Docket: CA 179990
NOVA SCOTIA COURT OF APPEAL
[Cite as: R. v. Ofume, 2002 NSCA 80]
BETWEEN:
PHILLIP OFUME
Applicant/Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
D E C I S I O N
Counsel: Applicant in person
Donna Keats for the respondent
Application Heard: May 30, 2002
Decision Delivered: May 30, 2002
BEFORE THE HONOURABLE JUSTICE FLINN IN CHAMBERS
FLINN, J.A. (Orally): (In Chambers)
[1] The applicant, Phillip Ofume, was convicted in Provincial Court of certain violations of the provisions of the Motor Vehicle Act namely driving while his license was suspended and driving without valid license plates.
[2] Mr. Ofume’s appeal of those convictions was heard by Justice Kelly, in his capacity as a Summary Conviction Appeal Court judge, on April 3, 2002. Justice Kelly, on that day, dismissed the appeal and ordered that the conviction stand and that Mr. Ofume pay the fine as directed. Mr. Ofume did not appear at the hearing of this appeal.
[3] Mr. Ofume has applied for leave to appeal and, if granted, appeals Justice Kelly’s decision to this court. Mr. Ofume’s notice of appeal was faxed to this court on May 21, 2002 beyond the time limit of 30 days within which such notice must be filed. Mr. Ofume has applied to stay Justice Kelly’s order so that he can retain his driving privileges pending the hearing of this appeal.
[4] The Registrar has written to Mr. Ofume advising him that he must first make an application to extend the time for filing his appeal, and file an affidavit in support of that application. He was further advised that only if his application to extend the time for filing his notice of appeal was granted would the court consider his application for a stay of Justice Kelly’s order.
[5] Mr. Ofume has filed nothing in support of any application to extend the time for filing his notice of appeal. He takes the position incorrectly, I might add, that he does not require an extension of time to file his notice of appeal.
[6] I have discretion under the Rules to extend the time in a case like this. Ultimately, it is a question of whether or not justice requires that an extension be granted.
[7] In considering this ultimate question, among other things, which a chambers judge takes into account, are:
(1) whether the appeal has sufficient merit on the basis it is arguable that the trial judge made a clear error in his perception and evaluation of the evidence;
(2) there was a bona fide intention to appeal while the right to appeal existed; and
(3) a reasonable excuse for the delay in launching the appeal is advanced.
[8] Since Mr. Ofume has provided me with nothing along these lines which would give me any indication that justice requires that I grant the extension, I am exercising my discretion by refusing the application.
[9] Therefore, since this appeal was not filed in time, and since I will not exercise my discretion to extend the time, it is not necessary for me to hear any submission on Mr. Ofume’s main application that a stay of Justice Kelly’s order be granted pending the hearing of the appeal.
[10] The applications are, therefore, dismissed.
Flinn, J.A.