Law Times

Page 10 December 10, 2012 Law Times • FOCUS Chisvin's dismissals created headaches for justice system BY GLENN KAUTH Law Times W hat happens when a judge who's having a bad day dismisses a slew of cases out of frustration with a tardy Crown prosecutor? It costs a lot of time and resources to resurrect those cases, the Ontario Judicial Council panel hearing the case against Ontario Court Justice Howard Chisvin heard on Nov. 26. "While judges certainly have bad days, the consequences of their conduct are much more significant," Marie Henein, presenting counsel at the hearing in downtown Toronto last month, told the panel. In fact, materials provided at the hearing detail the effects of Chisvin's move to toss 33 criminal charges after a Crown prosecutor was late returning from a break. In the case of R. v. M.S., the accused was facing eight charges on July 21, 2011, including robbery and theft of motor vehicle without consent. In the wake of Chisvin's decision to dismiss the case that day for want of prosecution, authorities had to reissue the process. Police, for example, had to swear the information once again and obtain a summons. The matter ultimately ended up at the Ontario Court of Appeal, which substituted convictions on three of the counts. In April, the accused received a sentence of 18 months' probation and a 10-year firearms prohibition. In R. v. D.M.A., the accused and careless driving. The accused received a fine of $750 and a seven-month licence suspension for a Highway Traffic Act matter. In R. v. G.A.C., the court ultimately granted a conditional discharge with probation for four months and two weeks. Police had to swear the information again and obtain a summons for an assault charge in the wake of Chisvin's dismissal. In R. v. M.M.M., the accused received a suspended sentence with two years' probation for theft under $5,000 and breach of probation. Six other charges were withdrawn. Police had to restart the proceedings, as was the case in R. v. V.H., a case Justice Howard Chisvin is 'an exceptional judge' involving charges of impaired who had a very bad day, says Brian Greenspan. driving and driving over 80. The was facing five charges, including charges in that case were ultiassault. Police in that case had to mately withdrawn. swear the information again and The accused in R. v. D.J.K. obtain a summons. But in No- faced 15 charges, including fraud vember 2011, the charges were under and possession of a forged stayed after successful comple- credit card. By Dec. 14, 2011, the tion of diversion. There were five accused had made five court apcourt appearances between the pearances after the information first one on the relaid informa- was relaid. Most of the charges tion and the stay. were withdrawn except for two In R. v. M.A.B., the trial re- related to unauthorized use of mains ongoing. The accused in a credit card and possession of that case was facing three charges credit card data. The result was a that had to be relaid. suspended sentence. In R. v. J.F.S., the accused reIn R. v. V.S., the process had to ceived a suspended sentence and be reissued in relation to charges probation after pleading guilty to of mischief and breach of probaone count of breach of probation tion. The accused received a susand theft under. Police also had to pended sentence with probation swear the information again and for 12 months for the mischief obtain a summons. charge while the breach of probaIn R. v. 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Price subject to change without notice and subject to applicable taxes. CANADA LAW BOOK® www.lawtimesnews.com consequences of Chisvin's actions, his counsel, Brian Greenspan, presented a slew of letters of support for the embattled judge by his colleagues and defence lawyers. "This was not simply a good judge who had a bad day," said Greenspan, who added his client is "an exceptional judge" who "had a very bad day." Greenspan noted 10 of the judges Chisvin works with at the Newmarket, Ont., courthouse provided letters on his behalf. They included Justice Simon Armstrong, who noted Chisvin often gives up vacation days to finish cases and is willing to take on extra work; Justice Peter Bourque, who called Chisvin the "go-to" judge at the courthouse who's always available to provide advice; and Justice Peter Tetley, who noted Chisvin's high case disposition rate and called him an "individual of principle and discretion." "These are words from his colleagues who interact with him on virtually a daily basis," Greenspan told the hearing panel chaired by Ontario Court of Appeal Justice Robert Sharpe. The panel members also included WeirFoulds LLP partner Derry Millar, Ontario Court Justice Deborah Livingstone, and community member Anish Chopra. The letters, however, didn't negate the misconduct Chisvin admitted to at the hearing on Nov. 26. The Ministry of the Attorney General was frank in its criticism of Chisvin in its complaint to the Ontario Judicial Council just six days after the judge dismissed the charges for want of prosecution due to the Crown's lateness. "His dismissal of the charges affected the interests of the accused, the interests of the victims, the wider public confidence in the administration of justice, and may have affected public safety," wrote assistant deputy attorney general John Ayre in his letter of complaint. "Needless to say, the dismissals have caused many individuals to spend much time attempting to remedy what occurred. The conduct exhibited towards the prosecution including assistant Crown attorney Brian McCallion was inappropriate." According to the agreed statement of facts, the court took a recess at 11:23 a.m. on July 21, 2011, for 20 minutes. After the Crown saw Chisvin in the cafeteria line when he went downstairs to buy a drink, he returned to his office to read a psychiatric report related to a matter in court that day. The clerk paged everyone to return to court when she came back at 11:40 a.m. When Chisvin himself came back at 11:46 a.m., the Crown wasn't present. The judge then told the clerk to tell the Crown he had one minute to come back. Chisvin dismissed the charges at 11:47 a.m. McCallion returned to court at 11:53 a.m. He apologized, but Chisvin remained resolute. "They're dismissed for want of prosecution," he said of the charges on the docket. Later that day, Chisvin "recognized that he had made a significant error," the agreed statement of facts noted. "He contacted the regional senior judge and over the course of the next several days, arranged for a two-week leave of absence to address various personal stresses that he was experiencing." While Chisvin admitted misconduct, what his punishment would be wasn't so clear. As Heinen noted, there was very little law to assist the panel when it came to the factors that may be appropriate in determining the disposition. What was key, she said, was deciding what was necessary to restore confidence in the administration of justice. The penalties available to the panel included a warning all the way up to removal. But, Henein noted, "the threshold for removal is extremely high." To go that far, she said, the panel would have to conclude Chisvin's misconduct rendered him incapable of continuing in office. The factors to consider, according to Henein, included whether the misconduct was an isolated act; whether it occurred in or out of the courtroom; whether the judge has sought to modify his conduct; and the extent to which he exploited his position to satisfy his personal desires. But while Henein said people were "extremely shocked" at what happened in court, she noted the conduct was "the subject of minutes" and that Chisvin had admitted what he did was wrong and appeared remorseful. "Even the best of us occasionally have an intemperate moment," she said before recommending a combination of dispositions short of removal from office. For his part, Greenspan noted Chisvin was under significant stress on the day he dismissed the charges. He didn't specify what was going on in the judge's life in order to protect the privacy of him and his family but noted Chisvin later sought counselling after going on leave. Chisvin's own father, Greenspan pointed out, had written a note stating the judge's worst decision on July 21, 2011, "was going to work that day." "Since then, he has done everything conceivable" to address what he did, said Greenspan, who noted Chisvin is now looking into the issue of stress among the judiciary in the hopes of having a positive effect on his colleagues. In the end, Greenspan called for a punishment "at the lower end" through a warning and a reprimand. For its part, the panel accepted that the incident was "an aberration" by a hardworking judge and heeded Greenspan's call for a warning and a reprimand. A few hours before the panel announced its disposition, Chisvin rose to offer his own words on what happened. "I very much regret the events of that day," he said, adding his only wish was to rededicate himself to doing his job in a responsible way. LT

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