CITATION: R. v. Townsend, 2007 ONCA 332

DATE: 20070502

DOCKET: C45488

COURT OF APPEAL FOR ONTARIO

LASKIN, SIMMONS AND LAFORME JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

And

HARVEY TOWNSEND

Applicant/Appellant

William Watson for the appellant

Megan Stephens for the respondent

Heard and released orally: April 20, 2007

On appeal from the conviction entered by Justice Richard Byers of the Superior Court of Justice dated March 13, 2006.

ENDORSEMENT

[1] The appellant does not contest that the arresting officer had reasonable and probable grounds to demand a breath sample at the roadside. In our view, that demand was a continuing demand that remained in force until complied with. The fact that there was a subsequent demand made by the breathalyzer technician without reasonable and probable grounds and that the appellant refused that demand does not invalidate the earlier demand nor change the character of the appellant's ongoing refusal to comply.

[2] Section 254(3) of the Criminal Code does not require multiple demands. Moreover, in our view, the subsequent demand was no more than a good faith attempt by the breathalyzer technician to give the appellant a further opportunity to comply.

[3] In our view, the trial judge made no error in convicting the appellant. The appeal is therefore dismissed.

"John Laskin J.A"

"Janet Simmons J.A."

"H.S. LaForme J.A."