Court trims provinces' powers over judges
Federal judge's ruling favours Paul Cosgrove

Janice Tibbetts
The Ottawa Citizen

October 28, 2005

Paul Cosgrove, a controversial Ontario Superior Court judge, has won a court challenge against the Ontario government that sought to bring him a before public inquiry that could have removed him from the bench.

CREDIT: Wayne Cuddington, The Ottawa Citizen
Judge Paul Cosgrove: On paid leave of absence.


The Federal Court of Canada this week ruled in favour of Judge Cosgrove, who had challenged the power of Ontario Attorney General Michael Bryant to bypass the normal investigation process when complaining to the Canadian Judicial Council.

"In order to ensure the integrity of the judiciary, it is essential that there be suitable mechanisms in place to ensure judges are held accountable when they misconduct themselves," Justice Anne Mactavish wrote in her ruling. "At the same time, the judiciary must remain independent in order that individual citizens can be confident that judicial decisions affecting them are arrived at, untainted by external influences."

The Federal Court's ruling effectively strips provincial politicians of their special power to force automatic public inquiries into judges' conduct that can ultimately remove them from the bench. More formally, the ruling halts a judicial council inquiry into Judge Cosgrove, a former federal Liberal cabinet minister, who sparked outrage with his 1999 decision to clear a Barbadian woman of first-degree murder in the death of Lawrence Foster, whose body parts were found floating in the Rideau River near his Kemptville home in 1995.

Judge Cosgrove freed Julia Yvonne Elliott after ruling that police and prosecutors committed more than 150 Charter of Rights breaches against her.

Judge Mactavish concluded the attorneys general did not present a convincing case as to why they are above the normal complaints procedure. She did not extend the ruling to strip the federal justice minister of the same power, saying that issue should be left for another case.

Judge Cosgrove's lawyer, Chris Paliere, had argued a complaint by an attorney general should be treated the same as one from any member of the public, and reviewed by the council to determine if it merits investigation.

Mr. Paliere said the power of attorneys general to force automatic inquiries could have a "chilling effect" on judges who fear their jobs could be on the line if they rule against the government. "The attorney general has been prevented from jumping the queue," Mr. Paliere said. "If it's a serious enough case, it will percolate its way through the process."

Lawyers for the attorney general argued Mr. Bryant was acting as "a guardian of the public interest." Mr. Bryant's complaint was based on a December 2003 Ontario Court of Appeal decision that overturned Judge Cosgrove's stay of charges against Ms. Elliott. The appeal court concluded "there was no factual basis" for his findings and that he had "misused his power." The appeal court also ordered a retrial for Ms. Elliott, which is pending.

Judge Cosgrove has been on a paid leave of absence since Mr. Bryant sent a letter in April 2004 to the Canadian Judicial Council requesting a disciplinary hearing. The council can ultimately recommend to Parliament that a judge be removed from the bench, although this has only occurred six times since Confederation. The disciplinary hearing was halted when Judge Cosgrove challenged the political power in court.

The Canadian Superior Courts Judges Association and the Ontario Criminal Lawyers' Association supported Judge Cosgrove.
© The Ottawa Citizen 2005