Saturday, November 26, 2005

TORONTO - The federal government is appealing a court ruling that put on hold a Canadian Judicial Council disciplinary hearing against Superior Court Justice Paul Cosgrove.

Documents filed this week in the Federal Court of Appeal argue that Justice Anne Mactavish made legal errors when she struck down a section of the Judges Act and found it infringed on the principle of judicial independence.

The section requires a Superior Court judge to face a disciplinary hearing, which could lead to removal from the bench, if a complaint is filed by a provincial or federal attorney general.

"The application judge erred in misapprehending, misconstruing and in failing to consider the evidence before her," state lawyers for the attorney general of Canada in the notice of appeal.

Ontario Attorney General Michael Bryant sent a letter of complaint to the judicial council in April 2004. It followed a Court of Appeal ruling that overturned Judge Cosgrove's decision to dismiss second-degree murder charges against Julia Yvonne Elliott. Judge Cosgrove found 150 violations of Ms. Elliott's constitutional rights by police and prosecutors and stayed the charges in 1999.

Ms. Elliott, 45, a native of Barbados, was accused of killing Kemptville resident Lawrence Foster in 1995, who she allegedly met two years earlier. She was extradited from Costa Rica last year and is still awaiting trial. The Court of Appeal ordered a new trial in December 2003 and said criticisms of police and prosecutors were unfounded.

Judge Cosgrove has been on a paid leave of absence for 19 months, since the complaint was filed.

A judicial council committee ruled after a hearing in Toronto in December 2004 that the section, which grants the special powers to attorneys general, does not infringe on judicial independence. The judge successfully appealed that decision to the Federal Court.

Judge Cosgrove's lawyer, Chris Paliare, said yesterday he is disappointed the federal government is appealing.

During the judicial council hearing and the initial appeal, Mr. Paliare argued an attorney general should have the same status as any other citizen and be required to file a complaint under the Judges Act. Such complaints are reviewed by the Canadian Judicial Council to determine if there is enough evidence to warrant a disciplinary hearing.

Even if the judicial council were to ultimately recommend to the Justice Minister that Judge Cosgrove be removed from the bench, it would still require a joint vote of the House of Commons and the Senate before this could take place. This process safeguards judicial independence said Mr. Rennie.
© The Ottawa Citizen 2005