In fact, it’s necessary for the efficient functioning of the legal system.
Merits and appearances matter.
Cojocaru British Columbia Women’s Hospital and Health Centre, 2013 SCC 30 [CanLII link here], released today, holds, unanimously, that the mere fact judicial reasons duplicate, with or without attribution, a party’s submissions does not amount to reversible error.
The plaintiff succeeded at trial. The BCCA (by a majority) ordered a new trial. The SCC allowed the appeal. Then dealing with the merits, the SCC unanimously varied the trial judgment so that the plaintiff obtained judgment only against one of the defendants. The SCC dismissed the balance of the action.
That, other than deciding which paragraphs to copy in the balance of this note, is the extent of my original thinking. (That’s intended as a straight line, too. Feel free.)
From the headnote
As a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law, and explain in his or her own words her conclusions on the facts and the law. However, including the material of others is not prohibited. Judicial copying is a long‑standing and accepted practice, although if carried to excess, may raise problems. If the incorporation of the material of others is evidence that would lead a reasonable person to conclude, taking into account all relevant circumstances, that the decision‑making process was fundamentally unfair, in the sense that the judge did not put her mind to the facts, the argument and the issues, and decide them impartially and independently, the judgment can be set aside.
A complaint that a judge’s decision should be set aside because the reasons for judgment incorporate materials from other sources is essentially a procedural complaint. Judicial decisions benefit from a presumption of integrity and impartiality — a presumption that the judge has done her job as she is sworn to do. The party seeking to set aside a judicial decision because the judge’s reasons incorporated the material of others bears the burden of showing that the presumption is rebutted. The threshold for rebutting the presumption of judicial integrity and impartiality is high, and it requires cogent evidence. The question is whether the evidence presented by the party challenging the judgment convinces the reviewing court that a reasonable person would conclude that the judge did not perform her sworn duty to review and consider the evidence with an open mind.
The fact that a judge attributes copied material to the author tells us nothing about whether she put her mind to the issues addressed in that copying. Nor is lack of originality alone a flaw in judgment‑writing; on the contrary, it is part and parcel of the judicial process. 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 concern about copying in the judicial context is not that the judge is taking credit for someone else’s prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge’s thinking. Extensive copying and failure to attribute outside sources are in most situations practices to be discouraged. But lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity. This occurs only if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision.
From the reasons
McLachlin C.J. wrote for the Court.
 The main question on this appeal is whether a trial judge’s decision should be set aside because his reasons for judgment incorporated large portions of the plaintiffs’ submissions. For the reasons that follow, I conclude that while it is desirable that judges express their conclusions in their own words, incorporating substantial amounts of material from submissions or other legal sources into reasons for judgment does not without more permit the decision to be set aside. Only if the incorporation is such that a reasonable person would conclude that the judge did not put her mind to the issues and decide them independently and impartially as she was sworn to do, can the judgment be set aside.
 This result, as we shall see, is consistent with longstanding practice in Canada and abroad. Yet, as the disagreement in the courts below and the arguments before us make clear, the jurisprudential framework and the governing principles involved are far from clear. This suggests the need to look carefully at the nature and function of reasons for judgment and the long tradition of judicial copying.
 Applying the principles discussed below, I conclude that the incorporation of large portions of the plaintiffs’ submissions in the reasons in this case does not justify overturning the trial judge’s decision. The presumption of judicial integrity and impartiality has not been displaced. On the contrary, the reasons demonstrate that the trial judge addressed his mind to the issues he had to decide. This said, aspects of the reasons disclose palpable and overriding error and must be set aside. In the result, I would allow the appeal, but vary the trial judgment
 In a case such as this, the essence of the complaint is not that the reasons are functionally insufficient — the parties agree that on their face, the reasons explain what was decided and provide a basis for appellate review — but rather that the judge’s wholesale incorporation of the material of others shows that he did not put his mind to the issues and decide them impartially. It is a complaint not about sufficiency, but about process, and stands to be resolved on the basis of the core analysis in Teskey [R. v. Teskey, 2007 SCC 25,  2 S.C.R. 267] — whether the presumption of judicial impartiality has been rebutted.
 The presumption of judicial integrity and impartiality is a high one, which can be rebutted only by cogent evidence.
 Procedural defects relating to reasons for judgment are many and varied. In all cases, the underlying question is the same: would a reasonable person, apprised of all the relevant circumstances, conclude that the judge failed to come to grips with the issues and make an impartial and independent decision, thereby defeating the presumption of judicial integrity and impartiality?
 Evidence capable of displacing the presumption of judicial integrity and impartiality may take different forms. It may be intrinsic, arising on the face of the reasons themselves. For example, no reasons or unintelligible reasons may be challenged by the form of the reasons themselves. Or it may be extrinsic: for example, evidence that the judge issued a decision before receiving the submissions of counsel touching on an important issue; that the judge was overheard telling someone that he was determined to find in favour of one of the parties regardless of the evidence; or that there was delay in issuing the reasons or extensive incorporation of material. The analysis is holistic and contextual. The question is whether the evidence presented by the party challenging the judgment convinces the reviewing court that a reasonable person would conclude that the judge did not perform her sworn duty to review and consider the evidence with an open mind: Teskey.
