Sunday, July 26, 2015 Article on Cut-and-Paste Judicial Decisions

In the Cojocaru v. British Columbia Women's Hospital and Health Centre decision (2013 SCC 30, [2013] 2 SCR 357), the Supreme Court of Canada had to decide whether it was OK for a judge to simply copy-and-paste, without attribution, vast portions of a party's factum in their own reasons.

The website yesterday published an article on the topic of judges copying verbatim sections from parties' facta:
"Decisions are evidence of judicial thinking. Indeed, legal precedent has earned a 'presumption of correctness' based on the 'judge's own considered conclusions' unless 'clearly erroneous.' of fact and conclusions of law, evidence showing a lack of 'independent judgment' might reveal a due process violation."
"Some common objections to verbatim copying in judicial decisions include: (1) adoption of one party's fact-finding ex parte; (2) no independent decision-making; (3) no notice, hearing or opportunity for objection by other party; (3) no evidence to support adopting findings; and (4) improper delegation of decision-making power to a party."

"In response, appellate decisions and scholarly literature have offered some useful indicia of 'independent judgment': (1) an oral pronouncement that reveals decision-making before inviting or adopting the proposals of parties; (2) citation of evidentiary support and legal principles for the court's conclusions; (3) biases and advocacy of the parties filtered out in vetting the factual findings; and (4) a robust appellate review assuring fidelity to due process and statutory requirements for independent judicial reasoning."
"This article collects notable decisions and scholarly research concerning the legal and ethical issues associated with cut-and-paste decision-making."
The article cites to US and to a few Canadian decisions and articles.

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posted by Michel-Adrien at 2:49 pm


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