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Cosgrove asks Federal Court to strike provisions

|Written By Shannon Kari - For Law Times

AFederal Court judge has been asked to strike down a provision of the Judges Actin a second attempt by Superior Court Justice Paul Cosgrove to avoid a CanadianJudicial Council disciplinary inquiry.

Section 63(1) of the act grants provincial attorneys general the right to order an inquiry into the conduct of Superior Court judges, which could lead to their removal from the bench. Complaints by any other citizen are screened by the judicial council.

The provision was described as unconstitutional and an attack on judicial independence by Cosgrove's lawyer Chris Paliare, during a two-day Federal Court hearing that began Aug. 29 before Justice Anne Mactavish.

The hearing is a judicial review of a decision last December by a special panel of the judicial council. The panel, chaired by British Columbia Chief Justice Lance Finch, upheld the section. It noted that the power is restricted to "only the most serious cases" and it is unlikely an attorney general will "resort to it lightly."

Ontario Attorney General Michael Bryant sent a letter to the council in April 2004, requesting an inquiry as a result of a 1999 ruling by Cosgrove in which he stayed murder charges in a notorious Ottawa case. The veteran judge made numerous findings of misconduct against police and the Crown that were overturned by the Court of Appeal in 2003. It ordered a new trial and sharply criticized Cosgrove.

Paliare argued the judicial council panel erred in finding that the special power was not an infringement on judicial independence because it had never previously been invoked by the Ontario government.

"How often it has or hasn't been used, is not a measure of its constitutionality," said Paliare.

He asked why the Ontario government waited until more than four years after Cosgrove's initial ruling to send an "undated letter" requesting an inquiry.

"The letter is undated. Was it sitting in his drawer, waiting for something to happen," said Paliare, who suggested that Bryant had motives other than the "public interest."

Zachary Green, a lawyer representing the Ontario Ministry of the Attorney General, said "the timing of the request is irrelevant to this proceeding." Green added that it was "entirely appropriate" to wait for the Court of Appeal ruling before requesting that Cosgrove face an inquiry.

The Canadian Superior Courts Judges Association and Ontario Criminal Lawyers Association (CLA) argued in support of Cosgrove.

"What is the need for a special power," asked John Eamon, a Calgary lawyer representing the judges' association. He said attorneys general can still file complaints under s. 63(2) of the act, which are subject to the pre-screening process.

The act gives an attorney general "the power to affect or appear to affect the judicial decision maker, before whom the attorney general litigates. My clients have no such power," noted Alan Gold, who appeared on behalf of the CLA.

Mactavish reserved her decision.

Cosgrove, 70, has been on a paid leave since Bryant made the request for an inquiry.

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