Law Times - Newsmakers

Dec 2008 Newsmakers

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news Matlow and Cosgrove BY NEAL ADAMS T he Canadian Judicial Council has spent the majority of 2008 deciding the fate of two Superior Court Justices who faced separate inquiries into their conduct. Toronto Superior Court Justice Ted Matlow, 68, apolo- gized before the CJC in July of this year humbled by the events that led up to his inquiry. In 2005, Matlow decided to sit on a panel com- prised of three judges who unanimously opposed the SOS case, a City of Toronto development proposal that would provide a street car right-of- way on St. Clair Avenue. In 2006, City of Toronto solicitor Anna Kinastowski made a formal com- plaint alleging a conflict of interest existed within the decision. Due to his involvement with a com- munity group called Friends of the Village, which had fought against another development pro- posal, the Thelma Project, Kinastowski alleged the veteran judge should have steered clear of any connection to the SOS case. In May, an inquiry committee report led by Newfoundland Chief Justice Clyde Wells, agreed, finding Matlow's conduct "so mani- festly and totally contrary to the impartiality, integrity, and independence of the judiciary that the confidence of individuals appearing before the judge, or of the public in its justice system, have been undermined, rendering the judge incapable of performing the duties of his judicial office." The report found the council should rec- ommend the federal justice minister draft a resolution asking Parliament to remove him. By refusing to recuse himself from the SOS case, Matlow, "failed in due execution of the office of the judge," said the report. Matlow further was found guilty of misconduct for repeated complaints in October 2005 against the city by presenting the media with docu- ments a day prior to joining the SOS panel. In July, 21 chief and associate chief justices of Canada's superior courts were present as the 26-year veteran judge appealed the committee's decision and apologized for embarrassing him- self and the council through his conduct. Finally, this month, in a report to the min- ister of justice, they recommended he not be removed from the bench. Their report said, while the majority held the view Matlow has "been guilty of misconduct, the test for recom- mending removal had not been met. " Meanwhile, Matlow had been barred from 12 December 2008 exco_LT_Survey_Dec11_06.indd 1 11/29/06 1:41:01 PM hearing cases since April 2007, something he said has been difficult to accept. He said his job as a judge has been central to his identity, and noted that as a supernumerary he continued to work during evenings and on weekends. Ontario Superior Court Justice Paul Cosgrove, 73, responded to accusations of mis- conduct through his lawyer Chris Paliare. The CJC inquiry into Cosgrove's conduct stems from a request in April 2004 by then- Ontario attorney general Michael Bryant, who alleged the administration of justice suffered a serious blow in Cosgrove's ruling in the 1997 R. v. Elliott murder trial. In 1999, Cosgrove stayed proceedings in the case, citing unreasonable delays among a series of 150 Charter breaches by police and Crowns. Cosgrove's ruling was overturned in 2003 by the Ontario Court of Appeal, which also ordered a new trial. The appeal court asserted Cos- grove "made numerous legal errors as to the application of the Charter," on top of assigning "findings of misconduct against Crown counsel and police officers that were unwarranted and unsubstantiated." Paliare said Cosgrove faced "extraordinary" circumstances by overseeing a case which compelled him to issue "novel and complex" rulings, and that nothing in his 24 years of service could prepare him for Elliott. Several years of legal back-and-forth fol- lowed. In 2005, the Federal Court agreed the attorney general's request for an inquiry was unconstitutional because it lacked an initial screening by the CJC, as challenged by Cos- grove. However, the Federal Court of Appeal sided with the attorney general and over- turned that decision last year. Cosgrove suffered a severe setback when he was denied an application for leave to appeal by the Supreme Court of Canada in November 2007, as well as an application for judicial review by the Federal Court in August of this year. The inquiry committee completed its review on Sept. 12, and has since concentrated its efforts on a report that will give a recommendation on whether Cosgrove should be removed from judi- cial office. If the report should find grounds for his removal, the council will prepare and issue a recommendation to the minister of justice, specifying whether or not Cosgrove should be ejected. From there, a judge may only be ousted by a joint resolution from Parliament. fight to stay on bench Two judges under attack in what used to be rare type of inquiry

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