The Ontario Judicial Council will hold a hearing after Judge Howard Chisvin dismissed all remaining criminal cases on his docket when the prosecutor was late returning to court.
The Ontario Judicial Council announced this week that a hearing will be held to look into the conduct of Chisvin who is an Ontario Court of Justice judge. The disciplinary hearing is scheduled to begin on Nov. 26 in Toronto.
On July 21, 2011, Chisvin was holding court in Newmarket, Ontario and had recessed court for 20 minutes. When court resumed, the prosecutor was absent. The judge had the Crown Attorney paged, but the prosecutor still did not appear.
The Toronto Star reports Chisvin instructed his clerk to call the Crown's office. He then changed his mind saying it was not his clerk's responsibility to call the prosecutor's office. Less than two minutes after court resumed, Chisvin announced all charges against those who were in court and being prosecuted by the provincial Crown Attorney were dismissed for want of prosecution. Ten individuals who faced a total of 35 criminal charges were allowed to walk free from the courtroom.
Prosecutor Brian McCallion returned to court about eight minutes later. He apologized to the court and said he did not hear the page. The Crown also told Chisvin that he was in his office reading a pre-sentence report. The National Post reports Chisvin as responding, " That might be. 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."
Three complaints were filed with the Ontario Judicial Council. When the council receives a complaint, a two member panel, consisting of a judge and a lay person, review the complaint and determine whether it should go forward.
The Crown took one of the cases and appealed the dismissal for want of prosecution to the Ontario Court of Appeal. On March 13, 2012, the case of Her Majesty the Queen v. Mauro Siciliano was heard. On the same day, the appellate court allowed the appeal, quashed the dismissal for want of prosecution, and restored Siciliano's convictions.
On Jan. 7, 2011, Siciliano pleaded guilty before Chisvin to one count each of uttering threats, possession of property obtained by crime under $5,000, and breach of probation. His sentencing was put over to July 21 and as the sentencing did not take place before the recess, his charges were dismissed.
After reciting what took place in Chisvin's courtroom on that day, the Court of Appeal wrote, "It is clear that the trial judge had no power to make the order he purported to make. 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 highhanded and did a real disservice to the proper administration of justice."
If Chisvin is found to be guilty of judicial misconduct by the Ontario Judicial Council, penalties range from a warning to a recommendation to the Attorney General of Ontario that he be removed from office.