Judging the judges: Canada's more than 2,000 federal and provincial judges are coming under harsher public scrutiny

By Jacquie McNish & Kirk Makin
Globe and Mail
Sep 17, 2008

Minutes after Ontario Superior Court's Mr. Justice Paul Cosgrove threw himself at the mercy of a disciplinary panel last week by apologizing for a multitude of courtroom lapses, the 73-year-old judge walked out of the Toronto hearing and sank into a hallway chair.

The dejected judge probably understood that he had played his last legal card before the disciplinary panel. After mounting a four-year court battle to thwart the probe, he reversed gears last Thursday with a dramatic apology for his conduct in a botched murder trial that ended more than a decade ago.

"I stand before you humbled and chastened ... At times I lost my way," Judge Cosgrove told a Canadian Judicial Council (CJC) panel of three judges and two lawyers in an attempt to explain his erratic rulings during an acrimonious two-year trial.

The 11th-hour plea failed to persuade the panel to shut down the inquiry, which concluded last week. It is expected to take months for the panel to announce whether the federally appointed judge's actions amounted to misconduct. If the CJC as a whole agrees with such a finding, the former Liberal cabinet minister could become the first judge in Canada to face a Parliamentary misconduct vote.

There is more than Judge Cosgrove's job and pension at stake. Last week's drama serves as the latest sign that the country's more than 2,000 federal and provincial judges are coming under harsher public scrutiny. The long wait for the panel's hearing is also reminder that justice moves at a very slow pace when it comes to reviewing the conduct of judges.

Misconduct charges against judges have increased steadily in recent years, with the CJC reporting 189 complaints against about 1,000 federal judges last year. That's a 36-per-cent rise from the level in 2003. Judges are also being pulled into the political glare as the proliferation of challenges under the Charter of Rights and Freedoms requires them to pass judgment on such red-hot controversies as minority rights and abortion law.


No judge, no matter how senior, seems to be immune. Last month, a group of Christian and anti-abortion organizations filed a complaint with the CJC demanding Supreme Court of Canada Chief Justice Beverley McLachlin be removed from office for "bias" and "a political agenda." Her offence, they claimed, is that she chairs the advisory committee that selected Dr. Henry Morgentaler for an Order of Canada. Chairing the advisory committee is a chief justice role mandated by federal legislation.

"We are seeing a lot more complaints. While there should be accountability and transparency, there are some situations in which the complaints process is becoming politicized," said Paul Cavalluzzo, a Toronto lawyer and judicial expert.

Mr. Cavalluzzo represents Ontario Superior Court Mr. Justice Ted Matlow, who is awaiting a CJC decision on an earlier panel finding that the judge improperly lobbied politicians and the media to oppose a real estate development near his Toronto home.

Ever since the Canadian Judicial Council was founded in 1971 to promote accountability and transparency in the once-cloistered profession, judicial experts have fretted that the complaint process could be abused to undermine the judiciary's independence.

Until the Cosgrove case, judicial independence hasn't been much of a concern because the vast majority of complaints were dismissed.

Of the nearly 3,000 complaints filed with the CJC since 1971, only seven led to public hearings. Only four hearings produced recommendations that judges should be fired for misconduct. Federally appointed judges can only be removed from the bench by a Parliamentary vote. Such a vote has never been called because the judges in question resigned or, in one case, the CJC overturned a panel's call for dismissal.

What makes the Cosgrove case so compelling is the nature of the complaint he faces. The vast majority of complaints filed with the CJC or provincial councils involve allegations of inappropriate courtroom statements or behaviour, including sexist, racist or profane comments. One judge got his knuckles rapped for referring to some fellow judges as "dumb." Others apologized for shouting, pounding the bench or taking too long to render decisions.

The complaint against Judge Cosgrove is the first time a judge has been challenged for the way he arrived at a judgment. At the heart of complaint against him is the allegation that his process for arriving at a decision to throw out a murder case amounted to misconduct. In other words, the central question is whether the judge was competent when he made his ruling.


The case involved charges that Julia Yvonne Elliott murdered and dismembered her boyfriend in 1995. Despite extensive evidence, Judge Cosgrove found the Crown and other justice officials had committed 150 constitutional violations and dismissed the case. The decision was overturned by the Ontario Court of Appeal, which delivered a scathing rebuke to Judge Cosgrove. That decision triggered a four-year battle between the judge and Ontario's Attorney-General over whether the CJC had the constitutional right to hear a complaint about his competence.

Several judges have filed letters of support for Judge Cosgrove to prevent a misconduct ruling that his lawyer Chris Palliare has warned could have a "chilling effect" on judicial independence.