Judge blames stress for tossing out charges over small delay

An Ontario judge who tossed out several criminal cases after a prosecutor was minutes late blames personal stress for his actions.

The Ontario Judicial Council is set to deliver a decision this afternoon on what punishment it should deliver against Ontario Court Justice Howard Chisvin.

Chisvin dismissed 33 charges against 10 people who were either waiting to plead guilty or be sentenced in his Newmarket courtroom on July 21, 2011 after the Crown attorney was minutes late coming back from a break.

A judicial council panel heard today that the Ministry of the Attorney General had to use significant resources to bring all those people back before the court and resolve their cases properly.

At a hearing today, Chisvin’s lawyer said the judge was dealing with personal issues at the time and after realizing his mistake on the same day he took a two-week stress leave.

Chisvin didn’t specify what those issues were, but told the hearing he very much regrets that day and wants to “rededicate” himself to serving the public and the administration of justice.

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.

Marie Henein, acting as counsel for the judicial council, recommended some combination of the above possible penalties short of having him fired.

Chisvin’s lawyer, Brian Greenspan, suggested a warning and a reprimand would be sufficient as Chisvin has already shown remorse and has taken steps to address his issues.

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

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

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.

“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.”

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