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Fed appoint first aboriginal
appeal court judge: Harry LaForme
| Bryant wants to let media
in: Embedded reporters?
Apparently in Ontario, prosecutors
don't think it is fair that judges should hold them to respecting
Charter Rights or Stinchcombe
| Photo of Cosgrove is from 1984. Mr.
Justice Peter Cory
Judge Paul
Cosgrove
- Judge seeks to derail
hearing
- Process infringes
on independence of bench, Cosgrove tells judicial council
By KIRK MAKIN, JUSTICE
REPORTER, Globe and Mail, Nov 24, 2004
A beleaguered Ontario judge
who caused a furor by acquitting in 1999 a woman accused of murder
is attempting to strike down a public probe into his conduct
and fitness to stay on the bench.
Mr. Justice Paul Cosgrove of
the Ontario Supreme Court argues in a brief to the Canadian Judicial
Council that a public hearing next month into his case -- something
that is automatically triggered when a federal or provincial
attorney-general complains about judicial conduct -- is unconstitutional
and destructive to judicial independence.
He says that the process fosters
a dangerous impression that judges can be punished for making
controversial rulings, as he did in the murder trial of Julia
Yvonne Elliott.
"It creates a 'chilling
effect' that will undermine the ability of judges to adjudicate
fearlessly cases, as justice requires," Judge Cosgrove's
lawyer, Chris Paliare, says in a brief that includes affidavits
from his client and a fellow judge. "This chilling effect
undermines and is wholly inconsistent with judicial independence."
The brief is Judge Cosgrove's
first response to an April 22, 2004, complaint from Ontario Attorney-General
Michael Bryant that he is unfit to be a judge. The complaint
accuses Judge Cosgrove of presiding over an unseemly procedural
nightmare, which sullied reputations and "vilified the state."
The judge, a onetime federal
Liberal cabinet minister who was appointed to the bench in 1984,
presided over a 22-month trial that ended in Ms. Elliott's acquittal.
He found that the Crown and police had committed 150 constitutional
violations.
His findings were universally
rejected last fall by the Ontario Court of Appeal. In a scathing
judgment, it ordered a new trial for the 35-year-old Barbadian
woman.
Shortly after the complaint
was lodged, Judge Cosgrove ceased hearing cases, and he remains
in judicial limbo until his hearing, which begins on Dec. 8.
He warns in his affidavit that
judges may become afraid to criticize or rule against the Crown
if they think a vindictive attorney-general could in effect end
their careers simply by lodging a complaint. The consequences
are so negative that the process in effect permits an attorney-general
to become "the judge in his own cause," he says.
In a supporting affidavit,
Mr. Justice James Chadwick of the Ontario Superior Court endorses
his colleague's concern about the erosion of judicial autonomy
and impartiality.
"The clear message is
that if a judge decides a case or treats the Attorney-General
in a manner that the Attorney-General considers to be unsatisfactory,
then the judge may be facing a very public examination of his
or her actions," Judge Chadwick says.
Mr. Paliare said there is no
valid reason that complaints from attorneys-general cannot proceed
through the same three-stage review process that all other complaints
go through before a public hearing is called.
"This power gives the
Attorney-General the unilateral ability to 'sideline' a judge
while the inquiry is ongoing, and to impair his or her ability
to return to active duty," Mr. Paliare wrote.
The judicial council created
its disciplinary procedure in 1971. Since then, only 12 complaints
have gone all the way to inquiries. Half of them stemmed from
complaints by attorneys-general. The council ultimately makes
a recommendation to the justice minister on how to proceed.
The final stage of the process
-- a vote by Parliament on whether to remove a judge -- never
has occurred, as several of the judges resigned while the procedure
was in progress.
Crown accuses judge of
`vilifying state'
Inquiry looks into justice's actions
Charges
against killer were stayed
TRACEY TYLER, LEGAL AFFAIRS
REPORTER, The Toronto Star, Nov. 24, 2004
A public inquiry into an Ontario
judge's handling of a murder trial is turning into an unprecedented
showdown over the ability of judges to do their jobs free of
government pressure.
At the centre of the case is
Justice Paul Cosgrove, who is accused by Attorney-General Michael
Bryant - in documents made public yesterday - of "vilifying
the state" in the case of Julia Elliott. She was tried for
killing and dismembering her ex-lover.
Cosgrove stayed the charges
in 1999 and freed Elliott, citing over 150 violations of her
Charter rights. He also ordered legal costs against the Crown.
But in a harshly worded ruling overturning that decision last
December, the Ontario Court of Appeal said Cosgrove's numerous
findings of misconduct were largely unwarranted and that he had
effectively debased the Charter.
The appeal court also questioned
his fairness toward the Crown in two other rulings in 1997.
