|
Reasons - 'Self-Plagiarism'. Gannon v. Windsor Police Service
In Gannon v. Windsor Police Service (Ont Div Ct, 2026) the Ontario Divisional Court dismissed a police officer's JR, here brought against "the decision of the Ontario Civilian Police Commission (the “Commission” or the “OCPC”)" wherein the "Commission (i) confirmed the finding that Sergeant Gannon was guilty of Unlawful or Unnecessary Exercise of Authority, (ii) revoked the finding that he was guilty of Neglect of Duty, (iii) revoked the Penalty Decision, and (iv) ordered a new hearing on the charge of Neglect of Duty and penalty before a new hearing officer."
Here the court considers the use of precedents and 'self-plagiarism' in an administrative context:B. Use of precedents
[61] Sergeant Gannon submits that the Commission erred in its treatment of the Hearing Officer’s use of precedents.
Applicant’s position at OCPC hearing and Commission’s findings
[62] Before the Commission, Sergeant Gannon challenged the Hearing Officer’s practice of copying and pasting passages from his own unrelated prior decisions, without attribution, into the Hearing Decisions. As set out in para. 21 of the OCPC Decision, Sergeant Gannon argued that passages copied and pasted into the Misconduct Decision (being two passages that Sergeant Gannon identified in his factum provided to the Commission) contained “facts that were materially different” than the facts of the matter before the Hearing Officer. He argued that when making his decision, the Hearing Officer “relied on those inapplicable facts.” As the Commission stated at para. 21, “[t]he implication is that the Hearing Officer did not put his mind to the issues and did not make a decision based on the evidence” before him.
[63] The Commission rejected those submissions, finding that the Hearing Officer did not make reversible errors in his use of passages from his previous decisions: OCPC Decision, at paras. 25-26, 30. In its analysis, the Commission cited the Supreme Court of Canada in Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, the leading case in this area.
[64] In Cojocaru, the Supreme Court considered the circumstances in which a decision should be set aside because the reasons incorporate materials from other unacknowledged sources. The concern raised in that case was that “the trial judge did not put his mind to the issues, the evidence and the law as he was sworn to do, but simply incorporated the plaintiffs’ submissions”: Cojocaru, at para. 10. At para. 13, the court noted that judges “are sworn to carry out their duties impartially and independently.” At para. 15, the court continued: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. This reflects the fact that the judge is sworn to deliver an impartial verdict between the parties, and serves the policy need for finality in judicial proceedings. [65] There is no dispute that administrative tribunals, as statutory decision makers, have corresponding duties and obligations. They also have the benefit of the same presumption of integrity and impartiality: see Ontario Provincial Police Commissioner v. MacDonald, 2009 ONCA 805, at paras. 41-44; Mulligan (No. 2) v. Ontario Provincial Police, 2018 ONCPC 5, at para. 30.
[66] In Cojocaru, at para. 22, the Supreme Court set out the framework that applies when a decision is challenged for failure to decide a case in accordance with the decision maker’s sworn duties:The basic framework for assessing a claim that the judge failed to decide the case independently and impartially may be summarized as follows. The claim is procedural, focussing on whether the litigant's right to an impartial and independent trial of the issues has been violated. There is a presumption of judicial integrity and impartiality. It is a high presumption, not easily displaced. The onus is on the person challenging the judgment to rebut the presumption with cogent evidence showing that a reasonable person apprised of all the relevant circumstances would conclude that the judge failed to come to grips with the issues and decide them impartially and independently. [67] In Cojocaru, at paras. 37-48, the court went on to consider previous caselaw in Canada and elsewhere regarding the permissibility of judicial copying. At para. 42, the court noted that previous cases in Canada “support the view that copying does not in itself establish procedural unfairness, and that the question is whether the copying shows that the trial judge did not consider the evidence and issues and render an impartial, independent decision.” At para. 49, the court concluded:In summary, courts in Canada and elsewhere have held that copying in reasons for judgment is not, in itself, grounds for setting the judge's decision aside. However, if the incorporation of the material of others would lead a reasonable person apprised of all the relevant facts to conclude that the trial judge has not put his or her mind to the issues and made an independent decision based on the evidence and the law, the presumption of judicial integrity is rebutted and the decision may be set aside. Applicant’s position on judicial review
[68] Before this court, Sergeant Gannon submits that the Commission erred in its treatment of the Hearing Officer’s use of precedents in the Hearing Decisions. He repeats his position that was before the Commission that the Hearing Officer erred in copying and pasting passages from his own unrelated decisions without attribution into the Hearing Decisions. He disputes the Commission’s conclusion that the passages copied into the Misconduct Decision did not result in significant errors that called into question whether the Hearing Officer made an independent and impartial decision. He also faults the Commission for considering only the passages that were copied into the Misconduct Decision and failing to also consider passages he identified that were copied and pasted into the Penalty Decision.
[69] Applying the principles set out in Cojocaru, Sergeant Gannon submits that a reasonable person, apprised of all the relevant facts, including the Hearing Officer's rampant pattern of copying and pasting passages from his unrelated decisions into the Hearing Decisions, would conclude that the Hearing Officer had not put his mind to the evidence and the issues, and had not made an independent, impartial decision based on the evidence and the law.
Discussion and conclusion
[70] As set out in Cojocaru, it is not improper for a decision maker to include language from applicable precedents, the decision maker’s own previous decisions. Decisions by statutory decision makers have the benefit of a strong presumption of integrity and impartiality. The party seeking to set aside a decision because the reasons incorporated material without attribution bears the burden of showing that that strong presumption is rebutted. Sergeant Gannon has not met that burden. . R. v. J.B.
