Former Ontario Superior Court justice Paul Cosgrove has spoken out on the Canadian Judicial Council’s decision to call for his ouster, saying he was compelled to resign due to his pending retirement, despite finding aspects of the council’s report “troublesome.”
Cosgrove tells Law Times in an interview that once the CJC issued its recommendation to the justice minister, “My options were pretty narrow.” While he believes he could have appealed an earlier inquiry committee report at the Federal Court, he says a decision was unlikely before his mandatory retirement took hold in December.
Cosgrove resigned earlier this month after the CJC issued a final report stating that his actions in a late-1990s murder trial led to the conclusion that he “failed in the execution of the duties of his judicial office and that public confidence in his ability to discharge those duties in future has been irrevocably lost.” The decision made him only the second federal judge to meet such a fate.
But the former judge says parts of the CJC’s final report could have been challenged.
The council did not use a set of 32 letters of support written by judges and retired judges, lawyers, and members of the public when coming to its decision, saying they were irrelevant, he notes.
“Personally, I found that difficult because, for example, there were my supervising judges, the senior regional judges in Ottawa since I’ve been here for the last 24 years, all wrote very positive recommendations, and they also were aware of the trial,” says Cosgrove.
“So to say that these letters, the people had no knowledge of what was going on was not accurate.”
Cosgrove also suggests the council should have used the letters from community members when considering whether he had lost the public’s confidence.
“It would seem to me that it’s logical to test what the public’s demeanour is; you ask people who are knowledgeable in the public,” he says.
“And there were a number of letters from people in public office, and they were given little weight, according to the decision.”
Cosgrove’s final criticism is the CJC’s determination that the issue of public confidence was central to its decision. He suggests that it remains unclear what evidence is required to make such a determination.
“So, all of those issues may have given rise for us to challenge,” he says.
“The problem with that is, of course I’m retired - mandatory retirement in December of this year. And the process, for example, dealing with the constitutional issue, took three years.”
He says he did not want to gamble and let the matter play out before Parliament, where an unprecedented joint resolution would have been required to finalize his ouster. Doing so may have proved cumbersome, suggests Cosgrove, with 20,000 pages of evidence likely put forth.
The 74-year-old former judge, who will collect an annual pension of about $170,000, says that before the decision he was reasonably confident that the council would not call for his dismissal. Independent counsel Earl Cherniak, a partner at Lerners LLP, had previously told the council such a stern punishment was not necessary.
“It was shock and disappointment,” Cosgrove says of his reaction to the final decision.
He says he has been dealing with the fallout by responding to media inquiries, and doing the usual things that keep him busy, aside from the judiciary.
“I live in a small community, Brockville, and I’m involved in a number of things: winding up the curling season . . . and then just the ordinary things, like my grandchildren and birthdays,” he says. “We had a get-together here yesterday of 20 or so people for a birthday party. So, life goes on.”
Cosgrove suggests that he would like to apply the planning expertise he gained as mayor of Scarborough in the late 1960s and 1970s by getting involved in similar work in Brockville, where he has lived since being named a judge in 1984.
“Locally, they’re going through a plan review for the community, both land plan and economic planning,” he says. “If I can be involved there in some way, and it’s nothing more particular than that, I would look to offer.”
He says helping out with 10 grandchildren also will take up much of his time.
What he will miss most during his retirement, says Cosgrove, is contributing to the family court system. He got involved in that area of the law after the CJC proceedings kept him from hearing criminal matters.
“I know that during this period up until the past December, I could be doing half a dozen to 10 conferences per day, where I felt I was contributing,” he says.
“And my observation is, you know, our court does a lot of things: we do criminal work, we do bankruptcy work, we do estate work, we do corporate commercial work, but to me the work done by the family court judges is really unheralded for the kind of service they provide to the community. I’ll miss that tremendously.”
Cosgrove offered an analysis of the challenges he faced in the Elliott murder trial, in which his conduct led to a complaint to the CJC in 2004 by then-attorney general Michael Bryant.
Cosgrove says that, because the accused in the case faced a first-degree murder charge, the Crown was forced to prove planning and intention.
“Through the many months and motions, that was what was really the challenge,” says Cosgrove. “The defence angrily resisted any evidence or circumstantial evidence that went towards the issue of planning and whatnot. It was process, and so much of my decision was based upon my rulings of credibility of people who came before me, including, obviously, police.
“So it’s difficult for me to say, ‘Can you go back 10 years and think about how you would have handled a particular witness who you felt, in terms of demeanour and presentation and perhaps conflict with other evidence, whether their evidence was reliable or not.’ I can’t do that, but I can accept what the Court of Appeal said, which was I shouldn’t have offered that I felt that conduct was deserving of contempt process.”