A letter from Bryant to the
Canadian Judicial Council automatically triggered an inquiry
and Cosgrove, a former Scarborough mayor and federal Liberal
cabinet minister, faces the possibility of removal from the Superior
Court bench.
But the case is quickly becoming
a battleground for other issues, including the protection of
judicial independence and the limits of a judge's constitutionally
protected right to freedom of expression.
Cosgrove and other federally
appointed judges contend the extraordinary power Bryant and his
fellow attorneys-general have to force such an inquiry creates
a "chilling effect" on judges, who could legitimately
worry their careers may be on the line if they rule against the
Crown.
"In my view, the ability
of the attorney-general to initiate a public inquiry against
a judge in a case like this is very likely to send a strong signal
to judges across Ontario, perhaps across Canada," James
Chadwick, a retired Superior Court judge from Ottawa, said in
an affidavit filed with the Canadian Judicial Council and released
yesterday.
"The clear message is
that if a judge decides a case or treats the attorney-general
in a manner that the attorney-general considers to be unsatisfactory,
then the judge may be facing a very public examination of his
or her actions.
"Given the serious consequences
that a public inquiry entails, there is a very real prospect
that judges will hesitate before acting in a fashion that will
engage the attention of the attorney-general."
Chadwick's affidavit is contained
in material filed with the council by Cosgrove's lawyers, Chris
Paliare and Richard Stephenson. At a two-day hearing next month,
they plan to attack the constitutionality of the process that
triggered the inquiry - what they call the attorney-general's
unilateral power to "sideline a judge."
If any other Canadian makes
a complaint about a federally appointed judge, it goes through
a three-step screening process to determine if further action
is warranted. Lorne Sossin, a University of Toronto law professor
and expert in constitutional law and judicial process, said the
Cosgrove inquiry is "a hard case on the facts" because
it deals with the merit's of a judge's decision, rather than
the more typical complaint involving inappropriate comments by
a judge in court.
Ultimately, Cosgrove's constitutional
rights come down to whether he can get a fair hearing at an inquiry,
Sossin said.
In his first public comment
since the inquiry was called last spring, Cosgrove said that
even if he is exonerated he fears he may never be able to recover
his reputation and return to the bench. Cosgrove, 69, agreed
after the inquiry was called to stop hearing cases.
"I am concerned that the
damage to my reputation caused by the publicity surrounding the
announcement of this inquiry will be compounded many times over
by the publicity that is likely to accompany any hearing,"
he said in an affidavit. "It is my expectation that the
sensationalism of the story of a `murderer' having been `set
free' will inevitably drown out the less dramatic but essential
principles that underlie the concepts of judicial independence."
He said he is also concerned
about the spectre of having to testify about his judicial "thought
processes" in the case.
In the four years between the
time he stayed the charges against Elliott in Sept. 1999 and
the Court of Appeal's ruling last December, Cosgrove said, no
crown had ever expressed concerns he would not be able to judge
a case impartially or asked him to recuse himself from a case.
Judge's 'misuse' of power
prompts inquiry
His ruling freed woman accused of killing, dismembering Kemptville
ex-lover
Janice Tibbetts, The Ottawa
Citizen, April 28, 2004
A bizarre homicide saga took
a rare turn yesterday when the council that polices the judiciary
said it will conduct an inquiry into the judge in the case after
receiving a complaint from Ontario's attorney general.
The Canadian Judicial Council
probe into Superior Court Justice Paul Cosgrove is being launched
after the Ontario Court of Appeal accused him of making numerous
legal errors and misunderstanding the Charter of Rights when
he freed a woman from Barbados accused of murdering and dismembering
her former lover while vacationing in Canada.
Two fishermen discovered 64-year-old
Lawrence Foster's thighs floating in the Ottawa River near his
Kemptville home in August 1995. Police then recovered his head,
arms, hands, lower legs and feet.
In a case that has been condemned
as a justice system fiasco, Judge Cosgrove concluded in 1999
that the charges against Julia Yvonne Elliott should be stayed
on the grounds her right to a fair and speedy trial had been
violated.
However, the Ontario Court
of Appeal overturned the stay in December 2003, saying "there
was no factual basis" for Judge Cosgrove's findings and
that he had "misused his power."
The appeal court ordered a
retrial for Ms. Elliott, who returned to her native Barbados
after she was freed. She was arrested last month in Costa Rica
"for extradition purposes," said a Justice Department
spokeswoman.
No date has been set for her
extradition.
The Canadian Judicial Council
has the power to recommend to Parliament that a judge be removed
from the bench. The council, composed of Canada's most senior
judges, has made the recommendation only half a dozen times since
Confederation, but the judges either died or resigned before
they were fired.
The normal course of action
is to conclude that a judge did nothing wrong or at most issue
a public rebuke or order sensitivity training.
This case is unusual because
the complaint against Judge Cosgrove came from Ontario Attorney
General Michael Bryant instead of a member of the public, meaning
the judicial council
is required under the Judges
Act to hold an inquiry.
