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May 29, 2013

Are Judges Allowed to Plagarize?

The Supreme Court recently commented on how much copying judges are permitted to do in the course of their reasons.

In Cojocaru v. British Columbia Women's Hospital and Health, [2013] SCC 30, the trial judge incorporated large portions of the plaintiff's submissions into his reasons for judgment.  In fact, of 368 paragraphs in the judgment, only 47 were predominately the judge's own words.  The Court held that "while it is desirable that judges express their conclusions in their own words, incorporating substantial amounts of materials from submissions or other legal sources into reasons for judgment does not without more permit the decision to be set aside".  The judgment will only be set aside if a reasonable person would conclude that the judge did not put his or her mind to the issues and decide them independently and impartially.  The Court held that the decision should not be set aside.  The key factors appear to be that the judge did not accept all of the plaintiff's submissions, discussed a number of issues and stated his conclusion in his own words.

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