He notes that Julia Elliott eventually pleaded guilty to manslaughter, and Cosgrove says, “I suspect somehow that manslaughter was always on the table.”
Cosgrove’s demise on the judiciary was set in motion when then-attorney general Michael Bryant issued his complaint to the CJC. That move followed the Ontario Court of Appeal’s Dec. 4, 2003, ruling that overturned Cosgrove’s stay of proceedings in the Elliott trial, which he had justified by citing over 150 Charter violations against the Crown.
The appeal court found the Charter violations were either irrelevant or erroneous.
Elliott, a Barbados native, subsequently pleaded guilty to manslaughter in the slaying of 64-year-old Kemptville mechanic Larry Foster.
Cosgrove took a constitutional challenge over the CJC proceedings to the Federal Court in 2005. He won that decision, but the Federal Court of Appeal overturned it and the Supreme Court denied his leave to appeal application.
The CJC inquiry committee resumed its work in September 2008, and in November 2008 issued a report stating that there were grounds for his removal from office. The committee found that Cosgrove’s actions on the trial led to an apprehension of bias, constituted an abuse of judicial powers, and included the use of “rude, abusive, or intemperate language.”
While the former politician and judge has taken a controversial exit from public life, he suggests such a fate comes with the territory.
“When you go into politics or even into the judiciary, these are not contests or a process where you’re looking - for me anyway - downstream to reputation,” he says. “When I ran in municipal life I offered ideas and asked for support, and I was successful. I got involved in the federal process and I was unsuccessful for the first two attempts, successful on the third one.
“You realize that there’s going to be ups and downs, and I’ve had my share of downs.”
Cosgrove says he is comforted by his practice of acting in good faith.
“So I guess that’s my fallback. I’ve always acted in accordance with the process where I thought at the time I was doing what I had to do. In the judiciary, I thought I was doing what my duty required me to do.
“So through the process I guess I’ve learned that it’s not all easy. You have to accept the tough with the good.”
Law Times’ associate editor Robert Todd recently interviewed former Superior Court justice Paul Cosgrove, who retired following a report from the Canadian Judicial Council calling for his ouster. Cosgrove talks about his decision to step down, the case that led to his demise on the bench, and retirement plans. Following is a transcript of the interview.Question: Why did you decide to resign at this point?
Paul Cosgrove: “My options were pretty narrow. With the first rejection by the committee of the judicial council . . . on the Constitutional issue and then the process issue - the Boilard issue - we opted to go to the trial court of the Federal Court, and of course we were successful there on the first round, which was on the Constitutional issue.
So I had that option of going to the Federal Court. For example, in the Matlow case his counsel argued that they could have proceeded with the committee report to the Federal Court, but it was, I’m pretty sure it was decided in the Matlow decision that a judge who feels that there’s some fault with the committee report - whether it’s procedure or whatever, substance - should wait until the CJC does its final report, which is a week past. So, we could have proceeded to the federal trial court.
The areas that were troublesome, I guess legally and personally, first of all, was the argument that the 32 letters of support, my fellow judges, retired judges, lawyers, community people, were given no weight. Personally, I found that difficult because, for example, there were my supervising judges, the senior regional judges in Ottawa since I’ve been here for the last 24 years all wrote very positive recommendations, and they also were aware of the trial. So to say that these letters, the people had no knowledge of what was going on was not accurate. So there was that aspect.
The second aspect was that the committee said there was no chance of me recovering confidence of the public, and yet in the material, in addition to the letters from the judges, there were letters from people in the community. It would seem to me that it’s logical to test what the public’s demeanour is; you ask people who are knowledgeable in the public. And there were a number of letters from people in public office, and they were given little weight, according to the decision.
And then, finally, I guess for the future, if the test is the issue of public confidence, what evidence comes in play there? How do you deal with that? What evidence did they use?
So, all of those issues may have given rise for us to challenge. The problem with that is, of course I’m retired, mandatory retirement in December of this year. And the process, for example, dealing with the Constitutional issue, took three years.
In the meantime, I did a regular shift in the court until the committee report came out in December. But since December, my regular assignment showed me doing about a month up to this time, because I’m supernumerary. So I’ve lost a month that I might have been in the court, and of course I won’t be in the court now, or I wouldn’t be in the court while this matter was again before the Federal Court. So I didn’t want to do that.”
Question: Why didn’t you want to go to Parliament (where the CJC recommended the justice minister seek approval to finalize Cosgrove’s ouster)?
