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A Canadian Judicial Council disciplinary panel threw a curveball at Ontario Superior Court Judge Paul Cosgrove late today by ordering his misconduct inquiry to continue in spite of a surprise, eleventh-hour apology from Judge Cosgrove.
Just hours after the 73-year-old judge had apologized for his conduct at a rancorous, two-year murder trial, the CJC panel said it intends to hear the remainder of the evidence against him.
British Columbia Chief Justice Lance Finch, chair of the panel, fired off several sharp questions at Judge Cosgrove's lawyer – Chris Paliare – as to whether his client's eleventh hour apology amounted to a genuine admission of misconduct.
“What is he apologizing for?” Chief Justice Finch asked. “Does the judge characterize this as being strictly an error, or as judicial misconduct? What I don't understand is whether he has acknowledged judicial misconduct.”
The hearing will continue tomorrow with testimony from Crown lawyers and a police officer who were tarred by comments and accusations from Judge Cosgrove, made during the sensational, 1998 murder trial of Julia Elliott.
Judge Cosgrove, his lawyers and CJC commission counsel Earl Cherniak were clearly taken by surprise by the panel's decision to press ahead.
Following the dramatic apology – coming after Judge Cosgrove had fought a pitched, four-year battle to thwart any probe into his actions – a clear expectation had developed that the inquiry would swiftly wrap up.
Indeed, Mr. Cherniak had offered an opinion following the apology to the effect that the apparent sincerity of Judge Cosgrove's apology meant that his conduct no longer warranted the extreme punishment of removal from office.
However, Chief Justice Finch was suspicious of the timing of Judge Cosgrove's change of heart. “There has been a significant expenditure of public money in the process,” he remarked. “As far as I can see, nothing has changed between then and now.”
Alberta Chief Justice Allan Wachowich also expressed skepticism, wondering aloud why Judge Cosgrove's “epiphany” did not come years earlier.
“It would have been better for all concerned – including the public purse – if the apology had been made earlier,” Mr. Cherniak agreed.
However, Mr. Cherniak also noted that Judge Cosgrove had the same right as any citizen does to challenge the constitutionality of a provision that is being used against him.
Judge Cosgrove's apology came six days into the hearing to determine whether he harboured bias against the Crown. The former federal Cabinet minister told the panel that he “sincerely and unreservedly” regrets besmirching the reputations of many Crown counsel and police who became caught up in the case.
Judge Cosgrove also offered to never preside over another case involving the Crown if the CJC will permit him to remain on the bench.
He confessed that his missteps at the Elliott trial embarrassed a host of officials – including senior Crown administrators who had nothing to do with the proceeding – and that his errors ended up wasting a great deal of money and court resources.
“I stand before you humbled and chastened,” Judge Cosgrove told the CJC panel. “This experience has driven home the need for me to make this apology to those affected by my actions.
“In particular, I regret any intemperate, denigrating or unfair language I may have used in what was the most stressful trial of my career.”
In staying Ms. Elliott's murder charge at the end of the trial, Judge Cosgrove cited 150 breaches of her Charter rights by police and Crown officials.
“I have thought about that trial virtually every day for ten years,” Judge Cosgrove said today. “It was like nothing I'd seen before – or since. At times, I lost my way.”
In 2003, the Ontario Court of Appeal ordered a retrial of the Elliott case and repeatedly singled out Judge Cosgrove out for criticism.
Shortly afterward, Attorney-General Michael Bryant lodged a complaint about his conduct with the CJC. In the years, since Judge Cosgrove waged a courtroom battle over the constitutionality of the CJC's powers.
Judge Cosgrove said today that, while he has come to accept the stinging Court of Appeal judgment without reservation, it failed at the time to dislodge his abiding belief that he had kept an open mind and done his best to conduct the Elliott trial fairly.
In accepting the import of the apology, Mr. Cherniak said that he no longer believes there are grounds to remove Judge Cosgrove from the bench. Instead, a “strong and pointed admonition” from the entire CJC would suffice as punishment, he said.
“This is a clear statement that the ongoing process has led to him understanding...and it is reasonable to assume that the conduct that led to this inquiry is unlikely to repeated,” Mr. Cherniak said.
He noted that the decision to remove a judge from office is an extreme one, and that Judge Cosgrove's conduct now falls below that of judges who committed sins of “corruption or moral turpitude.”
During the Elliott trial, a hard-driving defence lawyer who has since been hired by the Public Prosecution Service of Canada – Kevin Murphy – made repeated accusations that the Crown and police had concealed or misrepresented evidence.
Judge Cosgrove said today that he was obviously not up to the task of reining in Mr. Murphy's “extravagant rhetoric” – or the aggressive responses that it had elicited from the Crown.
“With hindsight, my attempts only met with modest success,” Judge Cosgrove said. “It is evident to me now that I did not intervene often, or forcefully, enough.”
In making his unusual offer to refrain from sitting on any cases involving the federal or provincial Crown, Judge Cosgrove said that it would be “inappropriate” for him to hear any such cases.
He stressed that his near-brush with removal has been an epiphany to him, and reinforced how much he cares about his job: “Aside from my family and my faith, being a judge is the most important thing in my life,” he said.
In a submission to the CJC panel, Mr. Paliare proffered a sheaf of positive letters from fellow judges and lawyers who have appeared before the judge.
Mr. Paliare said it is ironic that some of the lawyers noted in their letters that, if anything, Judge Cosgrove was generally considered to be a judge who was more “pro-Crown” than favourable to the defence.
Since the CJC hearing began on Sept. 2, Mr. Cherniak has read in hundreds of excerpts of trial transcript in which Judge Cosgrove made intemperate remarks or failed to deal properly with allegations from counsel.
Judge Cosgrove said that hearing his words read out in the inquiry room in recent days had a “profound” effect on him. “It caused me to relive the trial, but from an entirely different perspective,” he said.
Only a handful of judges have ever faced a public misconduct inquiry, and none have ever been forced through the most severe sanction the can ensue – a parliamentary vote to remove him from the bench.
Judge Cosgrove said that there is no more “traumatic ordeal” a judge can have than to face removal after a searing public hearing convened by one's peers.
“I recognize that a judge must exhibit a high standard of judicial conduct in order to enforce and reinforce public confidence,” he said. “I want to assure the inquiry committee that I have and will dedicate myself to reaching those high standards.”
Editor's note: An earlier version of this story had the wrong name for a defence lawyer involved in the murder trial of Julia Elliott. Kevin Murphy was the lawyer. He has since been hired by the federal Public Prosecutions Service. Dan Murphy, a federal Department of Justice lawyer for 30 years, had no connection to the Elliott case.
