The British Columbia Court of Appeal (Cojocaru v. British Columbia Women’s Hospital and Health Center 2011 BCCA 192) has overturned — 2-1 –the ruling of a judge whose written reasons for judgment:
. . .cannot be considered to represent his reasons, do not meet the functional requirement of public accountability, and do not allow for meaningful appellate review.
The judge in question adopted 321 paragraphs of his 368 paragraph judgment “almost word-for-word” from the respondent’s written closing submissions and did not acknowledge the borrowing.
It’s by no means unheard of for judges to adopt counsel’s written submissions as part of their own written decisions. (The judgment contains references to a number of such cases.) After all, judges are often overworked and under pressure to render opinions promptly. As I understand it, though, it’s considered good judicial practice to acknowledge adopted prose as the work of counsel. And, of course, a reader of an opinion — and above all the court of appeal — must be able to see either that the issues at trial were so clear and argued with such clarity that things resolve basically into a choice between one set of arguments or the other, or that the judge has evidently come to grips with the issues such that it’s clear the reasoning is his or hers.
The majority did not agree with the dissenting judge’s wry assertion [at para 22] that “there are signs in the reasons that the trial judge applied his mind to the issues.” Simply put, this was a case where justice was not seen to be done.
[hat tip: Joel Kohm]