A PROBE into the conduct of a controversial Ottawa judge ordered by the government should be derailed because it threatens judicial honesty and freedom of speech, a public hearing heard yesterday. Lawyers for Justice Paul Cosgrove, who has faced heavy criticism for his role in the Julia Elliott murder trial, said a probe ordered by Attorney General Michael Bryant is unconstitutional and a government should not be permitted to drag judges through automatic disciplinary hearings.
"You have an attorney general being able to put a chilling effect on judges simply by the threat of a (disciplinary hearing)," lawyer Chris Paliare said at a hearing into the constitutional challenge which will determine whether the probe can go forward.
"Such a (probe) undermines judicial independence."
Paliare said the attorney general should not be able to initiate disciplinary hearings without a "prescreening" investigation that would determine whether there is merit to the complaint.
He said allowing such inquiries is unconstitutional because they threaten judges' honesty and freedom of speech.
Bryant requested the probe into Cosgrove more than four years after the judge's controversial handling of the September 1999 Elliott decision.
Elliott was accused of killing Larry Foster, 64, and tossing his body parts into the Rideau River in August 1995.
Cosgrove stayed the murder charge against Elliott, citing some 150 constitutional violations by police and prosecutors. The Ontario Court of Appeal overturned that decision and ordered a new trial.
Bryant wrote in April to the Canadian Judicial Council criticizing Cosgrove and calling for his removal from the bench, which sparked the inquiry.
This is only the sixth time a provincial attorney general has requested such an inquiry.