Cosgrove: “Again, there’s no process; it’s never been done before. I was a parliamentarian; I had two portfolios in cabinet. I also was a joint chairman of the Senate Commons committee that, for example, last issued a report on the Senate. So I know somewhat of the process. But there are no rules. There’s nothing in the Judges Act. There’s nothing in parliamentary procedure, because it’s not been done. And my feeling through the whole process was independent counsel Mr. Cherniak, and with his assisting counsel, were the only people who reviewed the 20,000 pages of the transcripts. Even the committee, before whom he appeared initially, the area that they dealt with prior to me giving my apology, was four- or five-thousand pages. So to take 20,000 pages of motions that I went through over that two-year period and place that into a Parliamentary process that is not defined to begin with, I felt is not a productive way and I would not risk that.”
QUESTION: What was your initial reaction when you heard of the CJC’s final recommendation?
Cosgrove: “It was shock and disappointment. I was guardedly optimistic that the arguments that we placed before the judicial council, especially the fact that the independent counsel who was “the guy” on the file, said that a recommendation for removal wasn’t warranted, I was cautiously optimistic that there would be criticism - deserved criticism - but not a recommendation for removal. So I was somewhat shocked and equally disappointed. Obviously it’s been a long time coming.”
Question: How have you been dealing with the decision? What have you been doing to cope with this?
Cosgrove: “In part I’ve been doing what I’m doing right now. Prior to the release of the decision - Chris Paliare, who’s been fantastic and who continues to be fantastic support with his assisting [Cosgrove’s other lawyers] Mr. [Richard Stephenson] and Mr. [Robert] Centa - we’ve had to go through the options and reviews. So I’ve been discussing things with them, but in addition to that, up to this point we felt that Mr. Paliare should respond to press, and I should not directly respond to press while the matter was under process. But now that I’ve made my decision to resign the day after the report came out, I felt that it was time for me to answer questions, as I’m doing now.
And in terms of other things, well, I live in a small community, Brockville, and I’m involved in a number of things: winding up the curling season; we’ve got a church coming up with the Easter time, and then just the ordinary things, like my grandchildren and birthdays. We had a get-together here yesterday of 20 or so people for a birthday party. So, life goes on.”
Question: How do you plan on spending your retirement?
Cosgrove: “I haven’t planned a lot. I put that out of my mind while this process was underway, but on the other hand, I was already involved with the commissioner’s office in terms of the administrative things that you do when you get to mandatory retirement. Mandatory retirement was the end of the year. There’s process, like all the things that you have to do and be concerned about - medical coverage, dental coverage, those kinds of things. So I was already in the process of looking at that.
I’ve indicated that my background and interest in political, public life began as a municipal politician in Scarborough. I was concerned about planning. I, quite frankly, spent 10 years of my life getting the extension of public transit into Scarborough. I also worked at preserving parklands there. So I’m interested in planning. Locally, they’re going through a plan review for the community, both land plan and economic planning. If I can be involved there in some way, and it’s nothing more particular than that, I would look to offer.
I think my big challenge will be helping day to day with grandchildren.”
QUESTION: Looking back at the case that started this all off (R v. Elliott), maybe you can reflect on what happened there, and if there’s any one thing or number of things you wish you had done differently.
Cosgrove: “The trial was a charge of first-degree murder, and I knew that there were pre-trial discussions, and obviously the challenge to the Crown was to prove planning and intention. So the issue was always whether the Crown was going to be able to prove first-degree. As you know, the lady [Julia Elliott] finally pleaded to manslaughter. I suspect somehow that manslaughter was always on the table.
So the big issue was getting the evidence of proof and the case resolved around a situation where there were only two people - she and the deceased person, no witnesses. And so it was all circumstantial.
Through the many months and motions, that was what was really the challenge. The defence angrily resisted any evidence or circumstantial evidence that went towards the issue of planning and whatnot. It was process, and so much of my decision was based upon my rulings of credibility of people who came before me, including, obviously, police. So it’s difficult for me to say, ‘Can you go back 10 years and think about how you would have handled a particular witness who you felt, in terms of demeanour and presentation and perhaps conflict with other evidence, whether their evidence was reliable or not.’ I can’t do that, but I can accept what the Court of Appeal said, which was I shouldn’t have offered that I felt that conduct was deserving of contempt process.
Mind you, I didn’t initiate those contempt processes. What I was doing all the time was responding to defence counsel, who moved literally dozens and dozens of motions.
