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.
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
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.
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
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.
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
often it has or hasn't been used, is not a measure of its constitutionality,"
asked why the Ontario
government waited until more than four years after Cosgrove's initial ruling to
send an "undated letter" requesting an inquiry.
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
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.
Canadian Superior Courts Judges Association and Ontario Criminal Lawyers
Association (CLA) argued in support of Cosgrove.
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.
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.
reserved her decision.
70, has been on a paid leave since Bryant made the request for an inquiry.