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Apparently, prosecutors don't think it is fair that judges should hold them to respecting Charter Rights or Stinchcombe

Judge Paul Cosgrove

Judge seeks to derail hearing
Process infringes on independence of bench, Cosgrove tells judicial council

Judge Paul Cosgrove

Photo of Paul Cosgrove is from 1984

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

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

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.

Judge will be suspended until inquiry is finished

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.

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.

On April 2, 2009, Paul Cosgrove resigned from the bench. If he had not done so, and had also not taken the option of making an application to the Federal Court for a judicial review of the finding, the House of Commons and Senate would have had to vote on whether to remove him from office.