The 'oy veh' judge!

Ontario judge reprimanded for freeing defendants because prosecutor was late

Sara Boseveld

Monday, March 19, 2012

Judge Howard Chisvin waited 3.93 minutes for the prosecutor before calling it quits and setting free 12 people, all of whom had already pleaded guilty to their charges or were intending to do so. (Don Healy/Postmedia News)


An Ontario judge who acquitted a group of criminals because the crown attorney was late returning from a break has received a strongly worded reprimand for his actions from the province’s highest court.

Newmarket court Judge Howard Chisvin had “no power” to release the criminals with an acquittal simply because prosecutor Brian McCallion was late returning to court after a 20 minute recess, the Ontario Court of Appeal said in their decision released Monday.

“It was illegal and an abuse of judicial authority,” three appeal court judges wrote in their decision.

 “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.”

The trial for Mauro Siciliano, who had pleaded guilty to three charges including uttering a threat, possession of stolen property valued at less than $5000 and breach of probation, had just resumed after a 20 minute break when the judge saw Mr. McCallion was still absent. Judge Chisvin told his clerk to notify the prosecutor that if he didn’t return to the courtroom in a minute, all remaining provincial matters on the trial judge’s list for the day would be dismissed. Twenty-four minutes later, the judge followed through on his promise and nixed all matters on his list, including those of Siciliano, who had been scheduled for sentencing that day.

About eight minutes later, Mr. McCallion returned to the courtroom and apologized to the judge, saying he had spent the past 20 or so minutes reading a pre-sentence report he had only just received. To this, Judge Chisvin said “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,” according the the appeal court decision.

Mr. McCallion appealed and no one came to represent Judge Chisvin in the Ontario Court of Appeal, though there was sufficient evidence to prove he was aware of the appeal hearing. Mr. Justice David Doherty, Madam Justice Susan Lang and Madam Justice Gloria Epstein accepted the appeal and quashed the order by Judge Chisvin.

Each person to receive an acquittal that day and who pleaded guilty received convictions and were found guilty.