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Toronto Star

Judge faces disciplinary hearing for throwing out tardy Crown’s cases

Published on Thursday October 18, 2012

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Curtis Rush
Staff Reporter

The Ontario Judicial Council has ordered a hearing for Nov. 26 that could lead to the removal of controversial Newmarket Judge Howard Chisvin, who threw out a slate of cases last year when an assistant Crown attorney was late returning from a break.
The announcement of the hearing, to be held at a Bay St. hearing room, comes months after the Ontario Court of Appeal ruled that Chisvin’s actions on July 21, 2011 were “high-handed” and did a disservice to the administration of justice.
A week after Chisvin’s dismissal of the cases, chief prosecutor John Ayre complained about his conduct to the Ontario Judicial Council.
In March 2012, the Court of Appeal overturned Chisvin’s ruling and substituted convictions based on the guilty pleas.
Transcripts from July 21, 2011 showed that the Newmarket court recessed at 11:23 a.m. When the judge returned at 11:46 a.m., the Crown wasn’t in court and he was paged on the intercom.
“Tell them they have 30 seconds,” Chisvin instructed his clerk.
However, less than a minute later, Chisvin told court it wasn’t his clerk’s job. “It’s not her function ... to call the Crown's office,” he announced.
At 11:47.48 — 1 minute and 27 seconds after court resumed — the judge announced: “All right, all provincial matters are dismissed for want of prosecution.”
At 11:53.44, Crown attorney Brian McCallion appeared in court, only to be told that it was too late.
“Mr. McCallion, all provincial matters have been dealt with by want of prosecution,” the judge told him. “There was no Crown in here for some 10 minutes and you were paged and paged and paged.”
McCallion apologized and began to talk about a prisoner's psychiatric report he had been studying.
“That might be,” the judge replied. “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.”
Some of the people Chisvin set free had already pleaded guilty and were simply awaiting sentencing.
Among those set free were a man believed to be a violent paranoid schizophrenic and an alleged drunk driver.
Three complaints to the judicial council were investigated by a two-person complaint subcommittee consisting of a judge and a community member.
A review panel that included two judges, a lawyer member and a community member ordered the hearing.
Chisvin’s hearing before the judicial panel has been scheduled for Nov. 26.
The panel may make a recommendation to the Attorney General that the judge be removed from office.
The hearing panel will be composed of a judge of the Court of Appeal for Ontario, who will chair the panel; a judge of the Ontario Court of Justice; a lawyer member and a community member