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newsmakers Cosgrove exits before being removed BY KELLY HARRIS public confidence was central to its deci- sion, saying it was unclear what evidence they based that determination on. On this point, Cosgrove said these issues could have led to a legal challenge; how- ever, such a challenge would have been almost pointless. "The problem with that is, of course, 'You realize that there's going to be ups and downs, and I've had my share of downs.' W I'm retired — mandatory retirement in December of this year. And the process, for example, dealing with the constitutional issue, took three years," he said. Such a gamble would also have meant a ith an annual pension of $174,000 and the dubious distinction of being only the second judge the Canadian Judicial Council has decided to ouster, former Ontario Supe- rior Court justice Paul Cosgrove stepped down from the bench in 2009. An inquiry into Cosgrove's conduct stemmed from a 2004 request by then- attorney general Michael Bryant. In 1999, Cosgrove stayed proceedings in the murder trial of R. v. Elliott, citing unreasonable delays and a litany of Charter of Rights and Free- doms breaches by police and prosecutors. The ruling was overturned in 2003 by the Ontario Court of Appeal. In overturning Cosgrove's ruling, the appeal court found the former judge "made numerous legal errors as to the application of the Charter." In addition, it said Cosgrove made "findings of misconduct against Crown counsel and police officers that were unwarranted and unsubstantiated." Cosgrove won a constitutional challenge to the judicial council proceedings at the Federal Court in 2005. The decision was overturned by the Federal Court of Appeal, and later the Supreme Court of Canada denied his application for leave to appeal. In September 2008, the judicial council resumed its work, finally issuing a report that there were grounds for Cosgrove's 6 December 2009 ouster in November 2008. In April, Cosgrove told Law Times it was his pending retirement and not the call for his ouster that led him to step down from the bench. In a rare interview following the judicial council's decision and his subse- quent retirement, Cosgrove said he found the report "troublesome" but was left with very few options. The review found Cosgrove "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." In reaching the finding, the judicial council disregarded 32 letters of support written by lawyers, judges, retired judges, and members of the public because it found they were not relevant. Cosgrove, only the second federal judge to meet such a fate, told Law Times he found that part of the decision hard to take. "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 [writing] very positive recommendations and they also were aware of the trial," he said. "So to say that these letters, the people had no knowledge of what was going on was not accurate." Cosgrove also criticized the judicial council's characterization that a lack of final decision would have come from Par- liament requiring an unprecedented joint resolution based on 20,000 pages of evi- dence. Cosgrove said that prospect would have been cumbersome. The former judge and politician exited from public life in early April, thereby avoiding the possibility of becoming the first judge in Canadian history to be voted out of office by Parliament. "When you go into politics or even into the judiciary, these are not contests or a pro- cess where you're looking — for me, anyway — downstream to reputation," he told Law Times. "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." When he looked back on his public career starting as a municipal politician in Scarbor- ough in 1973 that progressed to a seat in the House of Commons in 1978 and later a cabi- net post before his appointment to the bench in 1984, Cosgrove said he was 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 pro- cess, I guess I've learned that it's not all easy. You have to accept the tough with the good."