Defence questions iPhone search

A justice of the peace said no to the RCMP's initial warrant to search Richard Hurley's electronics after he was arrested for a narcotic offence on Jan. 8, 2016, the court heard at his trial Thursday.

Cpl. Rob Lamont drafted the document, that was sworn 10 days later, seeking judicial approval for a forensic examination of the Sault Ste. Marie man's iPhone that the Mounties had seized from him when he was arrested and other devices.

When the warrant was rejected, the JP prepared new terms and conditions that were attached to the initial document as an appendix, Ontario Court Justice Romuald Kwolek was told.

During cross-examination by defence counsel Michael Lacy, Lamont expressed surprise that the city police officer, who conducted the forensic examination for the federal force, had testified earlier in the day that he hadn't received a copy of the warrant's Appendix C with the conditions about which data could be the subject of the search.

The 12-year officer said he spoke to Det. Const. Doug Erkkila at the time and it was "my understanding that he had a full copy of the warrant" which included three appendices.

Erkkila, a technical crime unit expert with the Sault Ste. Marie Police Service, said he doesn't recall seeing Appendix C, but has the warrant and Appendix A, which lists the devices to access, at his office.

"I don't recall seeing B and C," he told Lacy, who called him as a witness to testify at the trial, which began Monday.

Hurley, 39, has pleaded not guilty to possession of cocaine for the purpose of trafficking and obstructing police.

He was arrested during Project OTamper, which targetted a personal trainer who was suspected of dealing steroids.

Erkkila said he was asked to dump all the data from Hurley's electronics and he was able to generate readable data from the phone, which had a password that was unlocked by forensic software.

Lamont was one of the Mounties involved in the surveillance of the project's targeted trainer who they followed to Toronto on Jan. 7 and back to the Sault the following day.

He told federal prosecutor Luc Boucher when he heard Cpl. Alvin Tang on the radio, saying the man was meeting with Hurley on Fournier Road, he thought he was joking and drove to the area to check it out.

Lacy, who has been vigorously cross-examining the Crown's police witnesses, questioned why it would be funny that Hurley was meeting with the target.

Lamont replied he believed the other officer was making a joke in the vain that the target was meeting with someone of significance.

"Why would Mr. Hurley be significant if he was not the target?" Lacy demanded.

"He has a history I know of," Lamont said, adding, "I believe Mr. Hurley is a drug trafficker," when Lacy asked if he believed his client is a big cocaine kingpin.

The defence suggested to Lamont that he had no basis to believe Hurley was involved with the other man's alleged trafficking.

"Other than his constant communication (with the suspect) and being seen in the surveillance," the witness replied.

Lacy persisted, asking the officer if it was funny because he was aware of Project Omax involving Hurley that ultimately resulted in the Crown staying charges against his client in 2010. 

Getting Hurley caught up in the recent project was "like catching a whale," because of the RCMP members' perception that Hurley got away with something in 2010, the lawyer suggested.

"Yes," Lamont replied.

That's what made it funny, because it was Hurley not a random person that the officers observed at the meet, Lacy asked.

It was funny, because of the context of the surveillance, and it was fortuitous that Hurley was there, the officer said.

The trial continues today with the lawyer's slated to make their closing submissions on a defence Charter of Rights application contending police violated Hurley's rights.