No ruling on Charter issue

Officer accused of abusing authority in traffic stop

ALethbridge judge has yet to decide whether a Blood Tribe police officer breached a woman’s Charter rights when he arrested her following a traffic stop in Standoff in 2015.

Justice Rodney A. Jerke is being asked by defence in the case to find that Const. Roger Higdon abused his authority and breached Brooke Shadow Creighton’s rights when, under the guise of a traffic safety violation, he pulled the woman over as part of an organized crime investigation.

That, however, is just one of several breaches lawyer Greg White accuses officers of committing Oct. 8, 2015 when they first arrested Creighton for possession of stolen property then later drug possession for the purpose of trafficking.

Creighton was on trial this week in Lethbridge Court of Queen’s Bench on multiple counts of drug possession and possession for the purpose of trafficking, as well as a single charge of possession of a prohibited weapon. The trial began Monday, but the testimony of officers and the accused has been heard during a voir dire — a trial within a trial — to determine the admissability of evidence, particularly whether Creighton's Charter rights were violated. Jerke will decide later this month whether evidence presented during the voir dire should admitted to the trial proper, and if he rules the more serious breaches were committed, the case could be thrown out.

Even though Higdon said he conducted the traffic stop in Standoff after noticing the car Creighton was driving had a burned out headlight and cracked bumper, White believes the officer only used the Traffic Safety Act violations as an excuse to get information about the driver and her passenger because of the car’s connection to drugs and organized crime on the reserve.

“The traffic stop was a ruse,’ White said in court during his closing arguments on the voir dire. “Was Const. Higdon doing a traffic stop? No way.”

White said the officer’s questions unlawfully went beyond the intent of the stop for traffic violations when he began asking about a large-screen TV he noticed on the back seat of the car. Higdon testified Creighton’s answers led him to believe the TV might be stolen and arrested her for possession of stolen property.

He also testified that he told Creighton about her right to remain silent and obtain counsel, but White pointed out that during a previous preliminary hearing Higdon testified under oath that he never read Creighton her rights.

White said that once Higdon warned Creighton about her burned out headlight and cracked bumper, he should have let her drive away.

Instead he questioned her about the TV, arrested her, put her in the back of the police cruiser and then, with other officers, unlawfully searched the trunk of the car where they found drugs and a pair of brass knuckles.

Creighton, who said she didn’t know the drugs were in the car, was charged with drug offences and, defence suggests, was only given her rights relating to counsel after she was taken to the police station where, White insists, her rights were again breached when she called a lawyer but wasn’t allowed to do so in privacy.

Creighton insists an officer didn’t close the door to the phone room when she called a lawyer a second time, but the officer said he did. And in a surveillance recording taken outside the phone room, a door is heard — but not seen — closing while Creighton is inside the room.

White said many issues and problems arise in the case because Higdon excluded from his notes many details of the incident — including whether he gave Creighton her rights — and had to rely on his memory of the events more than two years ago.

Crown prosecutor Dennis Hrabcak conceded that Higdon should have kept better notes, but said that doesn’t mean his testimony is unreliable.

He said the officer gave Creighton her rights, but did it from memory, not from a written card, which is why he didn’t record it in his notes.

Justice Jerke suggested, however, that an experienced police officer like Higdon, who is on a crime reduction unit, should charter a suspect immediately upon arrest and make a note of it.

White also reminded court of the lack of organization and inaccurate recording of events at the Blood Tribe police station, which became evident when civilian jail guard Mariam Chief Moon testified for the Crown earlier in the week.

Chief Moon was responsible for monitoring and recording the actions of Creighton while she was in police custody, but when White reviewed with the witness her logs that day, Chief Moon conceded she made several mistakes, including one in which she referred to another person by Creighton’s prisoner number.

“I probably wrote it wrong,” Chief Moon said.

Hrabcak refuted White’s allegations of Charter breaches, and said Higdon had authority to stop Creighton as part of a drug investigation even if it was under the pretense of a traffic violation. Hrabcak admitted the officer likely had other motives for stopping the accused, but that doesn’t mean the stop was illegal as long as it was done for valid reasons.

“This was a valid stop,” he said in his closing arguments.

Hrabcak also said Higdon had a valid reason to question Creighton about the TV on the back seat of the car to determine if it was stolen, particularly given the high rate of thefts on the reserve.

Once he felt he had reasonable grounds to believe it was stolen, it was only logical to search the vehicle for additional stolen items.

The case is back in court Dec. 18 when Jerke is expected to give his decision on the voir dire and whether the evidence will be admitted to the trial.

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