Suspect’s Charter rights breached

ABlood Tribe police officer breached a woman’s Charter rights when he pulled her over during a traffic stop two years ago, a judge ruled Monday in Lethbridge Court of Queen’s Bench.

Justice Rodney A. Jerke said Const. Roger Higdon did not have reasonable or probable grounds to detain Brooke Shadow Creighton when he pulled her over for a traffic violation Oct. 8, 2015. Higdon then unlawfully arrested Creighton for possession of stolen property, unlawfully searched her vehicle, and failed to immediately inform her of her right to retain and instruct counsel.

Jerke did, however, reject defence’s claim that Creighton was not given a reasonable opportunity to retain counsel, and said she had been given several opportunities to talk to a lawyer, even if it was some time after she was arrested.

Jerke gave his decision following a trial earlier this month in which lawyer Greg White said Higdon abused his authority and breached Creighton's rights when, under the guise of a traffic safety violation, he pulled the woman over as part of an organized crime investigation.

Jerke said officers have the right to conduct a traffic stop for more than one reason, and can “pursue other interests” at the same time. But after Higdon stopped Creighton there was nothing linking her to recent or ongoing specific criminal offences and he should not have proceeded to investigate, or question her about, a TV on the back seat, which he suspected might be stolen. That, Jerke said, went beyond the scope of the traffic stop and breached section nine of the Charter which states “everyone has the right not to be arbitrarily detained or imprisoned.”

Higdon arrested Creighton for possession of stolen property, but failed to read the accused her Charter rights “without delay.” Then he and other officers searched the vehicle and found drugs and a pair of brass knuckles.

Creighton was arrested for drug possession for the purpose of trafficking, which, Jerke ruled, was unlawful because the initial arrest was unlawful.

During part of the trial, evidence by Higdon, Creighton and other witnesses was presented during a voir dire — a trial within a trial — to determine the admissability of the Charter evidence. Jerke isn’t expected to decide whether the evidence will be admitted to the trial proper until March 16 when the trial continues. If he includes the evidence, which shows breaches were committed, the case could be thrown out.

However, the Crown and defence are also expected at the next hearing to provide the judge with their arguments as to how they feel the judge should rule and how the trial should proceed.