Canadian Judicial Council recommends that Justice Cosgrove be removed from office

Ottawa, 31 March 2009 - Following a public inquiry held at the request of the Attorney General of Ontario, the Canadian Judicial Council has completed its review of the conduct of the Honourable Paul Cosgrove of the Ontario Superior Court of Justice.  After finding that the judge engaged in serious misconduct, the Council is recommending his removal from office.

An overview of the reasons contained in the report follows.  The full report is available on the Council’s website.

Section 99 of the Constitution Act, 1867, provides that a judge may only be removed from office “on Address of the Senate and House of Commons.”  

In accordance with the Judges Act, the Council has presented its report to the Minister of Justice, with the recommendation that Justice Cosgrove be removed from office.  The matter now rests with the Minister and with Parliament.


The Canadian Judicial Council is composed of the chief justices and associate chief justices of Canada’s superior courts.  Information about the Council can be found on its website at www.cjc-ccm.gc.ca.


Contact
Norman Sabourin, Executive Director and Senior General Counsel
(613) 288-1566 ext. 301


Overview of Report to the Minister of Justice:

 

• All judges have both a personal and collective duty to maintain public confidence in the judiciary by upholding the highest standards of conduct.    
• Pursuant to subsection 65(2) of the Judges Act, Council must follow a two_part test: first, decide whether or not the judge is “incapacitated or disabled from the due execution of the office of judge”; and, second, determine if a recommendation for removal is warranted.
• With regard to the first part of the test, there is no doubt that Justice Cosgrove engaged in serious judicial misconduct, within the meaning of the Judges Act.  
• In the second part of the test, Council assesses whether public confidence in the judge’s ability to discharge his duties has been undermined to such an extent that a recommendation for removal is warranted.  To do so, three factors had to be assessed: the effect of Justice Cosgrove’s statements of apology; the effect of the views expressed by Independent Counsel; and, the effect of taking into account the judge’s entire judicial career, character and abilities.
• In this case, the judge’s misconduct was so serious and so destructive of public confidence that no apology, no matter its sincerity, can restore public confidence in the judge’s ability to impartially carry out his duties in future.
• The views of Independent Counsel are important and useful, but the ultimate determination rests with Council.  
• Consideration was given to the judge’s overall career and the expressions of support by others, but the key issue remains the damage done to public confidence, which is an issue that also rests with Council.
• Serious incompetence, in any given case, is bound to undermine public confidence in the administration of justice.  No decision needs to be made in this case, but it is an issue that may need to be addressed in a future case.
• In conclusion, Justice Cosgrove has failed in the execution of his duties; public confidence in his abilities has been irrevocably lost and there is no alternative measure to removal that would be sufficient to restore public confidence.  
• The Council therefore finds that the judge’s conduct warrants a recommendation to the Minister of Justice for removal from office.

      
Complaints and Inquiries process:
    
When someone believes that a judge’s personal conduct (on or off the bench) is in question, a complaint may be made to the Canadian Judicial Council. The Council examines only issues of conduct and does not review a judge’s decision in law.  The complaints process is simple: the complaint must be in writing, and it must concern the conduct of a federally appointed judge. No special forms are necessary. No legal counsel is required. No fees are charged. To the extent possible, the Council reviews anonymous complaints in the same way as complaints that are signed.
    
When a complaint is made, the question before the Council is ultimately whether or not a judge’s conduct prevents that judge from discharging his duties as a judge. In such a case, the Council must decide whether or not to recommend that a judge be removed from office.

Complaints generated by the Minister of Justice or a provincial Attorney General
    
When a complaint is made by the Minister of Justice or a provincial Attorney General,     subsection 63(1) of the Judges Act allows for the process to immediately establish an inquiry committee.
    
Complaint generated from the general public

A complaint is first reviewed by a member of the Judicial Conduct Committee. A complaint can be dismissed when it is clearly frivolous or does not fall within the mandate of the Council. In roughly half of cases, the complaint is studied in more detail and the judge in question, as well as judge’s chief justice, are sent a copy of the complaint and asked for their comments. The complaint is often resolved at this stage, with an appropriate letter of explanation to the complainant.  If the complaint cannot be resolved at that stage, the file can be referred to a Panel of up to five judges for further review. When a Panel concludes that the complaint has merit but is not serious enough to move to the next stage (a formal hearing by an Inquiry Committee) then the Panel may close the file with an expression of concern, or may recommend counselling or other remedial measures. 
    When the complaint may be serious enough to warrant the judge’s removal, the Panel can recommend that the Council establish an Inquiry Committee. After completing its investigation, an Inquiry Committee reports its findings to the Canadian Judicial Council. The Council then decides whether or not to recommend to the Minister of Justice of Canada that the judge be removed from office. In accordance with the provision of Canada’s Constitution, a judge may be removed from office only after a joint resolution by Parliament.