APPROVED SCREENING DEVICE - THE DANGER OF "ASSUMING" SOMETHING

In cross-examination at Mr. Ho's trial,  the officer who made the approved screening device demand confirmed that he did not independently “test” the roadside device that had been provided to him by the “rookie”; he simply assumed that it would have been done at the beginning of the shift in the manner that he had done as a matter of “standard practice”. There was an acquittal at trial.  The Crown's appeal was allowed and a conviction was entered (see R. v. Ho, 2014 ONSC 5034) but an appeal to the Ontario Court of Appeal was allowed, the conviction was set aside and a new trial was ordered:

There were circumstances in this particular case that may have led a trial judge to conclude that the officer’s belief was not reasonable.  The officer who the testifying officer relied on to have performed the test was a rookie officer and the officer who testified had no idea whether that officer had undergone the appropriate training.  In that circumstance, we think the reasonableness of the officer’s belief that the proper protocol had been followed would reasonably be viewed as inadequate to provide the necessary grounds for a reasonable belief. R. v. Ho, 2015 ONCA 559