Ontario judge reprimanded for arbitrarily dismissing 10 cases over tardy prosecutor

Judges are human beings. They make mistakes. But should one mistake be enough to yank a judge from the bench?

Ontario Court Judge Howard Chisvin was reprimanded Monday by the Ontario Judicial Council for a 2011 incident when he dismissed charges against 10 people because a Crown prosecutor was 10 minutes late for court.

According to CTV News, the council found Chisvin's arbitrary negation of charges against the group, who were either waiting to plead guilty or to be sentenced, had a "detrimental effect on public confidence in the administration of justice."

Chisvin's trouble began July 21, 2011, when a prosecutor in his Newmarket, Ont., court didn't appear after a break in proceedings, the Globe and Mail reported. The judge ordered him paged and warned that charges against the remaining defendants on the docket would be dropped if the prosecutor wasn't back in court within a minute.

The Crown lawyer, who said he had been reading over a psychiatric report related to one of his case files, showed up several minutes later to find Chisvin had freed the accused, the Globe said.

Chisvin's lawyer, Brian Greenspan, told the judicial council the judge reported the incident to his regional chief judge the same day and expressed regret. He submitted numerous letters of support from other judges and lawyers praising Chisvin's work and calling his outburst out of character.

"This was not simply a good judge who had a bad day," Greenspan said, according to the Globe. "This really was an exceptional judge who admits he had a very bad day."

Chisvin, who was appointed a provincial court judge in 2004, told the council hearing he had a lapse of judgment triggered by unspecified stress and it would never happen again.

"I very much regret my actions that day," a remorseful Chisvin told the council, according to the Globe. "Not only has that moment had a profound effect on my professional life, but on my personal life as well."

The council's own lawyer, Marie Henein, conceded even a judge can have an "intemperate" moment amid the stress of a day in court. But she said wide publicity about the incident had undoubtedly reflected badly on the the justice system.

"Justice Chisvin's conduct has significantly shaken the confidence of the public," Henein said.

[ Related: Man at centre of Manitoba naked judge case was a sex performer: lawyer ]

The council had the power to impose a range of penalties on Chisvin, including recommending removal from the bench. But it opted for only a reprimand, calling the incident an "aberration" by an otherwise hardworking and dedicated judge, CTV News said.

The incident triggered a public flap earlier this year when the Ontario Court of Appeal ruled Chisvin had acted illegally and abused his judicial authority in freeing the accused.

"It is clear that the trial judge had no power to make the order that he purported to make," the Appeal Court said in restoring guilty verdicts against one of the accused, according to CTV News.

"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."

National Post columnist Matt Gurney wrote at the time that the Appeal Court's "stinging rebuke" of Chisvin "has given Crown attorneys, defence lawyers and the accused themselves cause to worry that Justice Chisvin is not fit to preside over a fair court hearing."

He urged the judicial council to use its rarely invoked power to recommend Chisvin's removal, which would have to be ratified by the Ontario legislature.

"In this case, given that Justice Chisvin has indeed shown conduct incompatible with his duties and failed to perform said duties, there is a strong argument that they should be used," Gurney argued.

But the council, in its judgment, decided one "bad day" was not enough to override years of solid service.