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Ottawa judge loses appeal on inquiry into his conduct Judges have lost a showdown with politicians in a court ruling that reinstates a special power allowing provincial attorneys general to force automatic public inquiries into judicial conduct that can lead to removal from the bench. The Federal Court of Appeal ruled against Ontario Superior Court Justice Paul Cosgrove, a former federal Liberal cabinet minister who has been in a lengthy legal tussle with Ontario Attorney General Michael Bryant over Judge Cosgrove's controversial decision to clear a Barbadian woman of first-degree murder. The ruling, which deals with the thorny debate over independence of the
judiciary, overturns an earlier decision in the Federal Court that stripped
provincial politicians of their power to force public probes. "Judicial independence does not require that the conduct of judges be immune from scrutiny," wrote Justice Karen Sharlow in a unanimous ruling by a three-judge panel. Judge Cosgrove attempted to strike down a public inquiry into his conduct that began with a complaint Mr. Bryant filed with the Canadian Judicial Council after Judge Cosgrove stayed murder charges against Julia Yvonne Elliott. As a visitor to Canada from Barbados, she was charged in the death of Lawrence Foster, whose thighs were found floating in the Rideau River near his eastern Ontario home of Kemptville in the summer of 1995. Judge Cosgrove freed Ms. Elliott after ruling that police and prosecutors committed more than 150 Charter of Rights breaches against her. Mr. Bryant's complaint was based on a December 2003 Ontario Court of Appeal decision, which concluded "there was no factual basis" for Judge Cosgrove's findings and that he had "misused his power." Judge Cosgrove's lawyer, Chris Paliere, said he expects to know within a week whether Judge Cosgrove will ask the Supreme Court of Canada to review the case. Mr. Paliere said letting the Federal Court of Appeal ruling stand would have a "chilling effect" on the justice system by giving the impression that judges are beholden to government because their jobs could be on the line if they rule in favour of the other side in court cases. Mr. Bryant's lawyers successfully argued in the appeal that the attorney general was acting as "a guardian of the public interest" in their ability to force inquiries. Judge Cosgrove, who was appointed in 1984, stopped hearing cases after Mr. Bryant lodged his complaint in April 2004. He resumed sitting after winning in the Federal Court in late 2005. Mr. Paliere said he will oppose any move to remove him from the bench again as a result of the latest court ruling. The Cosgrove inquiry, which started in late 2004, was stopped in its tracks when the veteran judge challenged the power of the attorney general to bypass the normal investigation process when complaining to the Canadian Judicial Council, the body that polices judges. Mr. Bryant's letter to the judicial council automatically triggered a disciplinary hearing because it came from an attorney general rather than a member of the public, whose complaint would be reviewed by the council to determine if it merits investigation. The inquiry will not resume immediately because the council is waiting to see if Judge Cosgrove asks the Supreme Court of Canada to hear his challenge, said council executive director, Norman Sabourin.
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