Inquiry Committee presents its report to the Canadian Judicial Council regarding Justice Paul Cosgrove
Ottawa, 4 December 2008 – The Inquiry Committee created to review the conduct of the Honourable Paul Cosgrove, of the Ontario Superior Court of Justice, has submitted its report detailing its findings and conclusions to the Canadian Judicial Council. The Inquiry Committee’s report, which includes dissenting reasons by a member of the Inquiry Committee, concludes that there are grounds to justify making a recommendation for the removal of Justice Cosgrove from judicial office. The report is available on the Council’s website.
In line with the Council’s Inquiries and Investigations By-Laws, Justice Cosgrove can submit a written response to the Council regarding the report, within 30 days. He can also ask to appear in person before Council, with or without his lawyer, for the purpose of making a brief oral statement regarding the report. Mr Earl Cherniak, Q.C., the Independent Counsel in this matter, may present a reply to any written response, or to an oral statement.
If Justice Cosgrove makes an oral statement to Council, the meeting is expected be held in public. The date and location of such a meeting would be announced in the coming weeks. After hearing all submissions, the Council will prepare a recommendation to the Minister of Justice, indicating whether Justice Cosgrove should be removed from office for any of the reasons set out in section 65(2) of the Judges Act. In accordance with Canada’s Constitution, a judge may only be removed from office through a joint resolution of Parliament.
The Canadian Judicial Council is composed of the chief justices and associate chief justices of Canada’s superior courts. Information about the Council, including documents related to the Inquiry Committee in this matter, can be found on the Council’s website: www.cjc-ccm.gc.ca
Contact:
Norman Sabourin, Executive Director and Senior General Counsel
613-288-1566 ext. 301
Overview of the Report of the Inquiry Committee to the Canadian Judicial Council
The Inquiry Committee convened to investigate the conduct of the Honourable Paul Cosgrove has submitted its report to the Canadian Judicial Council.
Four members of the Inquiry Committee conclude that a recommendation should be made that Justice Cosgrove be removed from office. One member, in dissent, is of the view that a public admonition of Justice Cosgrove is sufficient in the circumstances.
Majority Reasons
This matter has come to the CJC after a long procedural history, which is important to summarize: The murder trial of Julia Elliott began in January 1998. On September 7, 1999, Justice Cosgrove stayed Ms Elliott’s trial as an abuse of process. The Court of Appeal for Ontario, on 4 December 2003 allowed an appeal by the Crown from Justice Cosgrove’s Ruling. On 22 April 2004, the Attorney general for Ontario wrote to the CJC requesting an inquiry into the conduct of Justice Cosgrove, pursuant to section 63(1) of the Judges Act. Justice Cosgrove began court proceedings, arguing that section 63(1) of the Judges Act (giving the Attorney General the right to require a public investigation) was unconstitutional. The matter went all the way to the Supreme Court of Canada, but Justice Cosgrove’s challenge was not successful. Justice Cosgrove presented a new objection to the CJC proceedings in May 2008, arguing that the CJC was without jurisdiction since the complaint related only to “discretionary judicial decisions.” Justice Cosgrove argued that his objection should be heard prior to the start of the Inquiry hearing. The CJC disagreed and advised that it would hear the argument at the time of the hearing. Justice Cosgrove challenged this in court. The Federal Court dismissed that challenge. The Inquiry Committee then met in September 2008 and heard six days of presentations by Independent Counsel, summarizing the 20,000 pages of transcript of the Elliott trial. At the hearing, Justice Cosgrove did not present, or proceed with, his application for a ruling that the Canadian Judicial Council was without jurisdiction. On the seventh day, Justice Cosgrove made a statement to the Inquiry Committee, apologizing for his conduct. The Inquiry Committee then heard witnesses who were directly affected by Justice Cosgrove’s conduct. The Inquiry Committee made the following findings of facts with respect to the particulars of the judge’s misconduct: Many of the judge’s rulings were made in the absence of any legal basis, or made without any rationale. In certain instances, he came to premature conclusions about the case. The judge failed to control the proceedings, in particular, the grossly unprofessional conduct of the defence counsel. The judge effectively launched his own inquiry into the RCMP investigation leading to the charges against Ms Elliott.Repeatedly, the judge appeared to side with the defence and to support positions of the defence which were unsupportable. An observer of the trial could only have concluded that Justice Cosgrove continually exhibited a bias against the Crown’s position. The judge repeatedly abused his contempt powers. In reviewing this matter, it is important to distinguish between judicial conduct that can be remedied in the appellate process, and conduct that is not capable of redress on appeal and involves abuse of judicial independence, or abuse of the office of a judge. Once reviewable misconduct has been identified, there is a further question as to whether it is so serious as to require a recommendation for removal, or whether some other recommendation would be more appropriate. In this case, some aspects of the judge’s conduct either gives rise to an appearance of bias, or are an abuse of judicial independence, or both. These aspects of the conduct are not curable on appeal. When the judge required Crown counsel to respond to the scurrilous allegations against them made by defence counsel, he gave those allegations credence, and caused harm to the reputation of Crown counsel. Many of the proven particulars of misconduct demonstrate