Law Times

PAGE 4 NEWS April 6/13, 2009 • lAw Times Resignation ends Cosgrove's five-year battle Continued from page 1 University of Toronto Faculty of Law Prof. Lorne Sossin, who teaches ethics and professionalism, says the CJC has set a diffi cult prec- edent to uphold with the decision. "It puts them in the position of having to — and it seems to me just inherently subjective — assess when the apology will restore public confi dence and going to be very diffi cult to predict, once there's an apology, whether it is or isn't going to be suffi cient to restore public confi dence." Sossin says this approach will prove diffi cult for the CJC to sus- tain in the long run, particularly as it has previously found apologies to mitigate serious misconduct. Th e complaint against Cos- grove was issued on April 22, These errors went far beyond the types of errors that can be readily corrected by appellate courts. when it won't. And of course they do this in a completely non- empirical way. Th ey do nothing to assess how the public is in fact reacting; it's themselves in their radar for this principle of public confi dence that's at issue. "It introduces an element of uncertainty and challenge for maintaining coherence. And this is a particularly diffi cult exercise to begin with — deciding when misconduct is signifi cant enough to warrant removal. But it's now 2004, by then-attorney general Michael Bryant. Th at was about two months after the appeal pe- riod ended following the Ontario Court of Appeal's Dec. 4, 2003, decision to overturn a stay of pro- ceedings in the Julia Elliott mur- der trial, which Cosgrove presided over from 1997 to 1999. Th e appeal court found that the bulk of over 150 Charter vio- lations cited by Cosgrove against the Crown were erroneous. Th e court found that any relevant Charter violations were taken care of before the trial would have started and that Cosgrove mis- applied the Charter, made "unwar- ranted and unsubstantiated" mis- conduct fi ndings against the Crown and police, misused his contempt powers, and allowed investigations into areas not relevant to the case. Th e appeal court set aside the stay of proceedings and ordered a new trial. Elliott, a Barbados na- tive, subsequently pleaded guilty to manslaughter in the slaying of 64-year-old Larry Foster. She received a seven-year sentence. Cosgrove took a constitu- tional challenge over CJC pro- ceedings in 2005 to the Federal Court. He won that decision, but the Federal Court of Appeal later overturned the lower court decision, and the Supreme Court rejected his leave to appeal appli- cation in November 2007. Th e CJC inquiry committee resumed in September 2008, and found the following in terms of Cosgrove's conduct at the Elliott trial: • an inappropriate aligning of the judge with defence coun- sel giving rise to an apprehen- sion of bias; • an abuse of judicial powers by a deliberate, repeated, and unwar- ranted interference in the pre- sentation of the Crown's case; • the abuse of judicial powers by inappropriate interference with RCMP activities; • the misuse of judicial powers by repeated and inappropriate threats of citations for con- tempt or arrest without foun- dation; • the use of rude, abusive, or in- temperate language; and • the arbitrary quashing of a federal immigration warrant. Four out of the fi ve inquiry committee members found that the conduct meant that Cosgrove had "rendered himself incapable of executing the judicial offi ce." Th e CJC convened in March 2009 to hear Cosgrove's response to the inquiry committee's fi ndings. Paliare urged the council against ousting the judge. He said letters of support for Cosgrove, the fact that he sat as a judge without incident for over four years after the Elliott trial, and a statement of regret and apology should be enough to merit a less serious sanction. But the council found that, "Th ese errors went far beyond the types of errors that can be readily LT Tax raises concerns Continued from page 1 of family law issues — such as marital breakdown and fam- ily violence — will rise, criminal charges will increase, and em- ployment-related questions will go up during the recession. "What that means is that those people will need to avail them- selves of legal services," says Trim- ble. "For some people, that eight- per-cent diff erence, if it's levied on legal fees, will be that tipping point and they will not be able to aff ord legal services. Or services that they need, to the extent that they need, to protect their rights." 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"If the harmonization works out such that the PST is now part of the HST and hence lev- ied, it means that the amount of money that is put into legal aid is now less eff ective, because some of that money . . . goes back into the consolidated revenue fund because of the PST portion of the HST," says Trimble. Tax lawyer Paul Carenza, a partner at Ogilvy Renault LLP, says the govern- ment has a few options on how to proceed with the concerns over added taxation of legal services. "It can do nothing and just let the 13 per cent apply," he says. "Alternatively, it can provide some form of exemption if it felt it was worthwhile to do so for in- dividuals. But I think that would be very cumbersome to apply." Another option, says Carenza, would be aimed at ameliorating concerns over access to justice. He suggests that legal aid mea- sures could be tweaked to ensure that individuals who can't aff ord a lawyer because of the added tax can get some form of help. Trimble notes that "it's early in the day," and the budget will go to the committee stage follow- ing fi rst reading in the legislature. "We will be addressing those sorts of concerns," he says, adding that the OBA will take no offi cial position on the budget measures until hearing from its members. "We're consulting internally. 1.800.263.2037 Canada Law Book is a Division of The Cartwright Group Ltd. www.lawtimesnews.com Bestcase-reduce costs (LT 1-2x4).indd 1 4/1/09 2:19:51 PM LT0406 We have 35 practice sections, all of whom may have a diff erent view on the subject," says Trimble. "Our position is, we have some concerns, let's chat." Ministry of the Attorney Gen- eral spokesman Brendan Crawley didn't directly answer questions regarding the potential impedi- ments to access to justice caused by the added tax on legal ser- vices. He instead pointed to the AG's eff orts at "reaching decision points sooner, and eliminating LT

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• The Dirt
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