Skip to main content

The Supreme Court of Canada building is seen in Ottawa.

DAVE CHAN/The Globe and Mail

Judges who cut and paste material they did not write into their judgments are not plagiarists, the Supreme Court of Canada has ruled.

Moving to resolve a tricky problem judges encounter regularly, the court said on Friday they may incorporate external material into decisions provided they have applied themselves diligently to the legal issues in the case.

"To set aside a judgment for failure to attribute sources or for lack of originality alone would be to misunderstand the nature of the judge's task and the time-honoured traditions of judgment-writing," the court said.

Story continues below advertisement

It upheld portions of a $4-million award in a medical malpractice lawsuit, concluding the trial judge had not tainted his reasoning by importing large portions of the plaintiff's written arguments. However, the court found fault with some of the judge's specific conclusions regarding the liability of various doctors and nurses at a birthing emergency that resulted in serious injuries to a newborn. It eliminated several of them as defendants based on the trial judge's erroneous conclusions.

The decision provided an emphatic response to an increasingly contentious issue in the legal world – material from other sources that is pasted into decisions. Concern is rising at all levels of courts about passages copied from other documents and decisions, often without a trace of attribution.

The B.C. Court of Appeal had earlier reversed the finding in the malpractice lawsuit largely because the trial judge copied, and failed to attribute, significant portions from the plaintiff's closing arguments.

But Chief Justice Beverley McLachlin said it would be wrong to place an unrealistic burden on judges that would prohibit them from re-printing material that can be integral to their rulings.

"Judicial copying is a long-standing and accepted practice, although, if carried to excess, may raise problems," she said.

The child, Eric Victor Cojocaru, suffered brain damage during delivery at the British Columbia Women's Hospital and Health Centre. His mother, who had previously had a child by cesarian section, had been considered a high-risk patient.

John Kleefeld, a University of Saskatchewan law professor, noted that in other forms of unattributed copying, the "victims" are usually seen as those whose words were copied.

Story continues below advertisement

"However, in this setting, the person from whom the words have been copied is usually delighted to have their submissions incorporated into the judge's reasons," Prof. Kleefeld said.

Report an error Editorial code of conduct
Due to technical reasons, we have temporarily removed commenting from our articles. We hope to have this fixed soon. Thank you for your patience. If you are looking to give feedback on our new site, please send it along to feedback@globeandmail.com. If you want to write a letter to the editor, please forward to letters@globeandmail.com.

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff. Non-subscribers can read and sort comments but will not be able to engage with them in any way. Click here to subscribe.

If you would like to write a letter to the editor, please forward it to letters@globeandmail.com. Readers can also interact with The Globe on Facebook and Twitter .

Welcome to The Globe and Mail’s comment community. This is a space where subscribers can engage with each other and Globe staff.

We aim to create a safe and valuable space for discussion and debate. That means:

  • Treat others as you wish to be treated
  • Criticize ideas, not people
  • Stay on topic
  • Avoid the use of toxic and offensive language
  • Flag bad behaviour

Comments that violate our community guidelines will be removed.

Read our community guidelines here

Discussion loading ...

To view this site properly, enable cookies in your browser. Read our privacy policy to learn more.
How to enable cookies