April Fool’s, Justice Cosgrove! Clean Out Your Desk.

The Canadian Judicial Council released its report yesterday that Justice Paul Cosgrove “failed in the execution of the duties of his judicial office” and recommended that Parliament strip him of his position as superior court judge.

In spite of Cosgrove’s public apology for the debacle, and repudiation of his own ruling, the CJC report noted that “public confidence in his ability to discharge [his judicial] duties in future has been irrevocably lost.”

The recommendation related to Cosgrove’s conduct while presiding over the first-degree murder trial of Julia Elliott in 1997. Cosgrove found that police and Crown officials violated the Charter rights of the accused on over 150 occasions, and ordered her release. In 2003, the Ontario Court of Appeal ruled that Cosgrove J.’s findings were without merit and ordered Elliott to be retried. She pleaded guilty in 2005. Attorney General Michael Bryant complained to the CJC thereafter.

The CJC canvassed the misconduct giving rise to the ruling of abuse of process, which included:

  • giving rise to an apprehension of bias;
  • repeated and unwarranted interference in the activities of the Crown and the RCMP;
  • unfounded threats of arrest or citation for contempt;
  • rude, abusive or intemperate language; and
  • arbitrarily suppressing a federal immigration warrant.

The disgraced judge’s fate now lies with federal Justice Minister Rob Nicholson and his recommendation to Parliament.

In December, Cosgrove will turn 75, the age when judges are required to retire. Should Parliament break with longstanding tradition and take swift action against him before then, Cosgrove stands to lose his $170,000 annual pension.

Cosgrove sat on the bench for 25 years. Prior to his appointment in 1984, he served as public works commissioner and as the mayor of Scarborough.

This would mark the first time Parliament has removed a judge from office. In 1996, Justice Jean Bienvenue narrowly avoided that honour by resigning before the axe could fall.

Chances to kick a superior court judge while he’s down come seldom, and Law is Cool would hate to pass up that chance in favour of cultivating such a fleeting virtue as decorum — why, if the undoing of Cosgrove J. has taught us anything, it’s that 25 years of decorum can be dashed by a mere 150 unfounded determinations of police misconduct. As such, the following are some helpful suggestions to sitting judges, derived from Cosgrove J.’s ongoing misfortune:

  1. So your peers in the Canadian judiciary say your ruling undermined confidence in the justice system; discretion is the better part of valour! Apologize early and often.
  2. When levying baseless threats and accusations of misconduct against the police and Crown, ask yourself: how much is too much?
  3. It is never too late to cultivate a personal relationship with the Attorney General. After all, political connections got you the job in the first place!

Update, April 3rd: Justice Cosgrove has tendered his resignation, effective immediately.

7 Comments on "April Fool’s, Justice Cosgrove! Clean Out Your Desk."

  1. This is really not funny.

    First of all, nowhere does the Ontario Court of Appeal say that Cosgrove’s decision constituted an “abuse of process.”

    Read the Court of Appeal’s decision. On my reading, Cosgrove, at worst, misapprehended the evidence and came to the wrong conclusions. He probably made those errors in good faith.

    It seems to me the real culprit was Elliott’s defense counsel. Counsel repeatedly advanced a view that there was some kind of conspiracy against his client that ran from the police all the way through to the Attorney General’s office. This view was based on weak and circumstantial evidence (not a complete lack of evidence). It should not have been accepted by the trial judge.

    The judge, in good faith, but incorrectly, believed defence counsel’s submission that there was a conspiracy. He then essentially gave too much leeway to the defence, which ran amok with its theories.

    To say that Cosgrove abused his position is going too far. To say that he should be removed, I think, goes waaaay too far.

    This entire Elliott fiasco, far from being funny, is actually very disturbing.

    The judge is being recommended for removal because of the “damage done to public confidence by virtue of the judge’s judicial misconduct.” In other words, the central issue is what the public thinks of his decision in the Elliott case. Basically, a judge is being removed from office because of the outrage over his staying of proceedings against an accused murderer. But he stayed those proceedings in the honest but mistaken belief that there was a conspiracy against the accused. Think about that for a second, and the implications it has for the independence of our judiciary.

  2. You’re absolutely right, the OCA didn’t label Cosgrove J.’s behaviour an abuse of process. The Inquiry Committee subsequently called it an “abuse of judicial powers”, a semantically crucial distinction. The error stems from my misreading of an article in yesterday’s Globe: http://www.theglobeandmail.com/servlet/story/RTGAM.20090331.wcosgrove0331/BNStory/National/home

    As to Cosgrove’s good-faith belief in a conspiracy against the accused, it’s indeed commendable that he was willing to pursue all avenues before sending a potentially innocent person to jail. But his behaviour went well beyond the principled discharge of his judicial duties. He was prey to the same “tunnel vision” he accused the police of having; he acquitted the accused in his own mind and aligned himself accordingly for the duration of proceedings.

    And it is funny. A lot funnier than a woman who cut a man into bits and buried him all over town escaping justice because of wildly out-of-control judicial intervention, no matter the good faith involved.

