Judge who dismissed cases over tardy prosecutor goes before disciplinary hearing

Allison Jones, The Canadian Press

TORONTO - An Ontario judge who threw out several court cases — including some convictions — after a prosecutor was minutes late is expected to plead his own case today.

The Ontario Judicial Council is set to hear the case of Ontario Court Justice Howard Chisvin, who dismissed the criminal charges against 10 people who were either waiting to plead guilty or be sentenced.

Chisvin made the call in his Newmarket courtroom after the prosecutor was minutes late coming back from a break last year.

Ontario's Court of Appeal earlier this year declared Chisvin's actions to be "illegal" and "an abuse of judicial authority."

The disciplinary panel can either dismiss the complaint, give Chisvin a warning or a reprimand, order him to undergo training, suspend him with or without pay or it can recommend to the Attorney General that Chisvin be removed from office.

Disciplinary hearings for judges are quite rare, and it's even rarer for judicial councils to recommend a judge lose his or her job.

The hearing in Toronto will be chaired by an appeal judge and include a judge, a lawyer and a community member.

The Appeal Court addressed Chisvin's dismissals in the case of Mauro Siciliano, who was awaiting sentencing after pleading guilty to uttering a threat, possession of stolen property and breach of probation.

When the judge returned to court after a 20-minute break — and the Crown was not there — he sent word to the prosecutor that if he was not there in a minute, all remaining cases would be dismissed.

Efforts were made to contact the prosecutor but two minutes later, the trial judge dismissed all the day's remaining matters for want of prosecution, including Siciliano's.

Crown attorney Brian McCallion returned about eight minutes later. He apologized to the judge, saying he'd been in his office reading a pre-sentence report he had just received.

"That might be. Court comes when court is back," Chisvin replied, according to the Appeal Court ruling.

"You were paged. You were paged in the hallway, the Crown's office was called, no Crown. They're dismissed for want of prosecution."

The Crown appealed and the court sided with the prosecutors, substituting convictions for acquittals based on Siciliano's guilty pleas and calling the judge's actions "high-handed."

"It is clear that the trial judge had no power to make the order that he purported to make," the court said.

"It was illegal and an abuse of judicial authority. Furthermore, even if the power existed, there was no basis upon which to make the order on the facts of this case. The trial judge's actions were high-handed and did a real disservice to the proper administration of justice."

Asked about the outcome of the dismissed cases, a spokesman for the Attorney General said "the Crown took steps to ensure that all matters were brought back before the court," but declined to comment further.

Chisvin was appointed to the provincial court bench in 2004 by then-attorney general Michael Bryant.

Chisvin will be represented at his hearing by high-profile lawyer Marie Henein, who also represented Bryant when he was charged with criminal negligence causing death and dangerous driving in the 2009 death of a Toronto cyclist. Those charges were ultimately withdrawn when the Crown said it had no reasonable prospect of conviction.