incompetence in the judge’s failure to control the trial. Except in serious cases, the general rule is that incompetence is not in of itself a sufficient ground for removal. However, a judge’s conduct may overlap or add to incompetence by failure to exercise restraint or abuse of judicial independence or abuse of office. Justice Cosgrove’s conduct included everything from being rude, abusive or using intemperate language up to the misuse of contempt powers, or threats to do so, and beyond that to defamatory statements of persons who had done no wrong and who, in some cases, had no opportunity to answer the judge’s damning allegations. For a judge to make such unfounded allegations against anyone is a serious abuse of the judicial office. The judge’s use of intemperate and denigrating language can be characterized as a lack of judicial restraint. It is conduct deserving of reprobation. Some of the judge’s actions (quashing the immigration warrant, suggesting to the media what they should publish) were a complete misuse of the judge’s office. The testimony of the four witnesses heard by the Inquiry Committee demonstrates the harm done by the judge’s misconduct, and the damaging effect on public confidence in the administration of justice. With regard to the judge’s statement and apology: this took place almost five years after the Ontario Court of Appeal rendered its judgment, and over fours years after the Attorney General made his complaint. Up to that point, the judge’s position had been, first, that the section of the Judges Act under which the inquiry was constituted was unconstitutional, and second, that the CJC was without jurisdiction because all impugned conduct was in the exercise of the judge’s discretion in the courtroom. The judge’s apology is insufficient and its timing is of concern. The judge appears to lack insight into how his own role in the trial contributed to the situation and as a result he minimizes his own responsibility in this matter. Given the judge’s serious misconduct over an extended period of time, his statement, even viewed in its most positive light, cannot serve to restore public confidence in the judge, or in the administration of justice. The case proven calls for a recommendation for the removal from office of Justice Cosgrove.
Dissenting Reasons
While the judge has engaged in serious misconduct, this does not warrant removal. A strong public admonition is however appropriate in the circumstances. The Independent Counsel represents the public interest and his opinion - that the facts as proven with Justice Cosgrove’s admission of misconduct, no longer supported a recommendation of removal - must be given significant weight. Justice Cosgrove’s statement of apology is an admission of judicial misconduct which mitigates in his favour. He has undergone serious reflection about his past conduct, recognizing how his errors have affected the trial process and public confidence in the justice system. Justice Cosgrove should be strongly admonished for the judicial misconduct displayed in the case of R. v. Elliot. However, he should not be removed from office.Background Information:
The Inquiry Committee that reviewed the conduct of Justice Cosgrove is composed of three judicial members, appointed by the Canadian Judicial Council, and two senior lawyers, appointed by the Minister of Justice. The members of the Committee are:
Mr Earl Cherniak, Q.C., of the firm Lerners, is the Independent Counsel regarding this matter. The mandate of Independent Counsel is to act in the public interest and to bring all relevant facts and points of law before the Committee for its consideration, and to respond to any further representations made to Council by the judge. Justice Cosgrove is represented by Chris Paliare of the firm Paliare Roland Barristers.
Complaints and Inquiries process:
When someone believes that a judge’s personal conduct (on or off the bench) is in question, a complaint may be made to the Canadian Judicial Council. The Council examines only issues of conduct and does not review a judge’s decision in law.
The complaints process is simple: the complaint must be in writing, and it must concern the conduct of a federally appointed judge. No special forms are necessary. No legal counsel is required. No fees are charged. To the extent possible, the Council reviews anonymous complaints in the same way as complaints that are signed.
When a complaint is made, the question before the Council is ultimately whether or not a judge’s conduct prevents that judge from discharging his duties as a judge. In such a case, the Council must decide whether or not to recommend that a judge be removed from office.
A complaint is first reviewed by a member of the Judicial Conduct Committee. A complaint can be dismissed when it is clearly frivolous or does not fall within the mandate of the Council. In roughly half of cases, the complaint is studied in more detail and the judge in question, as well as judge’s chief justice, are sent a copy of the complaint and asked for their comments. The complaint is often resolved at this stage, with an appropriate letter of explanation to the complainant.
If the complaint cannot be resolved at that stage, the file can be referred to a Panel of up to five judges for further review. When a Panel concludes that the complaint has merit but is not serious enough to move to the next stage (a formal hearing by an Inquiry Committee) then the Panel may close the file with an expression of concern, or may recommend counselling or other remedial measures.
When the complaint may be serious enough to warrant the judge’s removal, the Panel can recommend that the Council establish an Inquiry Committee. After completing its investigation, an Inquiry Committee reports its findings to the Canadian Judicial Council. The Council then decides whether or not to recommend to the Minister of Justice of Canada that the judge be removed from office. In accordance with the provision of Canada’s Constitution, a judge may be removed from office only after a joint resolution by Parliament.