Judge Cosgrove freed Ms. Elliot after ruling
that prosecutors and police committed more than
150 constitutional breaches against her.
Bryant's complaint was based on a 2003 Ontario
Court of Appeal decision that "there was no
factual basis" for Judge Cosgrove's findings and
that he had "misused his power."
"We're disappointed, as is Justice Cosgrove,"
one of his lawyers, Richard Stephenson, said
Mr. Stephenson said the attorney general's
power to force automatic public inquiries into a
judge's conduct - the heart of the case - is an
"unconstitutional infringement on judicial
independence." He said the ruling means it gives
attorneys general "virtually unfettered powers."
Judge Cosgrove scored a victory when a
Federal Court stripped provincial politicians of
their power to force public investigations. But
in March, a Federal Court of Appeal overturned
that ruling, leading to Judge Cosgrove's failed
attempt to take the case to the Supreme Court.
In that appeal, Mr. Bryant's lawyers
successfully argued that attorneys general are
acting as "a guardian of the public interest."
Mr. Bryant's letter to the judicial council
automatically started a hearing because he was
an attorney general. Usually, the council would
review a complaint and decide whether it should
The Cosgrove inquiry, which began late in
2004, stopped when Judge Cosgrove challenged the
power of the attorney general to bypass the
normal investigation process when filing a
complaint to the judicial council.
"It's a serious setback from our perspective
with respect to issues related to judicial
independence. That was the heart of the case. In
our view, we're disappointed the Supreme Court
of Canada hasn't chosen to review this case,"
said Chris Paliare, another of Judge Cosgrove's
The Supreme Court's decision means that the
Canadian Judicial Council's inquiry committee to
review Judge Cosgrove's conduct will resume.
The inquiry committee consists of three
judicial members appointed by the council, and
two senior lawyers, appointed by the minister of
justice. An independent counsel, Toronto lawyer
Earl Cherniak, has been appointed to present the
case to the committee.
The Canadian Judicial Council investigates
complaints relating to a judge's personal
conduct, on or off the bench.
© Ottawa Citizen 2007