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Ottawa, November 29 2007

The Supreme Court of Canada dismisses an appeal by Justice Cosgrove regarding an Inquiry Committee of the Canadian Judicial Council

Ottawa, 29 November 2007 – In the matter of an Inquiry Committee of the Canadian Judicial Council, the Supreme Court of Canada announced today that the Honourable Mr Justice Paul Cosgrove's application for leave to appeal a decision of the Federal Court of Appeal has been dismissed.

The Federal Court of Appeal's 12 March 2007 decision, to refer the investigation into the conduct of Mr. Justice Cosgrove back to the Inquiry Committee convened by the Canadian Judicial Council, stands. In that judgment, the Federal Court of Appeal set aside the decision of the Federal Court, released on 26 October 2005, which had declared invalid the power of a provincial attorney general to require that an inquiry be held into the conduct of a judge. The Federal Court of Appeal held instead that the provisions of the Judges Act which allow an Attorney General to request an inquiry do not impair judicial impartiality.

The Supreme Court of Canada's decision means that the Inquiry Committee convened by the Canadian Judicial Council to review the conduct of Mr. Justice Paul Cosgrove will resume its consideration of this matter in the near future.

The Supreme Court of Canada's decision is available at:
http://scc.lexum.umontreal.ca/en/news_release/2007/07-11-29.3a/07-11-29.3a.html

The Federal Court of Appeal's decision is available on the Court's website at:
http://decisions.fca-caf.gc.ca/en/2007/2007fca103/2007fca103.html

The Canadian Judicial Council is composed of the chief justices and associate chief justices of Canada's superior courts. The Council's web site address is:
http://www.cjc-ccm.gc.ca

Contact:
Norman Sabourin
Executive Director and Senior General Counsel
613-288-1566, extension 301

Background Information

The Inquiry Committee consists of three judicial members, appointed by the Council, and two senior lawyers, appointed by the Minister of Justice. The members of the Committee are:

  • The Honourable Lance Finch, Chief Justice of British Columbia (Chairperson);
  • The Honourable Michael MacDonald, Chief Justice of Nova Scotia;
  • The Honourable Allan Wachowich, Chief Justice, Court of Queen's Bench of Alberta;
  • Ms Kirby Chown, of the law firm McCarthy Tétrault in Toronto; and
  • Mr John Nelligan, of the law firm Nelligan O'Brien Payne in Ottawa.

Independent counsel, Mr Earl Cherniak of the law firm Lerners in Toronto, has been appointed to present the case to the Inquiry Committee. 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. Justice Cosgrove is represented by Mr Chris Paliare of the law firm Paliare Roland in Toronto.

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.

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