Legal Research

Judicial Council Report on Justice Cosgrove

By Simon Fodden

As reported in the Globe and Mail, among other media outlets, the Canadian Judicial Council has recommended to the Minister of Justice that Justice Paul Cosgrove be removed from office. Pursuant to s.99 (1) of the Constitution Act, 1867:

…the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons.

The Judicial Council’s full report is available in PDF and there is a summary on the Council’s website.

The Council acts under the authority of the Judges Act R.S., 1985, c. J-1, and under s.65 the Council “may recommend [to the Minister] that the judge be removed from office” where:

…in the opinion of the Council, the judge … has become incapacitated or disabled from the due execution of the office of judge by reason of
(a) age or infirmity,
(b) having been guilty of misconduct,
(c) having failed in the due execution of that office, or
(d) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of that office…

The decision of the Council rested on a finding of misconduct on the part of the judge, but at the end of the report the Council addressed the issue of whether a judge could be removed for incompetence and concluded:

In light of our earlier conclusion, we need not address whether incompetence could justify removal from office. The Judges Act refers in section 65 to a judge who ?has become incapacitated or disabled? (in the French version ?est inapte?). We are of the view that whether incompetence can be a ground for removal from office, in any given case, would best be dealt with another day, when the issue is more directly raised.

Full post as published by Slaw.ca on April 02, 2009 (boomark / email).