"What the attorney general
is saying is that his conduct was inappropriate during the trial,"
said Norman Sabourin, council executive director. He said the
attorney general referred to the court of appeal decision as
a basis for the complaint.
Brendan Crawley, a spokesman
for the attorney general, would not comment, and it was not known
whether Judge Cosgrove will continue sitting on the bench while
the inquiry proceeds.
The appeal court ruled the
judge made numerous legal errors in accepting the defence's "unwarranted
and unsubstantiated" accusations of Crown and police misconduct.
The accusations included tunnel vision on the part of the lead
investigator, inaccurate and misleading testimony by police officers,
failure of investigators and the Crown to submit various items
of evidence for testing and the deliberate destruction of an
original handwritten draft case synopsis.
The Ontario Court of Appeal
concluded "there was no factual basis for the findings"
and "the trial judge misapprehended the evidence."
The three-judge appeal panel
said the judge had "misused his power" and allowed
investigations into matters that were extraneous to the real
issues.
Mr. Foster, a retired auto
mechanic, met Ms. Elliott while on vacation in Barbados in 1993.
Before Judge Cosgrove halted the trial, testimony revealed that
soon after Mr. Foster's death, Ms. Elliott used his credit card
for cash advances and packed up his stereo, microwave, camera
and hair dryer to send to her home in Barbados.
© The Ottawa Citizen 2004
A crime is a crime
Many people support tougher punishment for crimes that are motivated
by hatred of identifiable groups. But as understandable as it
may be to support hate crime laws, it is a mistake.
Judge will be suspended
until inquiry is finished
Jake Rupert, The Ottawa
Citizen, April 29, 2004
Brockville Ontario Superior
Court Justice Paul Cosgrove, who faces an inquiry over his conduct
during a murder trial he ordered stopped, will not hear cases
until the matter is resolved, his boss said yesterday.
Eastern Ontario's senior Superior
Court justice, Monique Metivier, said Judge Cosgrove's suspension
is a matter of course while the Canadian Judicial Council conducts
its inquiry.
"He won't be sitting or
assigned until this matter is resolved," Judge Metivier
said. "It's just an appropriate thing to do in view of the
inquiry."
Judge Cosgrove's son said his
father did not want to comment on the inquiry or the case until
he consults with a lawyer.
Earlier this week, the council,
which oversees all federally appointed judges, announced it would
be holding an inquiry into the judge's actions during the murder
trial of Julia Yvonne Elliott for the 1995 killing of Larry Foster,
64, of Kemptville.
Late last week, the council
received a request for an inquiry from Ontario Attorney General
Michael Bryant, whose ministry includes the Crown attorneys who
prosecuted Ms. Elliott. Under council rules, when a provincial
or territorial attorney general requests an inquiry, it must
be held.
Earlier this week, the council,
which oversees all federally appointed judges, announced it would
be holding an inquiry into the judge's actions during the murder
trial of Julia Yvonne Elliott for the 1995 killing of Larry Foster,
64, of Kemptville.
Late last week, the council
received a request for an inquiry from Ontario Attorney General
Michael Bryant, whose ministry includes the Crown attorneys who
prosecuted Ms. Elliot. Under council rules, when a provincial
or territorial attorney general requests an inquiry, it must
be held.
In 1999, after a series of
motions by Ms. Elliott's defence lawyer, Kevin Murphy, Judge
Cosgrove found the accused's Charter rights to a fair and speedy
trial had been seriously breached by police investigators and
prosecutors, and ordered the case stopped.
Ms. Elliott went back to her
native Barbados, and the Crown launched an appeal of the judge's
ruling alleging the judge was biased and incompetent.
Last fall, the Ontario Court
of Appeal overturned Judge Cosgrove's stay ruling and ordered
a new trial. The appeal court panel of three judges found "there
was no factual basis" for Judge Cosgrove to stay proceedings
against Ms. Elliott and that he had "misused his power"
in several instances.
After the ruling, Ms. Elliott
fled Barbados and was arrested in Costa Rica in the winter. She
is being held in jail awaiting extradition back to Canada to
face a new trial.
Ms. Elliot was charged after
Mr. Foster's remains were found along the banks of the Rideau
River near Kemptville in August 1995.
After an inquiry, the council
has the power to recommend to Parliament that a judge be removed
from the bench. This has only happened six times in Canada's
history and those judges either quit or resigned before being
fired. Most complaints are dismissed or the judges receive lesser
penalties.
Officials at the council say
the inquiry will take place in four to six months.
© The Ottawa Citizen 2004
Prosecutor Alan Findlay,
who prosecuted the Elliot case, appeared before Judge Cosgrove
at least twice since the staying of charges in Elliot. He did
not ask Judge Cosgrove to recuse himself.
pdf files available on CJC site
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Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
