Howard Chisvin, Ontario Court Justice, Sets Accused Free Citing Late Lawyer
TORONTO - The office of Ontario's attorney general says it has launched a complaint with the province's judicial council after a judge let a dozen people go free because a lawyer was late for court.
Ontario Court Justice Howard Chisvin dismissed the defendants in a Newmarket court north of Toronto last month after Crown attorney Brian McCallion returned a few minutes late from a morning recess.
The accused included a violent schizophrenic, a spouse charged in a domestic abuse case, a disbarred lawyer charged with fraud and a robbery suspect.
Some of them had already pleaded guilty.
The province's chief prosecutor referred the matter to the Ontario Judicial Council last Friday, said spokesman Brendan Crawley. The council investigates complaints made against judges by members of the public.
According to media reports citing court documents, Chisvin returned to the courtroom from a recess at 11:46 a.m. He waited until 11:47.48 a.m. before dismissing the charges.
McCallion arrived at 11:53.44 a.m. and was told by Chisvin all the matters had been dealt with.
The attorney general is trying to get the cases back before the courts as soon as possible, said Crawley.
"A number of individuals have already been brought back before the courts, some of whom have pleaded guilty while others have had their matters adjourned," he wrote in an email.
The council has the power to warn or reprimand judges who are found to be guilty of misconduct, said council registrar Marilyn King. They can't force a decision by that judge back into the court system.
"The council has no authority to interfere with or make decisions about cases before the courts," she wrote in an email.
She did not say whether they've received the complaint from the attorney general's office because the council's policy is to not release that information unless a public hearing is going to be held.
The council currently has no hearings scheduled, she said.
Scott Rogers, the president of the Ontario Crown Attorneys' Association, had previously called for an investigation but he said he was restricted from launching a complaint himself because the province's Crown attorneys are not allowed to do so.
Chisvin has been at the centre of controversy before.
He stayed nine criminal charges against Davood Zarinchang in the fall of 2007 because the accused spent 24 days in jail without getting a bail hearing. The judge ruled he should have been given a hearing within 24 hours of his arrest.
The court also awarded the man almost $12,000.
The Ontario Court of Appeal reversed that decision in April 2010, ordering a new trial on the domestic assault charges on which Zarinchang was arrested and reducing the award to $3,600 plus GST.
The Appeal Court found the judge failed to adequately balance the interests of a trial for the accused with the interests served by a granting of a stay of charges.
Chisvin's decision sparked calls for a public inquiry from outraged police and politicians after Zarinchang was arrested on separate home invasion charges in February 2008 — 13 weeks after he was released on the domestic assault charges.
Then-attorney general Michael Bryant appointed Chisvin in 2004 to address what he at the time called "the court backlog problem" in Newmarket.