Judge apologizes for botched 1998 murder trial; However, he may still be removed from the bench; his peers say his conduct amounts to more than a few erroneous findings of fact

A sad story but fortunately very rare.

The Globe and Mail
Thu 11 Sep 2008
Page: A4
Section: National News
Byline: Kirk Makin
Source: JUSTICE REPORTER

Ontario Superior Court Judge Paul Cosgrove shocked a rare disciplinary inquiry yesterday by delivering an abject, 11th-hour apology for botching a rancorous 1998 murder trial.

However, a Canadian Judicial Council panel hearing his misconduct case promptly fired back a curveball of its own, saying that it will continue hearing evidence that could result in the removal of Judge Cosgrove from the bench.

"What is he apologizing for?" British Columbia Chief Justice Lance Finch, chairman of the panel, asked sharply. "Does the judge characterize this as being strictly an error, or as judicial misconduct? What I don't understand is whether he has acknowledged judicial misconduct."

As a result, far from drawing to a close today, the inquiry will hear from several witnesses affected by Judge Cosgrove's erratic behaviour at the murder trial of Julia Yvonne Elliott - including senior Crown counsel and a police officer.

Judge Cosgrove explained in his apology that he found himself surrounded at the Elliott trial by hard-driving lawyers engaged in open warfare. He said that it all added up to him making many poor judgment calls.

"I stand before you humbled and chastened," he said, his voice quavering slightly. "I have thought about that trial virtually every day for 10 years. It was like nothing I'd seen before - or since. At times, I lost my way.

"In particular, I regret any intemperate, denigrating or unfair language I may have used in what was the most stressful trial of my career," Judge Cosgrove said.
In staying Ms. Elliott's murder charge, Judge Cosgrove cited 150 breaches of her Charter rights by police and Crown officials - including senior officials who played virtually no role in the case.

Judge Cosgrove, his lawyers and CJC commission counsel Earl Cherniak were clearly taken by surprise yesterday when the panel elected to press ahead, rather than swiftly wrapping up the inquiry.

Mr. Cherniak had suggested after Judge Cosgrove's apology that his apparent sincerity meant that he no longer deserved the extreme punishment of removal from office. A "strong and pointed admonition" from the entire CJC would suffice, Mr. Cherniak suggested.
However, Chief Justice Finch remarked that Judge Cosgrove's sins amounted to much more than a few erroneous findings of fact. Instead, the judge made "many, many findings of deliberately dishonest conduct by various people," Chief Justice Finch said.

He also voiced suspicion about the timing of Judge Cosgrove's change of heart:

"There has been a significant expenditure of public money in the process. As far as I can see, nothing has changed between then and now."
Alberta Chief Justice Allan Wachowich also expressed skepticism, wondering aloud why Judge Cosgrove's "epiphany" did not come years earlier.

"It would have been better for all concerned - including the public purse - if the apology had been made earlier," Mr. Cherniak agreed.

Judge Cosgrove's apology also contained a highly unusual offer - to refrain from ever presiding over another case involving the Crown if the CJC would permit him to remain on the bench, which would effectively preclude him from hearing criminal cases or anything else in which the Crown had a role.

His apology came six days into the hearing, which is aimed at determining whether he harboured bias against the Crown.

Attorney-General Michael Bryant lodged a complaint about the judge's conduct with the CJC in 2004, shortly after the Ontario Court of Appeal ordered a retrial of the Elliott case and repeatedly singled out Judge Cosgrove for criticism.

Judge Cosgrove said yesterday that, while he has come to accept the stinging Court of Appeal judgment without reservation, it failed to dislodge his abiding belief that he had kept an open mind and had done his best to conduct the Elliott trial fairly.

"It is evident to me now that I did not intervene often, or forcefully, enough,"

Judge Cosgrove said. "With hindsight, my attempts only met with modest success."

Judge Cosgrove added that there is no more "traumatic ordeal" a judge can have than to face removal after a searing public hearing convened by his peers.

"Aside from my family and my faith, being a judge is the most important thing in my life," he said.
James Morton
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