the trial judge applied his own meaningful analysis, based on the evidence presented before the court, to reach a reasonable conclusion. In fact, a majority of the Court of Appeal found that the trial judge “failed entirely to deal with a cogent and uncontradicted defence” submitted by the defendants.

The two findings above, concluded the Court of Appeal, may lead the public to think that the judge has not done his job as an impartial umpire of complicated disputes and that he may not have examined all of the evidence before making his findings. As such, the Court of Appeal concluded that the decision in question could not stand. A new trial was ordered.

Unsatisfied with the prospect of a new trial, the plaintiffs obtained permission to bring the matter to the Supreme Court of Canada. The judges at the top court now must confront the matter and decide whether the trial judge’s wholesale importation of the successful party’s submission undermined the presumption of judicial integrity and impartiality.

*Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital, 2009 BCSC 494 (CanLII)
+Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital, 2011 BCCA 192 (CanLII)

Then there's the Manitoba Queen's Bench Justice who like to use the same example in explaining to juries the difference circumstantial evidence and direct evidence (heard it twice). Circumstantial evidence is when you see someone wearing a raincoat. Direct evidence is when it's dripping wet.

Clare L. Pieuk
Controversy Surrounds Alleged Judicial Plagiarism in Judge's Decision
By Paula Simons
Tuesday, November 20, 2012
Law Courts in Edmonton (Photograph by Candace Elliott

EDMONTON - “Cut and paste.”

It’s one of the most dangerous, tempting tricks in the writers’ lexicon — especially with today’s technology, which allows you to embed someone else’s phrases and paragraphs seamlessly into your own.

Here in Alberta, we’ve seen former premier Ralph Klein make himself a laughingstock by cutting and pasting his way through a university paper. We’ve seen Philip Baker, the dean of the University of Alberta’s School of Medicine, resign his position after he cut and pasted the words of American doctor-turned-author Atul Gawande into a speech.

For journalists, of course, the wicked allure of cut-and-paste is ever present, and the list of high-profile writers who’ve been outed as copy (and paste) cats is long and inglorious.

But a decision released last week by the Alberta Court of Appeal puts a whole new spin on the copy and paste phenomenon.

In a blistering unanimous ruling, Justices Jack Watson, Frans Slatter and Patricia Rowbotham tore a strip off Justice Donald Lee of the Court of Queen’s Bench.

Lee was ruling on two applications in a complicated, convoluted intellectual property case involving the University of Alberta and Dr. Lung-Ji Chang, a former U of A biomedical researcher, now on faculty at the University of Florida.

They’ve been a legal loggerheads for 10 years, quarrelling over commercial rights to Chang’s gene therapy and cancer research.

According to the Court of Appeal, Lee cut and pasted his legal reasoning in two critical findings in the case directly from the written arguments of the lawyers — particularly the lawyers acting for Chang.

“Every one of the paragraphs in the reasons was extracted, essentially verbatim, from the chambers briefs,” said the appeal court. “There is no independent authorship. Even spelling mistakes in the briefs are faithfully carried forward.”

The issue isn’t merely plagiarism. In substituting the arguments of one of the litigants for his own, said the appeal court, Lee had “failed to engage in any meaningful analysis of the issues, and failed to provide reasons that disclose his reasoning.”

Lee didn’t weigh and evaluate the evidence then draw his own impartial, independent conclusions. He simply parroted back the arguments of one of the litigants, without any meaningful discussion or examination of the conflicting evidence in the case.

And so, the appeal court threw out Lee’s rulings in their entirety. Now, all parties in the case will have the expense of making their applications all over again.

That’s especially ironic, given Lee’s findings had to do with whether previous delays in the case had been inordinate.

On Monday, the University of Alberta expressed pleasure with the ruling, declining further comment because the matter is still before the courts. (Phone and email messages to Chang and his lawyer went unanswered.).

But what happens to Donald Lee? He’s a federally appointed judge, and federal judges are disciplined, when the need for discipline arises, by the independent Canadian Judicial Council. But the council can only act if it receives a formal written complaint. And even then, its powers are tightly circumscribed. In the most serious, extreme cases, the Council can hold a public inquiry, which can lead to dismissal. But there’s virtually no mechanism to discipline a judge for a lesser offence — apart from suggesting a letter of apology or some kind of remedial training. Those policies are meant to safeguard judicial independence, to insulate judges from political persecution. But while it’s essential to protect our judicial system from external meddling, such a system makes it difficult to sanction judges for human errors that don’t quite warrant removal from the bench.

It’s bad enough for a premier, taking a correspondence course, to copy without citation. It’s bad enough for a dean, making a dinner speech, to steal someone else’s stories. It’s far worse for a sitting judge, whose job it is to uphold the law, to abuse the cut-and-paste function to avoid his own fundamental intellectual responsibilities. Yet Lee isn’t alone. Just last week, the Supreme Court of Canada heard a strikingly parallel case from British Columbia, in which the judge ruling in a medical malpractice case regurgitated the plaintiff’s arguments and analysis in place of his own.

Lee’s actions may not warrant removal from the bench. But to maintain public confidence, to sustain the integrity of our courts, the Canadian Judicial Council must send a strong message that cut-and-paste justice won’t cut it. If we can’t rely on our judges to think for themselves, to give all arguments a fair and thorough analysis, then none of us can have confidence in the rule of law.


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