Power to dismiss for want of prosecution

R. v. Siciliano, 2012 ONCA 168 deals with a case where a trial judge, after taking a plea of guilty, dismissed a charge for want of prosecution.  The Court of Appeal held no such power exists:

[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 judge’s 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 Crown’s office was called, no Crown.  They’re 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 judge’s 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 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.