Law Times

PAGE 4 NEWS April 20, 2009 • lAw Times Cosgrove will miss family court system Continued from page 1 doing the usual things that keep him busy, aside from the judiciary. "I live in a small community, Brock- ville, 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 grand- children also will take up much of his time. What he will miss most during his retirement, says Cosgrove, is contribut- ing 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 do- ing 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 com- mercial work, but to me the work done by the family court judges is really un- heralded 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 mur- der 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 ac- cused in the case faced a first-degree mur- der charge, the Crown was forced to prove planning and intention. "Through the many months and mo- tions, that was what was really the chal- lenge," says Cosgrove. "The defence angrily resisted any evidence or circumstantial evi- dence that went towards the issue of plan- ning 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 particu- lar witness who you felt, in terms of de- meanour 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 Cos- grove says, "I suspect somehow that man- slaughter was always on the table." Cosgrove's demise on the judiciary was set in motion when then-attorney gen- eral Michael Bryant issued his complaint to the CJC. That move followed the On- tario 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, subse- quently pleaded guilty to manslaughter in the slaying of 64-year-old Kemptville mechanic Larry Foster. Cosgrove took a constitutional chal- lenge over the CJC proceedings to the Federal Court in 2005. He won that deci- sion, but the Federal Court of Appeal over- turned 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 intemper- ate 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 reputa- tion," 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 unsuccess- ful 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 al- ways acted in accordance with the pro- cess 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 re- quired 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." — Go to www.lawtimesnews.com to read a transcript of the interview. LT Ottawa office has stable of high-profile talent Continued from page 1 goal the firm established several years ago when it adopted a busi- ness model that included an elected board, along with a chairman and chief executive officer to manage McCarthys on a national basis. Henry Brown, partner at the Ottawa office of Gowlings, says it is his understanding McCarthys may be ready to close its Ottawa branch because the city's economy, largely dependent on the govern- ment, cannot provide the larger clients and billing opportunities that firm seeks. "The Ottawa market is very dif- ficult to get half-a-million or mil- lion-dollar-a-year clients," Brown tells Law Times. "Most of us work on large numbers of smaller clients and that does not meet the stra- tegic model that McCarthys has chosen for itself." Boake denies that is the case. "It is incorrect to say that the review of the Ottawa office is based on revenue," she tells Law Times. "In fact, neither rev- enue nor the current economic your ERGONOMIC PRODUCTIVITY source Innovative ideas in workplace comfort Neutral Posture 8500 Wills and Powers of Attorney are important personal documents. Ergonomist Dr. Jerome J. 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"Our strategy is based on the types of work and clients we as- pire to act for. These clients can come from a range of markets. We are interested in the nature and complexity of the work mat- ter and not simply the size of the client. A simple example of this is that the firm no longer does resi- dential real estate work." Tom Conway, a partner at Mc- Carthys in Ottawa, said he and other partners at the office could not comment on the review. Conway is one of several high-profile lawyers in the office. An active bencher with the Law Society of Upper Canada, he represented former Conservative Alan Riddell in a defamation suit against Prime Minister Stephen Harper and the Conservative party. Harper and Riddell settled the action out of court. Another high-profile partner U PREFERRED SUPPLIER E www.lawtimesnews.com 4/15/09 10:44:44 AM at the Ottawa location is Barbara McIsaac, counsel for Elections Can- ada in a two-year-old Federal Court battle with the Conservative party. McIsaac, who has been named to a list of special advocates to act for accused people in sensitive na- tional security and anti-terrorism cases, will likely be able to con- tinue her role as counsel for Chief Electoral Officer Marc Mayrand if she moves to a new firm. McIsaac also served as coun- sel for the federal government in a judicial inquiry into the U.S. rendition of Canadian citizen Maher Arar to Syria, where he was tortured, and counsel for an inquiry into the 1992 death of a Somali citizen at the hands of a Canadian soldier. Former Liberal deputy prime minister John Manley is counsel with the firm, but has desks at both the Ottawa and Toronto offices. An Ottawa lawyer says most of the partners at the McCarthys' Ot- tawa office have been "shopping themselves around" as they seek new positions. The lawyer said he expects the office to close by June or the end of 2009 at the latest. While other firms have also felt the pinch, Blake Cassels & Graydon LLP chairman Brock Gibson says Canadian law firms have not been hit as hard as law- yers in the United States and the United Kingdom. "The financial crisis that has hit directly New York and Lon- don, being financial centres of the world, and the financial in- stitutions based there, has not hit to the same degree in Canada, primarily because of the strength of the financial institutions in Canada," Gibson, a partner at Blakes, tells Law Times. He says the firm has experi- enced layoffs that were the result of routine reviews all law firms go through and unrelated to the economy. Jolliffe tells Law Times the layoffs in New York were also the result of a highly leveraged prac- tice model where firms employed teams of associates to perform le- gal work obtained by individual partners. As the financial crisis hit, the work that brought in billings to pay for those teams evaporated. Jamie Trimble, president of the Ontario Bar Association, tells Law Times the economic climate may nonetheless force firms to shift toward "contractor model" relationships with associates as opposed to "employment model" relationships. "That gives them more free- dom and more economic options than an employment contract," he says. LT a D Y I n E 9 p N d & 9 C n D m R a 1 H a n A M S a 8 W e ' r e y C i o a

• Cover
• Fight Over Fees
• Financial Matters
• Focus On ADR/Mediation