Tuesday, November 13, 2012

More on the Cojocaru case in Canada

The Supreme Court of Canada is now reviewing the Cojocaru case, wherein the lower court judge copied without attribution 321 out of 368 paragraphs of his decision from papers authored by plaintiff/respondent.

See Top court to hear case of judge who plagiarized ruling

An earlier decision in Cojocaru case discussed the hazards of a verbatim adoption of one party’s position:

11 Writing extra-judicially in respect of the American Bar Association's Model Code of Judicial Conduct, Canon I (a judge should "uphold the integrity and independence of the judiciary"), Judge Joyce G. George of the Ohio Supreme Court made the following apt remarks in her Judicial Opinion Writing Handbook (Buffalo: William S. Hein & Co., Inc., 2007) at 713-14:

The judge has an ethical obligation to act independently. Thus, he has the responsibility in an individual case to make his own decision on the outcome of the case, to decide the various issues presented and to reason through to a conclusion. He must express his own views on the merits, accept or reject opposing views, resolve any conflicts that exist in relevant evidence, find facts by using his own rendition of the facts as presented and his own perceptions of the credibility of witnesses, and arrive at a resolution.


The appellants submit the unacknowledged adoption of the respondents' written argument stands alone as a reversible error. They contend the reasons demonstrate no evidence of any reasoning process or the formulation of any opinions other than those of counsel for the respondents and that, as a result, they create a reasonable apprehension that the trial judge did not conduct an independent review of the evidence, did not engage in his own analysis, and did not thereafter reach his own findings of fact. Consequently, the appellants submit, they do not provide a basis for appellate review and the trial judge has committed an error of law that necessitates an order for a new trial.


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