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Judicial plagiarism on the radar

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The fallout from Prime Minister Stephen Harper's attempt to fill a vacant Quebec seat on the Supreme Court of Canada has spawned a lot of plot lines -- our highest court's rejection of his first choice, Federal Court of Appeal Justice Marc Nadon, accusations Chief Justice Beverley McLachlin improperly lobbied against Nadon's appointment and allegations justice minister Peter MacKay breached the confidentiality of the judicial selection committee's deliberations.

But of late, a subplot has emerged. One that's cast a light on a little-known facet of unseemly judge conduct -- judicial plagiarism.

One of the original group of six heavyweight candidates from Quebec that included Marc Nadon was Michel Shore, a judge of the Federal Court's trial division. While under scrutiny as a potential Supreme Court nominee, it emerged some of his written judgments were infamous for copying litigants' lawyers' briefs and spouting them back as his decision. So much so the Federal Court's appellate division bluntly warned him the copying must stop.

In 2011, in rejecting a man's claim to a religious right to smoke cannabis, Shore copied, without attribution, 144 of 152 paragraphs in his decision from the federal government's written argument. In another case, he copied 62 of 66 paragraphs almost verbatim from a federal brief.

Justice Shore's copying was thrown into bold relief by a recent medical-negligence case that hinged on judicial plagiarism. A case that last year wound its way up to the very court Justice Shore was being considered for.

In Cojarcu v. British Columbia Women's Hospital and Health Centre, the trial judge's decision copied most of the suing party's written argument. Of 368 paragraphs in the judgment, 321 were lifted from the plaintiff's brief. On appeal, the British Columbia Court of Appeal found the copying of the plaintiff's submissions so egregious it overturned the trial judge's ruling and ordered a new trial. In 2013, the case landed in the lap of the Supreme Court.

Media reports about the Cojarcu case sometimes focused on the judge's lack of proper attribution. But, at its core, judicial plagiarism isn't about copyright, or proprietary interests, or even wrongful appropriation of a litigant's arguments. It's about whether the judge did his or her job.

At the heart of the appeal to the Supreme Court were allegations the wholesale copying evidenced a judge who'd uncritically adopted one side's position. The grossly excessive copying of one side's arguments and issuing it as the court's judgment raised the question of whether the judge addressed his mind to the issues and evidence, so as to render a fair and impartial decision.

Cutting and pasting huge chunks of a lawyer's brief into a decision suggests -- and maybe demonstrates -- a lack of independent analysis. It also causes the losing party to believe its position wasn't given the consideration it deserves. It's OK for a judge to endorse a theory one side advocated. But that must be because the theory was correct on the facts, not because he or she unthinkingly adopted that party's position.

Judicial opinions are the principal work product of judges. They ought to prove to litigants the court diligently considered their claims or defences and arrived at a reasoned decision. Anything less gives rise to a suspicion the court abdicated its judicial duty.

Ultimately, the trial judge's startlingly unoriginal judgment was allowed to stand. The Supreme Court, on the critical issue of the unattributed copying, reversed the B.C. appeal court's decision to squelch the trial judge's decision due to plagiarism.

Nonetheless, the Supreme Court was clearly unhappy with the intellectual dishonesty displayed by the trial judge. It underlined that litigants reasonably expect their cases to be heard by judges who are not only impartial but also visibly, critically engaged. Its take really boiled down to a variation on an old legal maxim in favour of transparency: "Not only must justice be done, it must also be seen to be done."

The case also, belatedly, put judicial plagiarism on the media's radar.

Justice Shore's reported lack of diligence in formulating judgments in his own words likely torpedoed his candidacy. The widely held supposition is when his penchant for copying surfaced in news reports, the PMO dropped him from the list of favoured Quebec candidates.

 

Douglas J. Johnston is a Winnipeg lawyer.

Republished from the Winnipeg Free Press print edition June 11, 2014 A7

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