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

By: Warren

Warren — Fri, 05 Jun 2009 12:47:31 +0000

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.

By: James Halifax

James Halifax — Mon, 06 Apr 2009 17:16:00 +0000

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…..

By: Marnie Tunay

Marnie Tunay — Sun, 05 Apr 2009 12:35:16 +0000

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.

By: Lawrence Gridin

Lawrence Gridin — Fri, 03 Apr 2009 00:12:59 +0000

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."

By: Karen Hutchison

Karen Hutchison — Thu, 02 Apr 2009 22:06:28 +0000

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.

By: Will McNair

Will McNair — Thu, 02 Apr 2009 06:34:26 +0000

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.

By: Lawrence Gridin

Lawrence Gridin — Thu, 02 Apr 2009 03:21:28 +0000

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.