Justice dismisses request for extension to file notice for appeal

The request of a man convicted for aggravated assault to extend the deadline for filing a notice to appeal his sentence has been dismissed.

Randall MacLean was convicted of aggravated assault on Oct. 18, 2016. The charges were in relation to an altercation at a wake in a private residence. According to Nova Scotia Court of Appeal Justice Anne Derrick in her written decision, the altercation occurred while MacLean was being pushed out of the house by its occupants who had decided it was time for him to go. During the altercation MacLean bit the nose of Paul Gaudet.

The medical evidence at trial described the injury to Gaudet’s nose as “a partial amputation to the tip of the nose….”

MacLean’s deadline to file an appeal against his conviction was March 29, 2017. On March 7, 2017, MacLean, who was incarcerated at Northeast Nova Scotia Correctional Facility, had a Notice of Appeal form faxed to the registrar for the Court of Appeal. He had filled it out by hand.

The registrar noted that there was information missing from the proposed Notice of Appeal and emailed MacLean’s case management officer on March 8 identifying the deficiencies. She requested that MacLean make the necessary corrections and resend the notice. He was still well within the time limits for filing.

Prior to the end of March 2017, MacLean’s case management officer advised the registrar that she had brought the email to MacLean’s attention and been informed by him that he no longer wished to proceed with his appeal.

MacLean changed his mind. In an affidavit received by the registrar on May 5, 2017, MacLean explained why he had not filed his Notice of Appeal within the deadline under Civil Procedure Rule 91.09. He said it was because he was in jail and had trouble focusing due to “injuries” sustained during the incident that led to him being charged. He was “disoriented from procedure and found guilty” and his mind was “scrambled.”

On May 19, 2017, the registrar received a letter from MacLean dated May 17, 2017, enclosing his original proposed Notice of Appeal. He noted that he had faxed the Notice of Appeal on March 7, 2017, and attached a copy of the transmission report. He did not mention being previously advised that the notice was incomplete.

In June 2017, he was released from jail and returned home.

In a tele-chambers conference call on July 26, 2017, MacLean advised that he wished to withdraw his motion for an extension of time to file a Notice of Appeal. A Notice of Abandonment was sent to MacLean by mail on Aug. 3 for his signature. MacLean never signed it. In a telephone call with the Deputy Registrar of the Court of Appeal on Sept. 20, 2017, MacLean indicated he had changed his mind and wanted to proceed with his motion. He confirmed this in a tele-chambers call on Oct. 4.

Derrick ultimately decided that “The interests of justice are not served by permitting an appeal that lacks all merit to proceed when it is out of time. Mr. MacLean’s proposed grounds of appeal lack all merit. It is not in the interests of justice to allow Mr. MacLean an extension of time for filing his Notice of Appeal.”

And with that Derrick dismissed the motion.

“He needs to now move on with his life and put all of this behind him,” Derrick said.