Judge unfairly maligned official, hearing told


From Thursday's Globe and Mail

September 4, 2008 at 5:00 AM EDT

A judge whose conduct is undergoing a rare review by his peers maligned the most powerful figure in the Ontario government criminal-law branch - Murray Segal - without giving Mr. Segal a chance to respond, a Canadian Judicial Council misconduct hearing has been told.

The hearing panel was told that Ontario Superior Court Judge Paul Cosgrove accused Mr. Segal in a 1999 ruling of exercising "willful blindness" by failing to rein in prosecutors who Judge Cosgrove had concluded were concealing or misrepresenting evidence in the Julia Elliott murder trial.

The CJC panel was told by its independent counsel, Earl Cherniak, that Mr. Segal - Ontario's assistant deputy attorney-general (criminal) - was the most senior of several officials who were condemned by Judge Cosgrove.

He noted that the Ontario officials were effectively vindicated in 2004, when the Ontario Court of Appeal overturned the stay of proceedings, raked Judge Cosgrove over the coals, and ordered Ms. Elliott to face a new trial for the 1995 murder of her former lover Larry Foster.

The CJC is considering whether to recommend that Judge Cosgrove be removed from the bench for persistent bias against the Crown.

Mr. Cherniak said that the trial consumed two years of court time, yielded 20,000 pages of transcripts, and was repeatedly diverted by defence accusations involving an alleged Crown and police conspiracy. Reading from transcripts yesterday, he referred to one police witness who called it "the trial from hell."

In another excerpt, Mr. Cherniak quoted Ms. Elliott's defence lawyer accusing top Crown officials of conspiring to win "a stinky, dirty prosecution" at all costs.

Chris Paliare, a lawyer for Judge Cosgrove, contends that his client did his best to exert control over a volatile proceeding. He told the panel that Judge Cosgrove took pains to get to the bottom of mounting evidence that police had, indeed, engaged in questionable practices in the Elliott case and another murder trial that was running concurrent to it, known as the Cumberland case. Mr. Paliare also criticized the Crown for not challenging Judge Cosgrove's impartiality during the trial.