Judicial Council Report on Justice Cosgrove
As reported in the Globe and Mail, among other media outlets, the Canadian Judicial Council has recommended to the Minister of Justice that Justice Paul Cosgrove be removed from office. Pursuant to s.99 (1) of the Constitution Act, 1867:
…the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons.
The Judicial Council’s full report is available in PDF and there is a summary on the Council’s website.
The Council acts under the authority of the Judges Act R.S., 1985, c. J-1, and under s.65 the Council “may recommend [to the Minister] that the judge be removed from office” where:
…in the opinion of the Council, the judge … has become incapacitated or disabled from the due execution of the office of judge by reason of
(a) age or infirmity,
(b) having been guilty of misconduct,
(c) having failed in the due execution of that office, or
(d) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office…
The decision of the Council rested on a finding of misconduct on the part of the judge, but at the end of the report the Council addressed the issue of whether a judge could be removed for incompetence and concluded:
In light of our earlier conclusion, we need not address whether incompetence could justify removal from office. The Judges Act refers in section 65 to a judge who “has become incapacitated or disabled” (in the French version “est inapte”). We are of the view that whether incompetence can be a ground for removal from office, in any given case, would best be dealt with another day, when the issue is more directly raised.
To no one’s surprise, Mr. Justice Cosgrove has at last bowed to the inevitable.
One question I haven’t seen raised: given the circumstances of his resignation, would you feel comfortable relying on a decision of Mr. Justice Cosgrove as authority? The rules of precedent don’t cease to apply (as far as I know) to the decisions of a judge recommended to be removed for misconduct. But as a practical matter, I wonder whether this wouldn’t have some effect. Should it?
While he was a judge he was a real judge. But some judges’ opinions have always carried more weight than others, based on their own internal appeal, unrelated to the career path or personality of the judge. This is no exception.
A colleague has pointed out that Cosgrove J (as he then was) has sat at home for the last 5 of the 10 years since the trial that caused his removal, at $260,000 a year, and now faces retirement at $190,000 a year. Has the system worked? How?
Is CJC recomendation to remove Justice Cosgrove from the bench the first sign that Canadian Judicial Council is attempting to clean up the house? Very doubtful to say the truth.
Justice Peter Leask famous for taking bribes from drug dealers (see: http://groups.google.com/group/bc.general/msg/bd54368525e3a890 ) still enjoys full protection of Canadian Judicial Council that gave him slap on the wrists for swearing in court (see: http://www.cjc-ccm.gc.ca/english/news_en.asp?selMenu=news_2007_0920_en.asp ) in a blatant bribery case where Peter Leask found Glen Jonathan Hehn is a full-patch member of the elite Nomad chapter of the Hells Angels nabbed by RCMP storing and transporting large quantity of cocaine, not guilty of drug trafficking charge. (see: http://groups.google.com/group/bc.general/browse_thread/thread/abf5440b04af06e2/f23e2636f0f5f1f8 ).
One would have to ask what was the message that Canadian Judicial Council was trying to convey to Canadian judiciary and Canadian public when they recommended to Canadian Parliament removal of Justice Paul Cosgrove from the judicial bench??
It is quite obvious that Justice Paul Cosgrove never took the bribe from Julia Elliott. It is also quite obvious that his findings against Ontario Crown prosecutors and police must have had lot of merit to them as otherwise Justice Paul Cosgrove would have been classified as yet another crank on the judicial bench and sidelined to Family Court where he would have little chance to interact with Ontario Crown or the Police.
So it seems that Canadian Judicial Council is trying to tell us that it is OK for the crooked judge to swear at the Crown as a way to distract public attention from blatant bribery and corruption taking place in court as long as the bribe taken is big enough and it is shared with other members of legal community but it is not OK to even try to criticise the Crown or the Police on the matters of principle.
So it seems that Canadian Judicial Council is telling Canadian judiciary and Canadian public that we are one big and happy family of crooks on the take whose extracurricular services come at a price that only very rich people and drug traffickers can afford.
http://www.thestar.com/News/Ontario/article/612960