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.
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.
"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.