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Veteran judge faces removal

|Written By Robert Todd

Ontario Superior Court Justice Paul Cosgrove should have handled a 1997 murder case differently, but without the benefit of hindsight and facing an “extraordinary” set of circumstances did the best he could on a matter he was unprepared for, says his lawyer.

Justice Paul Cosgrove is battling a complaint lodged by former attorney general Michael Bryant.

In an opening statement at a Canadian Judicial Council inquiry last week, lawyer Chris Paliare argued that the 24-year veteran judge was ill-equipped to deal with the 1997 R. v. Elliott murder trial. Cosgrove stayed proceedings in the high-profile case in 1999, citing what he considered over 150 Charter breaches by the Crown and police, including unreasonable delays.

Paliare said Cosgrove “recognized that he made mistakes, and in retrospect he could have handled differently many of the situations he faced.”

The Ontario Court of Appeal overturned Cosgrove’s ruling in Elliott in December 2003, ordering a new trial, at which Julia Elliott pleaded guilty to manslaughter and received a seven-year sentence.

In April 2004, then-Ontario attorney general Michael Bryant requested a CJC inquiry into Cosgrove, alleging his conduct on the case hurt public trust in the administration of justice.

The accusations Cosgrove faces are unlike most of the eight other CJC inquiries since 1990 into the conduct of judges, said Paliare. The 73-year-old judge and former federal and municipal politician is not accused of uttering insensitive remarks, committing a criminal act, sitting on a case in conflict of interest, or hearing a case while drunk.

Rather, the committee must ponder what went into a series of judicial decisions Cosgrove made during the two-year criminal trial, suggested Paliare.

Judges are answerable only to their own consciences and appeal courts, he said.

Paliare said Cosgrove admits nothing in his career could have prepared him for the Elliott case. He noted that the judge would have benefited from subsequent decisions from appeal courts on improper stays of proceedings.

Paliare said there is no evidence that Cosgrove’s decisions in the case were made in bad faith. He said the judge was forced to make a series of “novel and complex” rulings on the “extraordinary” case, and has expressed sympathy for the victim’s family.

Paliare also criticized the Ministry of the Attorney General for filing its complaint some four and a half years after Cosgrove ordered the stay of proceedings. Paliare noted that the ministry never issued a complaint about Cosgrove hearing cases involving the ministry from the time the stay was ordered to the filing of the complaint.

Paliare asserted that the only evidence the committee should consider in its investigation is a transcript of the Elliott case.

“Otherwise it’s unfair, because he didn’t have the Court of Appeal benefit of hindsight,” he said, adding that materials such as the Court of Appeal ruling and ethical guidelines for judges have no relevance.

The appeal court said Cosgrove “made numerous legal errors as to the application of the Charter,” as well as issuing “findings of misconduct against Crown counsel and police officers that were unwarranted and unsubstantiated.”

Independent counsel to the inquiry Earl Cherniak said the Court of Appeal ruling must be included in evidence, as it’s referenced in the attorney general’s complaint letter.

After an objection from Paliare, British Columbia Chief Justice Lance Finch, chairman of the committee, allowed the appeal decision as evidence. He said the committee will later decide what weight to give it.

Paliare also objected to Finch’s decision to allow information regarding other cases Cosgrove heard in which the AG alleges the judge showed hostility toward the Crown.

That prompted an outburst from Paliare, who suggested the inquiry was adopting a “shovel theory of evidence.”

Paliare asked, “How am I supposed to defend this case?” adding, “This can’t be part of the process.” Paliare said Cosgrove dealt with “hundreds” of cases involving the Crown, and suggested he be allowed to present all of them as evidence.

“The cases are simply a fact,” said Cherniak, adding they may be relevant in terms of the accusation that Cosgrove adopted a suspicious attitude toward the Crown and government agencies.

Cosgrove had worked to prevent the inquiry committee from continuing. The committee stopped in 2005 when the judge challenged the constitutionality of s. 63(1) of the Judges Act, which permits a provincial attorney general to request an inquiry into the conduct of a judge without an initial screening by the CJC.

The Federal Court agreed with Cosgrove’s position and ruled the law unconstitutional in 2005. But a Federal Court of Appeal decision last year overturned the lower court’s decision, backing the attorney general of Canada’s position.

The Supreme Court of Canada dismissed Cosgrove’s application for leave to appeal in November 2007.

Cosgrove then applied to the Federal Court for judicial review after the CJC inquiry committee ruled in May that it would wait until the inquiry got underway to hear a motion from Paliare.

The motion, according to the Federal Court decision, stated that the conduct alleged against Cosgrove “is not capable of supporting a finding of judicial misconduct within the meaning of the Judges Act,” and that “the committee should decline to proceed with the inquiry.”

The court dismissed that application for judicial review in August.

Cosgrove - who Paliare described as a “judicial workhorse” - is set to retire from the judiciary in December 2009. Paliare said the judge hopes to continue working as a judge until then, adding, “It defines his life.”

The CJC inquiry committee is made up of Finch, Chief Justice of Nova Scotia Michael MacDonald, Chief Justice of the Court of Queen’s Bench of Alberta Allan Wachowich, McCarthy Tétrault LLP Ontario regional managing partner Kirby Chown, and Ottawa’s Nelligan O’Brien Payne LLP founding partner John Nelligan.

The inquiry is to wrap up no later than Sept. 17. Once the committee finishes its investigation, it will report to the CJC. The council will use that information to consider whether or not to issue a recommendation to the federal minister of justice that Cosgrove be removed from office. It would then take a joint resolution of Parliament for the judge to be ousted.

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