An Ontario judge has been severely reprimanded by the province’s highest court for freeing a group of criminal defendants in a fit of pique over a tardy prosecutor.
In a ruling today, the Ontario Court of Appeal said that, quite apart from the inappropriate nature of what he did, Ontario Court Judge Howard Chisvin had not even had the power to order the defendants freed.
“It was illegal and an abuse of judicial authority,” the court said. “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 highhanded and did a real disservice to the proper administration of justice.”
Judge Chisvin took the drastic action on July 21, 2011, after a prosecutor failed to return to the courtroom promptly following a break. He told his clerk to notify the prosecutor that if he didn’t show up within one minute, all remaining cases on that day’s trial list would be dismissed.
Minutes later, he made good on his threat. The accused included a spouse charged in a domestic abuse case, a disbarred lawyer charged with fraud and a robbery suspect.
In several instances, the defendant had already pleaded guilty and was awaiting sentencing.
The prosecutor, Brian McCallion, reappeared eight minutes later, apologized, and said that he had been in his office reading a pre-sentence report he has just received.
“That might be,” Judge Chisvin said. “Court comes when court is back. 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 Ministry of the Attorney-General quickly appealed and launched a complaint with the Ontario Judicial Council. It also made efforts to bring several of the individuals back before the courts.
In the specific case that went before the Court of Appeal, Mauro Siciliano had pleaded guilty to charges of uttering a threat, possession of stolen property valued at less than $5,000 and breach of probation.
In their ruling, Mr. Justice David Doherty, Madam Justice Susan Lang and Madam Justice Gloria Epstein substituted convictions for the acquittals that Judge Chisvin had registered. They sent the matter back for sentencing before the trial judge who had originally heard Mr. Siciliano’s guilty plea.
Judge Chisvin is generally perceived as competent but hard on the Crown at times. In a 2009 incident, he aroused the ire of the Ministry by staying nine criminal charges against a defendant, Davood Zarinchang, because Mr. Zarinchang had spent 24 days in jail without getting a bail hearing.
Judge Chisvin ruled Mr. Zarinchang should have been given a hearing within 24 hours of his arrest. He awarded the man $12,000.
The Court of Appeal reversed that decision as well, ordering a new trial for Mr. Zarinchang on domestic assault. It ruled that Judge Chisvin had failed to adequately balance the interests of a trial for the accused with the interests served by a granting of a stay of charges.