



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Siciliano, 2012
    ONCA 168

DATE: 20120319

DOCKET: C54166

Doherty, Lang and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Mauro Siciliano

Respondent

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

[1]

On 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.


[2]

The 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.

[3]

On 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 judges list for that day would be dismissed for want of
    prosecution.

[4]

Efforts 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.

[5]

About 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 Crowns office was called, no Crown. 
      Theyre dismissed for want of prosecution.


[6]

The Crown appeals.

[7]

No 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.

[8]

We 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.

[9]

It 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 judges actions were highhanded
    and did a real disservice to the proper administration of justice.

[10]

The
    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 respondents perspective, it would be best to remit the
    matter to the trial judge who is familiar with the respondents 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.