For example, I feel very badly of the reaction of a brother of the deceased who had a confrontation with defence counsel in a cafeteria. And defence counsel proceeded with a motion for contempt - that the man both literally touched him, bumped him, and made some comments. So defence counsel moved a motion. Well, I heard the motion, and I said, ‘You shouldn’t do that. You’re interfering with a lawyer in the middle of a trial.’ But I didn’t initiate that. I was responding to the motion by defense counsel. But obviously that was perceived by the family of the deceased to be uncaring or not responsive to the tragedy in their family. And certainly it wasn’t intended, I didn’t motivate it, but in retrospect I could have explained that to the family in a way that I did not. That’s just one example of things.
And I know, for example, again on the contempt power, I made a comment that, I think the trial had been ongoing for somewhere close to two years [or] 18 months, and one of the witnesses, a federal lawyer, was not called but sent on a tour. I just couldn’t understand why that was happening, and I made the comment that - I said ‘contempt;’ maybe ‘contemptuous’ was something. I was so frustrated; 18 months and people are not coming to court because they’ve been assigned to something else. I overreacted; obviously I overreacted. So there are examples of things like that.”
QUESTION: What kind of support have you been getting throughout this ordeal from fellow judges, lawyers, or other members of the legal community?
Cosgrove:” If you haven’t done it, I’d invite you to get the record of the 32 letters that were filed on my behalf. I had fantastic support from judges in the east region. Judges outside of the east region - judges from Thunder Bay, from London, Toronto, there are a number of judges, and not only judges that are presently on the court, but judges who have retired from the court. Judges who prior to becoming a judge and retiring, were lawyers in front of me. And the reports have been so supportive, and that support has been so good in terms of continuing to respond to the pressures that I’ve been under.
In terms of lawyers, there are lawyers’ letters from Kingston and Ottawa, Brockville, Smiths Falls. So I’ve had an awful lot of community support, and that continues. Again, which is hard for me, because of the decision of the council, which said that the crux of the decision was that I couldn’t regain the confidence of the public. Again I invite you to look at what was filed on my behalf.”
QUESTION: You have a long history of serving the public, both at the federal government level and municipally in Scarborough, and then moving on to the judiciary. Could you talk a little about what it has been like to spend so much of your time on behalf of the public, and then to have this happen?
Cosgrove: “When you go into politics or even into the judiciary, these are not contests or a process where you’re looking - for me anyway - downstream to reputation. When I ran in municipal life I offered ideas and asked for support, and I was successful. I got involved in the federal process and I was unsuccessful for the first two attempts, successful on the third one. You realize that there’s going to be ups and downs, and I’ve had my share of downs. At the federal level, for example, I had Public Works, which was just a dream because of my municipal background in planning and whatnot. So I’ve been involved in projects right across the country. But at the same time, that’s when interest rates were above 20 per cent, which was awful. It was a process where you looked at people suffering in the community.
So you know that there are ups and downs, good and bad. But I’ll start from the present day, and in apologies in the Elliott thing, I said I acted on good faith. I’ve always acted doing the best that I thought was warranted in what was in front of me. So I guess that’s my fallback. I’ve always acted in accordance with the process where I thought at the time I was doing what I had to do. In the judiciary, I thought I was doing what my duty required me to do.
So through the process I guess I’ve learned that it’s not all easy. You have to accept the tough with the good.”
SUBSEQUENT CALL TO LAW TIMES FROM COSGROVE:
Cosgrove: “During this period that I was doing non-criminal work, or while the process was going on, I was doing a regular stint, regular assignments. Ninety per cent of that was in the family court area, and I don’t think it’s well understood that our family court legal process requires early intervention of a judge. In other words, you can’t file material, you can’t bring motions, you can’t do anything in the court until you have what we call these “conferences” with a judge. When the family court was transferred into our court, the Superior Court, we’ve always been shy of resources in the family court area, and that’s why I felt particularly pleased and useful during the period, to be able to work in family court in the east region . . .
That’s what I’ll miss the most, is being useful in the family court area, because in retrospect economies go up and down. When economies go down, there’s pressure in the family court. People have rough times, they end up in disputes, and they end up in the court. And without having judges available to keep the system going to respond, and it always involves children, it has to be a fast response. I know that during this period up until the past December, I could be doing half a dozen to 10 conferences per day, where I felt I was contributing. And my observation is, you know, our court does a lot of things: we do criminal work, we do bankruptcy work, we do estate work, we do corporate commercial work, but to me the work done by the family court judges is really unheralded for the kind of service they provide to the community. I’ll miss that tremendously. I’ll miss that.”
