CITATION: R. v. Calvert, 2011 ONCA 379

DATE: 20110513

DOCKET: C52947

COURT OF APPEAL FOR ONTARIO

Weiler, Gillese and Blair JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Terrance Calvert

Appellant

Sonya Shikhman, for the appellant

Dena Bonnet, for the respondent

Heard: May 12, 2011

On appeal from the decision of the summary conviction appeal court dated November 1, 2010 by Justice H. K. O’Connell of the Superior Court of Justice, dismissing the appeal from the conviction entered on February 19, 2009 by Justice J. R. Morgan of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]              Mr. Calvert was convicted of operating a motor vehicle while having a blood alcohol concentration in excess of 80 mg/100 mL.  He was given a two-month intermittent sentence.   

[2]              At trial, defence counsel asked no questions in cross-examination of the arresting officer as to how long it took him to reach the police station from the scene of the arrest.  Nonetheless, in submissions, he challenged the officer’s evidence on this point.  The trial judge searched Google maps in assessing the defence submission.  He concluded that the breathalyser tests had been given as soon as practicable.  

[3]              Mr. Culvert appealed his conviction.     

[4]              Justice O’Connell, the Summary Conviction Appeal Judge, dismissed the appeal.  He rejected the appellant’s argument that the trial judge had exhibited bias by relying on Google maps when considering the 29-minute period between the time of arrest and the time of arrival at the police station.  He found that although the trial judge did look up Google maps on his own initiative, there was evidence that the issue of judicial notice was put before him. 

[5]              The appeal judge concluded that the 29-minute period was not fatal to a finding that the breath test was administered “as soon as practicable”, and that the issue of judicial notice having been raised, the trial judge was entitled to refer to Google maps for the purpose of ascertaining the distance between the scene of arrest and the police station. 

[6]  Mr. Calvert now seeks leave to appeal to this court.     

[7]  We would not grant leave to appeal. 

[8]              There is no clear error in the decision below and the issue raised on appeal has no significance to the administration of justice.  The “as soon as practicable” test is well settled and, in the circumstances of this case, it was reasonable for the trial judge to take judicial notice of the distance between the arrest scene and the police station.  In this regard, we note that the appellant accepts that generally speaking maps may be relied on by the courts when taking judicial notice because maps are a readily accessible source of indisputable accuracy.   

[9]              Thus, the appellant has not met the test for leave to appeal a summary conviction, as articulated by this court in R. v. R.R., [2008] O.J. No. 2468 and leave is refused.