BY KEITH LACEY
Sudbury?s Crown attorney?s office was allowed to proceed with the city?s first-ever dangerous offender hearing scheduled for Feb. 5, 2003.
Justice Patricia Hennessy of the Ontario Superior Court of Justice ruled Thursday that Kenneth MacDonald, 34, did not have his Canadian Charter of Rights and Freedoms violated even though he?s been waiting behind bars for over nine months to be sentenced following a conviction of assault causing bodily harm.
MacDonald?s lawyer Andrew Buttazzoni asked for a stay of the dangerous offender application brought by assistant Crown attorney Fran Howe after MacDonald was convicted last February for a vicious assault on a man inside a Sudbury hotel washroom Aug. 31, 2001.
Court heard MacDonald has been convicted of more than one dozen violent assaults, including several for assault with a weapon and assault causing bodily harm.
MacDonald?s co-accused in the assault incident, Stewart Enosse, received a 30-month penitentiary term.
MacDonald was ordered in March to undergo a 60-day assessment at the Centre for Addiction and Mental Health after the Crown told Hennessy it was considering proceeding with a dangerous offender application against MacDonald.
If a judge deems MacDonald a dangerous offender, he could be locked up indefinitely. If MacDonald is named a long-term offender, authorities would have special powers to watch him closely when he?s released from custody.
Buttazzoni argued his client?s charter rights were breached because he has spent almost one year in jail on this matter, and more than nine months awaiting sentencing following the 60-day assessment.
In her ruling Thursday, Hennessy said all accused persons have the right to be sentenced in a timely manner after a conviction.
However, she cited a Supreme Court of Canada decision stating how the courts should deal with accused persons considered dangerous to public safety.
In her final assessment, the ?future dangerousness? of the accused is the pre-eminent consideration the court must rule on. It was Hennessy?s opinion the application to stay the dangerous offender application should not be granted.
Hennessy did order Toronto psychiatrist Dr. Phillip Klassen and the Centre for Addiction and Mental Health to turn over all files relating to MacDonald to Buttazzoni and Howe by Dec. 20.
Klassen, court heard, didn?t forward his final assessment on MacDonald until early September resulting in numerous delays. He has also refused to hand over documents and notes from a ?multi-disciplinary team? involved in MacDonald?s assessment.
Klassen?s report on MacDonald was only completed after he was threatened with a subpoena. Buttazzoni argued against the dangerous offender hearing starting on Jan. 6 because he didn?t have enough time to study the documents crucial to MacDonald?s defence.
The Crown?s argument they haven?t had the authority to order Klassen to provide full disclosure doesn?t cut it, said Buttazzoni.
Klassen will be a Crown witness at any dangerous offender hearing against MacDonald and the Crown is ultimately responsible for Klassen to provide all necessary disclosure, said Buttazzoni.
Klassen was supposed to provide his final report within 15 days of MacDonald completing his assessment, but it took months and a subpoena for the report to be finished, said Buttazzoni.
He wrote the Crown and Klassen in October demanding all notes and documentation used to form Klassen?s opinion, but his request was never granted, said Buttazzoni.
There?s no reason for the delay he can think of except that Klassen is thumbing his nose at the courts, said Buttazzoni.
Howe agreed she had tried numerous times to get Klassen to forward all the necessary documents, but Klassen told her he wouldn?t unless he was ordered by the court or presented with a warrant.
Hennessy?s ruling Thursday should ensure defence counsel and the Crown have all necessary disclosures before Christmas..
MacDonald will remain in custody until the dangerous offender hearing begins.
The hearing is expected to take between 10 and 15 days.
