Supreme Court dismisses judge's bid to stop inquiry

Complaint made after justice freed Barbadian charged with 1st-degree murder

William Lin, Ottawa Citizen

Published: Thursday, November 29, 2007

The Supreme Court has dismissed Justice Paul Cosgrove's appeal application to stop a public inquiry into his conduct, a decision that comes several years after he cleared a Barbadian woman of first-degree murder in the death of a Kemptville man.

Michael Bryant, then-Ontario attorney general, had filed a complaint with the Canadian Judicial Council after Judge Cosgrove stayed murder charges against Julia Yvonne Elliot.

Ms. Elliot was a visitor to Canada when she was charged with Lawrence Foster's death. In 1995, Mr. Foster's thighs were found floating in the Rideau River near his Kemptville home.

Judge Cosgrove freed Ms. Elliot after ruling that prosecutors and police committed more than 150 constitutional breaches against her.

Mr. 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 yesterday.

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 be investigated.

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 lawyer.

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.