Attorney General Michael Bryant seems determined to end Justice Paul Cosgrove's career.
The AG has asked the Canadian Judicial Council to conduct an inquiry into Justice Cosgrove's fitness to remain on the bench.
This former mayor of Scarborough, who became a judge in 1984, has on occasion been a sharp critic of government action. In 1999 he stayed murder charges against Julia Elliott, citing over 150 violations of Elliott's rights under the Charter Of Rights. I suspect this is a Canadian record. In his decision, the judge cast aspersions on the character of dozens of police officers and prosecutors.
The Crown appealed, and in 2003 the Ontario Court of Appeal overturned the stay of proceedings, finding that Justice Cosgrove's conclusions about perjury, witness tampering, non-disclosure and false and misleading misrepresentation were "troubling," "unwarranted," "peculiar" and "without foundation." Even Elliott's new lawyer on the appeal conceded that the judge's findings were without merit.
In documents filed with the Judicial Council, the Attorney General accuses Cosgrove of "vilifying the state."
Any person can complain to the Judicial Council. But when an Attorney General makes the complaint, an inquiry is mandatory without the conventional screening.
A few weeks ago, the Federal Court ruled that the Judges Act is unconstitutional in giving a provincial Attorney General the right to compel an inquiry when that right is not generally available to others. (The Attorney General's office has announced its intention to appeal.)
I don't know if Justice Cosgrove is an unfit judge or if he's merely a thorn in the side of government. But I do know that there are very good reasons why it is extremely difficult to remove a judge - the constitutional principle of judicial independence, which guarantees financial security and security of tenure to ensure that the government does not interfere with judicial decision-making.
No one would question invoking the formal process for removing a judge when it comes to judges who are drunk while presiding, who fall asleep or who sleep with jurors. These are clearly bad judges.
But presumably the removal process would not be invoked simply because the government of the day does not agree with a judge's decisions. There will always be an appearance of political interference with judicial independence whenever a complaint about a judge revolves around the merits of his/her decisions and the complaining party is the government.
Judicial errors have been responsible for wrongful convictions, and it's fairly common to find appellate courts ordering new trials or acquittals in cases where judges have made patently obvious legal errors. I don't, however, remember any of these judges being dragged before the Judicial Council.
When judges are appointed, or, on the rare occasion, removed from the bench, it's important to consider the elusive question of what qualities and characteristics are needed to achieve excellence, or just competence, as a judge. But the process of appointing judges is not very transparent in setting out any criteria for the type of person who can discharge the solemn obligation of judging others.
Judges are appointed by the federal Minister of Justice with little public scrutiny and fewer questions asked. The Canadian judicial appointment is bureaucratic and private almost to the point of invisibility. We know so little about our judges. Few Canadians can name any of the nine judges currently sitting on our Supreme Court.
Historically, most judicial appointments in Canada have been gifts of patronage, friends of the government rewarded by being elevated to the bench in the twilight years of their legal careers.
In the past two decades, a more concerted effort has been made to move from patronage to a committee-based assessment of merit, but no one has really defined merit.
Despite the enormous power and independence we vest in our judges, there is no consensus or clarity on what it takes to be a good judge.
Being a lawyer, usually for a minimum of 10 years, is the only real prerequisite for elevation to the bench. There is no specialized training. There is no judge school. From a narrow perspective, weighing facts and interpreting rules are the primary skills needed. This would be the bare minimum needed for competence. But who you know is still as important as what you know.
When our federal and provincial governments first started moving toward committee-based assessment of merit, I found a job advertisement posted in the law reports for a criminal trial judge in Toronto. It contained a list of the professional and personal characteristics the advisory committee was searching for. I had never seen an advertisement like this before, and it quickly disappeared, never to surface again.
Under personal characteristics, the ad listed "an absence of pomposity and authoritarian tendencies" and "an ability to make decisions." At least we know that indecisive little Hitlers need not apply.
But in terms of real qualifications, the ad falls short. It speaks of "an interest and some aptitude for the administrative aspects of a judge's role," but the ad never suggests that the applicant should have even mastered the basic skills of deciphering the sacred text of the Criminal Code and weighing competing facts.
In fact, the ad suggests that people with no experience whatsoever in the world of criminal justice will be considered: "Experience in the field of law relevant to the division of the Provincial Court on which the applicant wishes to serve is desirable but not essential."
Considering that this judge upon appointment can issue search warrants to invade your home, order suspects detained prior to trial, order psychiatric assessments and hospitalization, send people to jail, even for life, it is bizarre that the government would not consider experience in the field of criminal law absolutely essential.
Yet lawyers who have spent their careers closing real estate deals or reviewing corporate mergers are presently masquerading as criminal court judges.
These lawyers had probably never met an accused person or spent a minute in a prison, and they probably believe all cops tell the truth.
Watching the battle between Justice Cosgrove and the Attorney General unfold makes one thing abundantly clear. Candidates lacking experience and knowledge are preferred to those who rock the boat. Bold critics need not apply.
Alan Young is a law professor at Osgoode Hall. His column appears every other week. firstname.lastname@example.org