An unprecedented constitutional showdown is set to start today at the
inquiry of an Ottawa judge who was criticized by the Ontario government for
his role in the Julia Elliott murder trial.

Ontario Superior Court Justice Paul Cosgrove is challenging the power of
Attorney General Michael Bryant to order an inquiry and the Canadian
Judicial Council's right to hear it.

The Canadian Superior Court Judges Association supports Judge Cosgrove's
motion, saying neither the minister nor the attorneys general have the power
to order an inquiry because the law does not allow it. But Mr. Bryant,
backed by the attorney general of Canada, argues he has the right to launch
the inquiry.

This sets up a constitutional battle between the government and judges, who
see this as a fight over judicial independence."Judicial independence
requires not only that the judiciary be independent of the legislative and
executive branches of government, but that the public perceive that the
judiciary is independent and free from interference by other branches of
government," say the Criminal Lawyers' Association and the Canadian Council
of Criminal Defence Lawyers.

The issue stems from Judge Cosgrove's controversial handling of the
September 1999 decision in the murder trial of Ms. Elliott. She was accused
of killing Larry Foster, 64, and tossing his body parts into the Rideau
River in August 1995.

She had met the retired mechanic while he was vacationing in Barbados years
earlier. She was visiting him at the time of his death.

When police arrested Ms. Elliott, one of her dresses had Mr. Foster's blood
on it. She also had his microwave oven packaged to send to Barbados.

Ms. Elliott was held at the Ottawa Carleton Detention Centre for four years
awaiting trial.

After 18 months of false starts, Judge Cosgrove stayed the murder charge
against her.

The judge at the time cited 150 constitutional violations by the police and
Crown.

He found the accused's Charter rights to a fair and speedy trial had been
seriously breached by the prosecution. He also ordered legal costs against
the Crown.

"When the police take the law into their own hands, as in this case,
experience shows, and this case proves, that the truth and fairness get
trampled under foot," said Judge Cosgrove in his ruling. "When the Crown
officers employ an exaggerated adversarial stance, as in this case, the
trial process becomes so unbalanced that the guaranteed Charter right to a
fair trial is undermined." The ruling, he said, was a stinging indictment of
the agencies meant to enforce the law.

Ms. Elliott later returned to her native Barbados, but in December 2003, the
Ontario Court of Appeal overturned the ruling and ordered a new trial. Ms.
Elliott is in Canada awaiting trail. She has pleaded not guilty.

The appeal court judges found "there was no factual basis" for the stay of
proceedings, and said Judge Cosgrove had "misused his power" in several
instances.

A letter in April from Mr. Bryant to the Canadian Judicial Council,
criticizing Judge Cosgrove and calling for his removal from the bench,
sparked the inquiry. In the letter, Mr. Bryant said Judge Cosgrove's conduct
"tarnished the administration of justice, and turned into an exercise of
vilifying the state built on irrelevant, inappropriate and harmful findings,
trivialized the Charter and deprived the victim's family of any semblance of
justice."

He said Judge Cosgrove "undermined public confidence in the administration
of justice in Ontario and has rendered Judge Cosgrove incapable of executing
his judicial office."

A two-day public hearing on Judge Cosgrove's constitutional challenge will
begin this morning in Toronto before a four-member inquiry committee.

Both the judges' and lawyers' associations, as well as the attorney general
of Ontario and of Canada, have received intervenor status. No date has been
set for the hearing into Judge Cosgrove's conduct in the Elliott trial. That
will be scheduled only after the constitutional issues are resolved.

Judge Cosgrove is challenging the validity of Section 63(1) of the Judges
Act, which Mr. Bryant argues gives him the right to demand an inquiry into a
judge's conduct.

This is only the sixth time a provincial attorney general has requested an
inquiry by the Canadian Judicial Council. But it is the first time the
constitutionality of that section is being challenged before a committee.

In his statement, the attorney general argues the section gives the federal
justice minister and the provincial attorneys general the right to trigger
an inquiry "marked by an active search for the truth."

But Mr. Bryant argues such power can create a "chilling effect" on the
conduct of judges when they're handling cases in which the attorney general
is a litigant.

It also creates a perception in the public's mind that when it comes to
cases involving the attorney general, there won't be a "level playing field"
in the courtroom, he argues.

Even if an inquiry exonerates him, Judge Cosgrove says the damage to his
reputation can't be reversed.

The inquiry committee is chaired by Lance Finch, chief justice of British
Columbia. Other members are Michael MacDonald, associate chief justice of
the Supreme Court of Nova Scotia; Chief Justice Allan Wachowich of the Court
of Queen's Bench of Alberta; and John Nelligan of the law firm Nelligan
O'Brien Payne in Ottawa.