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The price for being a good Judge or good Prosecutor

Editorial: December 2004

Paul Cosgrove

Ontario Supreme Court Justice Paul Cosgrove has been brought before the Canadian Judicial Counsel to account for himself. The complaint was brought against him by Ontario Attorney General Michael Bryant. Any complaint brought by a provincial attorney general is automatically heard.

It seems Michael Bryant has caved to complaints from his prosecutors about one particular case where Cosgrove threw out a murder charge because the police had violated the accused's rights over 150 times. It was a gruesome case where the Barbadian accused had allegedly cut off her lover's limbs and thrown them in the lake. So gruesome that the police felt empowered to start punishing her as soon as they found her. Cosgrove found the abuse of her charter rights was sufficient to put the administration of justice into disrepute if evidence gained by these methods was allowed.

The Ontario Crown took the case to the Ontario Court of Appeal which unanimously overturned Cosgrove's dismissal of the case and ordered a new trial. But the alleged murderess had fled to Barbados. The Ontario Appeal Court said Cosgrove had "debased the constitution" and Attorney General Bryant said he had "villified the state".

Apparently there were some other prosecutors who were displeased with Cosgrove's judgments against them.

Attorneys General from all provinces are invited to participate in these hearings which are in preliminary stages and for which final dates have not yet been set.

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It would seem that Justice Cosgrove viewed the justice system as a place of equality where even the most unpopular accused is entitled to a remedy for having their constitutional rights violated. It would seem that Attorney General Bryant shares the view of former Saskatchewan Associate Justice Minister Serge Kujawa that the justice system is "worth" more than one person. In our desire to lock up the bad guys and gals, are we willing to overlook police and prosecutorial abuse? Editorial: One would wonder if that opinion would change if that one person were a son or daughter?

There are definitely teams within the R.C.M.P. who count on the public having the attitude that we should just relax and let the cops do their jobs and not get too upset if they bend the rules a little. They have managed to put away a fair number of innocent people and close the files on crimes which are not really solved because of this attitude. Such zealous file-closers start by bending the rules a little and move on to bending them a lot. They develop strong bonds with like-minded prosecutors who help them cover their tracks.

Brian Dueck of the Saskatoon Police Service was just such a cop. There was a coterie of them with the SPC who, in their last months, before both Dueck and Wiks were suspended, went through some old major crime files, picked out some suspects who had already been investigated, and asked the mounties to investigate them again, with that special twist where it is okay to break all the rules. Wilfred Hathway was one. Farand Bear is possibly another. Jean Paul Aubee was caught in a highly questionable sting and his lawyer, Bill Roe failed to get evidence gained through charter violations thrown out.

Judge George Baynton's decision in the Klassen/Kvello lawsuit found that such police methods and prosecutorial collaboration are malicious. The Saskatchewan Attorney General is appealing this decision. He says that the integrity of his prosecutors is at stake. He really should step back and see whether the lack of integrity on the part of some of his prosecutors is in fact putting the integrity of his office into disrepute.

A police state does not happen overnight. We don't just wake up one morning and discover there are tanks in the street. Rather it happens bit by bit as police and prosecutors are allowed to violate the charter rights of individuals and groups. It happens through defence and civil lawyers get too chummy with crown and corporate lawyers. Gradually, a formerly prosperous and free population gets used to having less to the point where they are grateful they have anything at all and that the cops are not bashing down their doors. It happens when a woman who is so disturbed and deranged she chops up her lover and the cops, instead of protecting her, join the public bloodlust and tromp all over her rights. Those cops must be reigned in, not encouraged. It is up to the Attorney General, their ultimate boss, to explain to the public that a person will not be convicted of a crime they very likely committed because the police messed up. The police, who are pledged to serve and protect us, must be above the fray.

Danilo Anderson car bombed

Venezuela used to be a police state. Now it is a democracy. [2018: It is viewed that the former is now more appropriate] The United States government liked it better when it was a police state and engineered a coup against its democratically elected leader, Hugo Chavez. Chavez had strong support and was returned to power shortly after the constitution his government had proclaimed had been ripped up by the coup plotters. His first act was to restore that consititution. Then Chavez survived a huge referendum campaign to remove him from office (by people using democratic checks and balances from the very constitution they had wanted to rip up).

This month it was revealed that the Venezualan government had incontavertible evidence that the American government had played a large part in engineering and funding the coup attempt where several citizens were killed. Chavez set about to prosecute those who were responsible. Prosecutor Danilo Anderson was assigned many of the cases. He was killed by a car bomb.

This ongoing story is meant to illustrate just how difficult it is for a country to emerge from military or police control.

George Bush is visiting Canada. George "Dubya" Bush has been responsible for undermining democratic "norms" in the United States more than any president in living memory [2018: Today people would take him back in a heart beat] -- perhaps with the exception of Ronald Reagan who, I heard on TV during the month long funeral last June, had vowed to undo every piece of legislation passed during Franklin Roosevelt's "New Deal" period. [2018: One more time just different actors]

George Bush has certainly overseen the undoing of democratic reforms in many parts of the world.

I perfectly understand that when he said "dictatorships are fine as long as I'm the dictator" he was joking. He was also deflecting a serious question which is, of course, a skill at which he excels. I don't think it would be at all funny if Antonin Scalia became head of their Supreme Court.

To bring this back to where we started, I hope that the Canadian Judicial Counsel does not bow to the Ontario Attorney General. To can a judge for upholding the constitution would be a huge step backwards for democracy. It is good that we have in place a mechanism for removing from office judges who have clearly put the administration of justice into disrepute. Ruling against the Crown in a murder case hardly qualifies.

--Sheila Steele, November 28, 2004