In R. v. J.B. (Ont CA, 2023) the Court of Appeal (Lauwers JA) repeats his summary of bail pending appeal law from R. v. Allen (Ont CA, 2023). Some have criticized me (and others) for 'self-plagiarism' when I repeat the same text for the same purpose. I cite this as authority for the proposition that the concept of 'self-plagiarism' is an ill-founded one:B. THE GOVERNING PRINCIPLES for Bail pending appeal
[4] For bail pending conviction appeal, the applicant must establish the three elements set out in s. 679(3) of the Criminal Code: (1) that the appeal or application for leave to appeal is not frivolous; (2) that he will surrender himself into custody in accordance with the terms of the order; and (3) that his detention is not necessary in the public interest.
[5] The Crown submits that the applicant should remain incarcerated on the third ground: that his detention is necessary in the public interest on the basis of public confidence in the administration of justice.
[6] As the Supreme Court observed in R. v. Oland, 2017 SCC 17, [2017] 1 S.C.R. 250, at paras. 23-26, the public interest element must be tested under the framework set out by this court in R. v. Farinacci (1993), 86 C.C.C. (3d) 32, [1993] O.J. No. 2627, 1993 CanLII 3385 (C.A.), per Arbour J.A. (as she then was). I am obliged to weigh the factors of reviewability and enforceability. As Arbour J.A. said in Farinacci, at paras. 41-43:The concerns reflecting public interest, as expressed in the case-law, relate both to the protection and safety of the public and to the need to maintain a balance between the competing dictates of enforceability and reviewability. It is the need to maintain that balance which is expressed by reference to the public image of the criminal law, or the public confidence in the administration of justice. The "public interest" criterion in s. 679(3)(c) of the Code requires a judicial assessment of the need to review the conviction leading to imprisonment, in which case execution of the sentence may have to be temporarily suspended, and the need to respect the general rule of immediate enforceability of judgments.
Public confidence in the administration of justice requires that judgments be enforced. The public interest may require that a person convicted of a very serious offence, particularly a repeat offender who is advancing grounds of appeal that are arguable but weak, be denied bail. In such a case, the grounds favouring enforceability need not yield to the grounds favouring reviewability.
On the other hand, public confidence in the administration of justice requires that judgments be reviewed and that errors, if any, be corrected. This is particularly so in the criminal field where liberty is at stake. Public confidence would be shaken, in my view, if a youthful first offender, sentenced to a few months' imprisonment for a property offence, was compelled to serve his or her entire sentence before having an opportunity to challenge the conviction on appeal. Assuming that the requirements of s. 679(3)(a) and (b) of the Criminal Code are met, entitlement to bail is strongest when denial of bail would render the appeal nugatory, for all practical purposes. [7] In Oland, Moldaver J. reflected on Farinacci and added analytical details. He noted, at paras. 31-32, that an appeal judge considering an application for bail pending appeal should consider the factors stipulated for bail pending trial by s. 515(10)(c) of the Criminal Code, with necessary modifications to account for the fact that the presumption of innocence has been displaced by the conviction. The factors to be considered are: the apparent strength of the prosecution's case; the gravity of the offence; the circumstances surrounding the commission of the offence; and the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment. The onus of establishing that the applicant should not be detained in custody is reversed and placed on the applicant: Oland, at para. 35.
[8] Moldaver J. also considered the enforceability and reviewability interests and explained how, with appropriate modifications, the public confidence factors listed in s. 515(10)(c) are to be taken into account by the appeal judge in identifying the factors that make up the public confidence component in s. 679(3)(c).
[9] First, Moldaver J. noted at para. 37 of Oland, “[i]n considering the public confidence component under s. 679(3)(c), I see no reason why the seriousness of the crime for which a person has been convicted should not play an equal role in assessing the enforceability interest.” He added, at para. 38, that the appeal judge should have regard to the sentencing judge's reasons, and not repeat that evaluation afresh.
[10] Second, Moldaver J. considered the “reviewability interest,” which he identified, at para. 40, as being informed by “the strength of the prosecution's case (s. 515(10)(c)(i)).” On appeal, this “translates into the strength of the grounds of appeal ... [and] in assessing the reviewability interest, the strength of an appeal plays a central role.” Specifically, Moldaver J. endorsed the view expressed by my colleague Trotter J.A. in his article entitled, “Bail Pending Appeal: The Strength of the Appeal and the Public Interest Criterion” (2001), 45 C.R. (5th) 267 at p. 270, where he explained:Realistically, most cases do not raise strong claims regarding the public interest, at least not beyond the general concern that all criminal judgments ought to be enforced. ... However, when an offence is serious, as with murder cases, such that public concern about enforceability is ignited, there should be a more probing inquiry into the chances of success on appeal. It is in this context that the balancing required by Farinacci requires some assessment of the merits, separate from the question of whether the appeal is frivolous or not. [Footnotes omitted.] [11] Moldaver J. added, at para. 44 of Oland, that:In conducting a more pointed assessment of the strength of an appeal, appellate judges will examine the grounds identified in the notice of appeal with an eye to their general legal plausibility and their foundation in the record. For purposes of this assessment, they will look to see if the grounds of appeal clearly surpass the minimal standard required to meet the “not frivolous” criterion. [12] Having assessed the enforceability and reviewability factors, the appeal judge is required to balance them, keeping “in mind that public confidence is to be measured through the eyes of a reasonable member of the public”: Oland, at para. 47. Moldaver J. went on to add: “This person is someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society's fundamental values.” There is no precise formula, but a “qualitative and contextual assessment is required”: Oland, at para. 49. However, he observed, at para. 50: “where the applicant has been convicted of murder or some other very serious crime, the public interest in enforceability will be high and will often outweigh the reviewability interest, particularly where there are lingering public safety or flight concerns and/or the grounds of appeal appear to be weak” (citations omitted).
|
