Dec. 10, 2004. 01:00 AM

Judges' rights under scrutiny
Lawyers might jeopardize careers if they complain

Attorney general's power ensures `public confidence'



The unique power of an attorney general to trigger an inquiry into a judge's conduct is essential for maintaining confidence in the justice system, especially in small towns where lawyers may be afraid to complain about a judge, a panel of the Canadian Judicial Council has been told.


"They have their careers. They have their reputations. They have to appear in front of that judge time and time again," Donald Rennie, a lawyer representing the federal attorney general, said yesterday.


"Somebody has to have the responsibility for ensuring, in notorious cases, the public confidence is upheld and it's far more appropriate for the attorney general to act under those circumstances," he told the five-member panel, led by British Columbia Chief Justice Lance Finch.


Rennie was responding to a constitutional challenge launched by Justice Paul Cosgrove, who is at the centre of a public inquiry called at the request of Ontario Attorney General Michael Bryant. He contends the Superior Court judge's conduct at a 1999 murder trial has rendered him unfit to remain in office.


Cosgrove stayed charges against Julia Elliott, citing more than 150 Charter violations committed by the Crown and police, and accusing seven senior Crown and police officials of misleading the court. But the Ontario Court of Appeal overturned those findings in a severely critical judgment last year, calling virtually every one of them unfounded.


Bryant subsequently exercised his power under a section of the federal Judges Act to bring about a public hearing into Cosgrove's conduct. If an ordinary citizen had made the complaint, it would have been first screened by a private committee to determine if further action was warranted.


Cosgrove, 69, a former Scarborough mayor and former federal Liberal cabinet minister, says his career is now likely permanently damaged even if the council clears him of wrong- doing. In effect, the Judges Act gives an attorney general the power to sanction federally appointed judges, and that violates their constitutionally protected guarantees of independence and their right to freedom of expression, argue his lawyers, Chris Paliare and Richard Stephenson.


If they win their constitutional challenge, the inquiry will come to an end.


Robert Charney, a lawyer representing the Ontario attorney general, took issue yesterday with Paliare's suggestion that Bryant had "an oblique motive" for requesting a fitness inquiry for Cosgrove. Bryant's request didn't come until four years after the Elliott trial ended and only after Cosgrove castigated the Crown, Paliare said.


"No one who reads the Ontario Court of Appeal's decision in R. v. Elliott, no one who reads the criticism of how Justice Cosgrove conducted the case, can seriously question the motives of the attorney general or can in any way suggest they are oblique and unrelated to the public interest," Charney said.