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
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
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.