Court of Appeal for Ontario
Before: Doherty, Lang and Epstein JJ.A.
Between:
Her Majesty the Queen Appellant
and
Mauro Siciliano Respondent
Counsel: Benita Wassenaar, for the appellant No one appearing for the respondent
Heard and released orally: March 13, 2012
On appeal from the acquittals entered on July 21, 2011 by Justice H. Chisvin of the Ontario Court of Justice, sitting without a jury.
Endorsement
1On January 7, 2011, the respondent appeared before the Hon. Justice Chisvin on a number of criminal charges. He pled guilty to three charges:
- uttering a threat;
- possession of stolen property valued at less than $5,000; and
- breach of probation.
2The trial judge adjourned sentencing to July 21, 2011. There were other related charges and there was some hope that the respondent was getting his life in order and that some time to allow him to do that might assist.
3On July 21, 2011, the trial judge took a 20 minute adjournment at 11:23 a.m. When he returned 22 minutes later at 11:45 a.m., the Crown prosecutor was not present in the courtroom. The trial judge advised his clerk to notify the prosecutor that if he was not present within a minute, all remaining provincial matters on the trial judge’s list for that day would be dismissed for want of prosecution.
4Efforts were made to contact the prosecutor. At 11:47 a.m., the trial judge dismissed all provincial matters for want of prosecution. These included the charges on which the respondent had pled guilty and was scheduled to be sentenced on that day.
5About eight minutes later, the Crown prosecutor returned to the courtroom. He apologized to the trial judge indicating that he had been in his office reading a pre-sentence report that he had only just received. The trial judge indicated:
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.
6The Crown appeals.
7No one has appeared for the respondent, although we are satisfied, based on the information provided by the Crown, that the respondent is aware that the appeal is scheduled for today. We have decided to proceed in the absence of the respondent and are satisfied that he is not prejudiced by our doing so.
8We agree with the Crown that the order made by the trial judge is the equivalent of or tantamount to an acquittal and gives rise to a Crown right of appeal under s. 676.
9It is clear that the trial judge had no power to make the order that he purported to make. 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 highhanded and did a real disservice to the proper administration of justice.
10The appeal is allowed. The order made by the trial judge is quashed. Convictions are substituted based on the guilty pleas and the findings of guilt. Crown counsel suggests that, from the respondent’s perspective, it would be best to remit the matter to the trial judge who is familiar with the respondent’s background and his apparent efforts to rehabilitate himself over the last several months. We will, therefore, remit the matter for sentencing to the same judge.
"Doherty J.A."
"S.E. Lang J.A."
"G.J. Epstein J.A."