 The issue before us is not whether the practice of incorporating what others have written into judgments is a good thing. As we will see, judicial copying is a longstanding and accepted practice, yet one that, carried to excess, may raise problems. Rather, the issue is when, if ever, copying displaces the presumption of judicial integrity and impartiality.
 Approached from this perspective, a number of the criticisms advanced against copying fall by the wayside. One such criticism, made by the majority of the Court of Appeal in this case, is the judge’s failure to attribute the incorporated material to the original author. This criticism is connected to the idea that the reasons should be the “original” product of the judge’s mind, and that to the extent they are not, the judge should acknowledge her sources. Failure to attribute sources and lack of originality, without more, do not assist in answering the ultimate question — whether a reasonable person would conclude from the copying that the judge did not put her mind to the issues to be decided, resulting in an unfair trial. The fact that a judge attributes copied material to the author tells us nothing about whether she put her mind to the issues addressed in that copying. Nor is lack of originality alone a flaw in judgment-writing; on the contrary, it is part and parcel of the judicial process. It may not be best practice for judges to bulk up their judgments with great swaths of borrowed material. But the fact remains that borrowed prose, attributed or otherwise, does not, without more, establish that the judge has failed to come to grips with the issues required to be decided.
 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 conventions surrounding many kinds of writing forbid plagiarism and copying without acknowledgement. Term papers, novels, essays, newspaper articles, biographical and historical tomes provide ready examples. In academic and journalistic writing, the writer is faced with the task of presenting original ideas for evaluation by an instructor or by peers, or of engaging in principled debate in the press. The task of judgment-writing is much different. As Simon Stern puts it:
Judges are not selected, and are only rarely valued, because of their gift for original expression. Just as most lawyers would rather present their arguments as merely routine applications of settled doctrine, yielding the same legal results that other courts have delivered repeatedly, judges usually prefer to couch their innovations in familiar forms, borrowing well-worn phrases to help the new modifications go down smoothly. The bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law…. [T]he effort to demonstrate that similar cases are being treated alike often finds its rhetorical manifestation in a penchant for analyses that have a déja lu quality — usually because the words have been read before. This tendency, though visible throughout the legal system, is most pronounced at the trial level. [Emphasis in original; p.1.]
(“Copyright Originality and Judicial Originality” (2013), 63 U.T.L.J. 1)
 The scope for judicial creativity is narrow, but not non-existent. It finds expression in the ordering of the reasons and the disposition of the arguments and issues, and in the occasional eloquent statement of the facts or restatement of the law. Nevertheless, it remains the case that judicial opinions, especially trial judgments, differ from the kind of writings that traditionally attract copyright protection, with the concomitant demands of originality and attribution of sources. Judgments are “usually collaborative products that reflect a wide range of imitative writing practices, including quotation, paraphrase, and pastiche” (Stern, at p. 2). Judgments routinely incorporate phrases and paragraphs from a variety of sources, such as decided cases, legal treatises, pleadings, and arguments of the parties. Appellate judges may incorporate paragraphs borrowed from another judge on the case or from a helpful law clerk. Often the sources are acknowledged, but often they are not. Whether acknowledged or not, they are an accepted part of the judgment-writing process and do not, without more, render the proceeding unfair.
 In this spirit, and in the interests of expediting judicial business, courts actively encourage parties to submit written arguments and proposed orders. This process is accelerating. In the United States, and more and more in Canada, courts welcome electronic submissions. Such submissions help the judge get the decision right, facilitate the task of judgment writing and speed the judicial process. As Gregory M. Silverman frankly observes, the “benefits provided by electronic filing” include “reduced time for … retyping as portions of one document can be easily transferred to another using the cut-and-paste operation of word processing software” (“Rise of the Machines: Justice Information Systems and the Question of Public Access to Court Records over the Internet” (2004), 79 Wash. L. Rev. 175, at p. 196).
 The concern about copying in the judicial context is not that the judge is taking credit for someone else’s prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge’s thinking. They are not the judge’s reasons, but those of the person whose prose the judge copied. Avoiding this impression is a good reason for discouraging extensive copying. But it is not the copying per se that renders the process of judgment-writing unfair. A judge may copy extensively from the briefs in setting out the facts, the legal principles and the arguments, and still assess all the issues and arguments comprehensively and impartially. No one could reasonably contend that the process has failed in such a case.
 To sum up, extensive copying and failure to attribute outside sources are in most situations practices to be discouraged. But lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity. This occurs only if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision.
 Judges are busy. A heavy flow of work passes through the courts. The public interest demands that the disputes and legal issues brought before the courts be resolved in a timely and effective manner, all the while maintaining the integrity of the judicial process. In an ideal world, one might dream of judges recasting each proposition, principle and fact scenario before them in their own finely crafted prose. In reality, courts have recognized that copying is acceptable, and does not, without more, require the judge’s decision to be set aside. While the theoretical basis on which the result is explained varies, this is the position in England, various commonwealth countries, the U.S. and in Canada.