Phone search, half a kilo of cocaine should be admitted as evidence: Crown

Richard Hurley's lawyer attacked the RCMP's conduct Friday as he argued that officers involved in Project OTamper violated the Sault Ste. Marie man's Charter rights during his arrest and a subsequent search of his cell phone last year.

Michael Lacy said the critical issues in the case revolve around the grounds for the arrest, and the search and seizure of data on Hurley's iPhone.

He called the Jan. 8, 2016 arrest and phone search, which took place months later, unlawful, maintaining that evidence seized should be excluded from the trial.

Federal prosecutor Luc Boucher said police had reasonable grounds to arrest Hurley and the seized evidence, which included half a kilogram of cocaine, should be admitted as evidence in the trial.

The evidence is reliable, this is a serious offence, not a street-level drug offence, and all factors favour the inclusion of the evidence, said the Crown, who is with Public Prosecution Service Canada in Ottawa.

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

Lacy contends that the Mounties infringed on Hurley's rights to be secure against unreasonable search and seizure and not to be arbitrarily detained.

During a week-long voir dire — a trial within a trial — on the defence Charter application, Ontario Court Justice Romuald Kwolek heard testimony from five RCMP members and a city police technical crime unit officer.

Hurley was arrested during the RCMP drug project that was targeting a local trainer suspected of trafficking steroids.

He was caught up in the investigation when the Mounties were conducting surveillance on the other man, and observed a meeting between the pair on Jan. 7. Lacy accused the RCMP officers of misconduct, bias, gross negligence and wilful disregard for his client's rights.

The Toronto lawyer focused a good portion of his criticism on Const. Mark Allison, who headed up the investigation conducted by the federal force's Sault detachment.

He attacked the eight-year officer's credibility, arguing that the court shouldn't believe his evidence.

Allison "demonstrates he's not a reliable historian when it comes to the arrest of Mr. Hurley," he said. "The Crown's grounds to arrest rests on the shoulders of Allison, no other officer."  

Lacy described Allison as evasive and having an agenda during cross-examination.

"I know three days on the stand is difficult, but it wouldn't have taken three days if he'd answered the questions." 

He argued the Mounties were prepared to play a game of Russian roulette just to arrest Hurley and see what they could get, referring to a comment made by Allison that "the proof is in the pudding."

The officer couldn't articulate why he arrested Hurley, and "reverted to the fruits of the arrest and search" to explain it, Lacy said, adding the only reason he did that was because he didn't have reasonable and probable grounds.

Maintaining the Crown had failed to establish the grounds, the defence said there was no basis for his client's arrest.

He told Kwolek that upholding the arrest would reward the police for not being mindful of Hurley's Charter rights and reward them for the "biased perspective of the lens through which they interpreted everything in this case."

Boucher countered that there was no evidence that police were going after Hurley, a suggestion he "called creative writing based on old facts and situations."

He wasn't the target of the project, but he "kept popping in the surveillance" of the other man on Jan. 7 and 8, the prosecutor said.

As for Allison's credibility, some of the officer's answers were less than satisfactory and that there was bias that "bothers me," he conceded, pointing to a "once a drug dealer always a drug dealer" sentiment.

"It's serious and I recognise it," Boucher said, adding it may have tainted some of conclusions, but it wasn't wilful blindness, "just bad bias."

Allison demonstrated an excellent memory when cross-examined on the facts, recalling nuances and details, he said.

Testifying for three days isn't easy and can be trying, Boucher told the judge, suggesting some of his answers can be evaluated with that in mind.

"I think Mr. Allison didn't want to let go of his grounds, but l don't think he was lying to the court," the Crown said.

When you look at the totality of all the circumstances in what was a rapidly developing situation on Jan 8, "it is clear Mr. Allison did believe he had reasonable and probable grounds, had a subjective belief and acted on it," he argued.

The defence argued the arrest was unlawful because police didn't have a warrant, but a warrantless arrest can be made if officers have reasonable and probable grounds that a person has committed an indictable offence, Boucher said.

Kwolek will give his decision on the application on April 19.