    That being said, it does seem to me unduly vindictive to fire the man six months before he’s set to retire, for a mistake he made ten years ago — albeit a bad mistake, and one he clung to doggedly for years after, until the evidence to the contrary could no longer be ignored.

  3. Karen Hutchison | April 2, 2009 at 5:06 pm |

    Justice Cosgrove found that the police and Crown had made 150 Charter violations. Even one violation is a serious matter. The fact these accusations were expressly found to be without merit demonstrates that Cosgrove was abusing his position, and misusing the Charter itself. The document is supposed to protect the disenfranchised from the enforcement arm of the state. It is not supposed to create an independent barrier to prosecution, devoid of any justification. We have a “beyond-a-reasonable-doubt” standard for criminal prosecution which the Crown must meet. Cosgrove unilaterally imposed a perfection standard on both the Crown and the police, standing firmly in the way of justice.
    In the United States, many judges are elected. Those that demonstrate an inability to discern a defence attorney’s desperate flailing from actual abuses of state power are doomed to serve short terms. In Canada, thank goodness, the judiciary is nowhere subject to the whims of the fickle public. However, we would do well to remember our fundamental democratic values. This is not a judicial oligarchy. There must be consequences for judges that commit a certain level of misconduct, or demonstrate significant performance failures, as Cosgrove so obviously has here. That the Canadian Judicial Council has chosen to take such an unprecedented step as to remove him from the bench is a welcome indication that judicial performance matters in this country. That Cosgrove has mere months left to serve is entirely irrelevant. His alleged “good faith,” itself a debatable element considering the sheer volume of accusations levelled against the prosecution, is irrelevant as well. Cosgrove utterly failed in his duties. The citizens of Canada do not have to settle for such inadequate performance, and they will not.
    Far from destroying the independence of the judiciary, this development represents a restoration of the balance between our separate powers. The judiciary is independent, not dominant. Cosgrove’s removal is entirely legal, strictly proper, and long overdue.

    Finally, the article was funny. Objectively so. Launching a tirade with “This is really not funny” demonstrates nothing so much as the author’s lack of a sense of humour. Such an inflammatory tone would be more at home on the Hobbesian comment boards of CBC news article. That it should be levelled by one contributor at a contemporary on the same blog is, frankly, simply discourteous and unfriendly. Manners. Law students rise above.

  4. Karen:
    I happen to dig Will McNair’s writing. But when I see something that I think is factually or analytically wrong, I’ll call him (or anyone else) on it.

    It is wrong to say that the alleged breaches were utterly without merit. In fact, more than one Charter breach was found to have merit.

    The judge erred in finding most of the police misconduct to have risen to the level of a Charter breach. He also erred in holding that the Charter breaches warranted a stay. But there were breaches, and the Court of Appeal said so, at para 166:

    “We conclude this part of our reasons as we began. The evidence does not support most of the findings of Charter breaches by the trial judge. The few Charter breaches that were made out, such as non-disclosure of certain items, were remedied before the trial proper would have commenced had the trial judge not entered the stay of proceedings.”

  5. Lawrence Gridin’t comment that “this is really not funny” and his subequent remarks in no sense constitute a tirade, and the commentator who labelled them as such would do well to recall the saying “first cast the mote out of your own eye.”

    I appreciate Gridin’s remarks, which added a great deal more info and corrected a significant misapprehension on the part of the writer, to which the latter has already owned up.

    And for the record, I too think that the headline for this article is really inappropriate, and, moreover, it doesn’t make sense – when we say “April fools” to someone, we are about to reveal that we have perpetuated a prank or a joke. I began to read the article half-expecting to hear that previous reports on the judge’s dismissal had somehow erred.

  6. James Halifax | April 6, 2009 at 12:16 pm |

    Hey…I’m sure that this poor judge earned his place on the Bench the same way many other Judges have before him.

    A sizeable contribution to the Liberal Party of Canada…..

  7. Perhaps judges should be elected in Canada?
    Then, voters would know where judges stand on minor matters like upholding laws and that kind of thing.
    For example, the judge in Windsor that construed Canada’s criminal code against bigamy to mean that Al Jibouri must have had a “serious intent” to take a second wife (outside of Canada)to constitute bigamy.
    Gee, a guy goes to the states, gets in front of an alter.. gets married while his wife is at home in Canada, then returns. hmm… maybe he thought he was getting a cup of Tim Hortons coffee? It must seem obvious to all the man had no intention of getting a second spouse.
    Or, perhaps the Saskatchewan judge who appears to have created simultaneous legal spouses for a woman who was married to a man in Ontario..can anyone say polygamy?
    Charter rights and freedoms include equal treatment for all. Is it equal treatment to allow SOME folks to be bigamists but not all?
    Is it equal treatment to prosecute SOME criminal code violations but not others?

    Oh well..abuse of judicial power? remedial law classes for judges? Review of cases by third parties? Dunno.. greater minds will decide.

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