By Keith Lacey
It appears Sudbury?s Crown attorney?s office will go ahead with its first-ever application to have a repeat violent convict tried as a dangerous offender.
The final call on whether to pursue a dangerous offender application against Kenneth MacDonald, 34, will be made by Ontario Attorney General David Young, but a brief of a psychiatric report presented in court Wednesday indicated there?s a strong likelihood MacDonald, 35, would commit another serious crime if released.
MacDonald has completed a 60-day psychiatric assessment and a full report was supposed to be prepared for Wednesday?s court appearance. But assistant Crown attorney Fran Howe said the Crown needs more time to gather information for the hearing because only a synopsis has been completed.
Defence counsel Andrew Buttazzoni argued his client has been ?sitting in jail for almost a year? awaiting sentence on an assault conviction and the sentencing hearing should have proceeded Wednesday.
The Crown could pursue any dangerous or long-term offender application at a later date, argued Buttazzoni.
Justice Patricia Hennessy said the Crown has met its threshold by getting a qualified doctor to submit a preliminary report.
Even if a completed report was available, the Crown would be justified in asking for several more weeks to prepare for any hearing to try MacDonald as a dangerous offender, said Hennessy.
Hennessy told Howe to make sure the completed psychiatric report is ready when MacDonald returns to court Aug. 23.
A pre-trial to discuss all issues which might surface at a dangerous offender hearing will be held Aug. 21. Hennessy asked Howe and Buttazzoni to determine how much court time would be needed to hold a dangerous offender application if the Attorney General gives his approval to proceed.
MacDonald was convicted this past spring following a trial of severely beating a man inside a hotel washroom last summer.
Court has heard MacDonald has a history of more than a dozen violent assaults, including several for assault with a weapon and assault causing bodily harm.
MacDonald?s co-accused in the hotel washroom beating incident, Stewart Enosse, received a 30-month penitentiary term last week. Enosse received two years less a day for the assault and six months on an impaired charge and one other count.
Howe told the court the psychiatric synopsis ?covers the high points? of the assessment and clearly indicates MacDonald ?has met the criteria? for the Crown to consider a dangerous offender application.
Buttazzoni said ?my position is sentencing must and should go ahead today.?
It is not his client?s fault a completed report isn?t available, said the veteran lawyer.
The Criminal Code of Canada is specific a detailed, comprehensive psychiatric report must be completed and available to prosecutors and defence counsel within 15 days of any dangerous offender assessment being completed, said Buttazzoni.
There?s no mention in the code of a synopsis of such a report being adequate, he said.
Buttazzoni also wondered how the psychiatrist came to his conclusions if he hadn?t received all the necessary information from other doctors involved in the MacDonald assessment.
?The doctor had 15 days?and if that wasn?t enough time, that?s tough quite frankly,? said Buttazzoni.
MacDonald has had no right to appeal his conviction, but is simply doing ?dead time? waiting for this mess to be straightened out and this isn?t fair to him or the administration of justice, said Buttazzoni.
?It?s not Kenny MacDonald?s fault the report isn?t finished,? he argued. ?He shouldn?t have to sit and wait any longer.?
Howe argued the code doesn?t state a complete report is necessary, but only ?a report? and the psychiatrist has fulfilled his obligation.
Hennessy agreed saying ?I don?t find the Crown?s request (for an adjournment) as unreasonable.?
Whether a detailed full report is available so soon after the assessment or adequate synopsis is, in her opinion, ?a red herring? and an adjournment would be granted, she said.
The doctor in this case, who writes psychiatric reports all the time, made it clear having detailed reports only 15 days following an assessment ?is the exception rather than the rule,? said Hennessy.
If the Crown were successful in having MacDonald declared a dangerous offender, he would remain in custody indefinitely.
If the attorney general decides not to proceed with the dangerous offender application, MacDonald?s next court appearance will likely include his sentencing hearing.
