Upon our retirements, my wife Tina and I talked about what we’d like to do for the rest of our lives. I told her that I’d like to travel the world collecting information to write about gold and to continue writing books about bird photography.

In the early spring of 2007 I ordered 4-sections of scaffolding. Two sections were made of steel and two were made from lighter but more expensive aluminum. As well, I purchased a custom-built trailer for towing behind my Sports Utility Vehicle.

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A Black-billed Magpie attends its two almost ready-to-fledge young.

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A Pygmy Nuthatch at the nest cavity attending to its young.

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A Gray Catbird nestles down to brood its young.

In 2007 birding associate Damon Calderwood and I were hit with 9 criminal charges each by the Canadian Wildlife Service under the Migratory Birds Conventions Act, 1994 and the newly created Species at Risk Act (2002). The potential for fines was a staggering $4,500,000. I eventually learned that the most aggressive investigation came as a result of e-mails from the very top of the CWS organization. The lead investigator eventually lined up 16 government witnesses to testify against us. Their investigation probably cost the Canadian taxpayer between $500,000 to $1,000,000. We were charged jointly because we were caught photographing a single adult Yellow-breasted Chat and babies at the nest. None of the birds died because of our photography. Ironically, my wife spent far more time photographing the chats than I did yet her name never came up in any of the 400+ page prosecution package. It occurred to me that Damon and I were being targeted.

The results of these charges to me personally were devasting. I suffered a complete mental breakdown that placed me in the psychiatric ward of the Maple Ridge Hospital for almost three weeks. If it were not for the unwavering support of  Tina and family I’d likely be in the ground. The first thing that Damon and I did upon my release was hire an expensive lawyer. He negotiated a deal with the Justice Department lawyer. The deal was simple. If Damon and I both agreed to plead guilty, the JD lawyer was prepared to stay (shelve) 8 of the 9 charges against each of us, reduce the one charge each under the Speciers at Risk Act from criminal to summary (a lesser charge) conviction, and request an $8,000 fine for me and a $6,000 fine for Damon. Tina, family, friends, and psychiatrists all begged Damon and I to take the deal. If we did, the threat of the heavy fines or a criminal record would vanish.

Although publicized at the time, little of the behind the scenes events got out to the public. My lawyer, because of my fragile mental state, told me not to talk to reporters. It was never revealed that almost a year after the incident, I sued a biologist for slander for writing about me with a great deal of misinformation that quickly went viral on birder blogs. Because of it, I began receiving ‘hate’ mail and that accounted for my spiral downward into mental unbalance. Because of my being manipulated into pleading guilty, my actions against her simply vanished. You see, since she was a government employee, the Justice Department went to bat for her.

When Damon and I had our day in court, with the small amount of evidence that came out, the judge sentenced me to a $4,000 fine. Damon was fined $2,000. We were given 1 year to pay the fines with the understanding that we’d be given unconditional discharges if we stayed out of trouble. There was something at our trial that I found disconcerting. Although our lawyer offered up a disc with all our images, the JD lawyer refused. I suppose she likened them to the proceeds of a crime. In any event, the judge told us that we were not allowed to publish (and I suppose that includes this blog) or profit from any of our chat photographs. For the record, the chats were photographed over a three-day period. Damon photographed them on the first day, Damon and Tina on the second day, and I was just setting up on the third day when I was ‘busted’ by 3 biologists.

It’s interesting that the biologists and law enforcement officers went through the photographs that my wife had taken. The last two photographs showed the parent bird fluffed up with its eyes closed. The meta data on each photograph gave the exact time the images were taken. My wife, brand new to bird photography, concluded that the  adult was shutting down and going to bed for the night. A biologist tried to suggest that the bird was injured because of her photography. Did it not occur to her, if they were the last photos of the day that the bird might just be going to bed? If she or any of the other biologists did, it was never mentioned in the prosecution package. There was also a suggestion that the strobes damaged the eyes of the babies and the adult. If the prosecution had looked at the meta tags they would have seen that the strobes were powered down. They would also have seen that Damon sometimes took several photographs over the course of a minute at the nest. If the strobes had frightened the adult, she would have flown off. It bothers me that the prosecution was more concerned with manipulating Damon and I into a guilty plea than trying to get to the truth. I was given an opportunity to give a “guarded” statement but I’d been down that road before and it didn’t end well. I wasn’t interested. Interested, although the JD used Tina’s photographs, she was never mentioned in the prosecution package.

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A Male Lazuli Bunting visits its nest to feed his babies.

They say the best therapy for mental illness is to talk or write about its causes. As a result I wrote my memoirs ‘The Boy from Renfrew Ramblings of a Bird Photographer’ in 2015 in which I go into detail about the ‘Okanagan bust’. I had written about the ‘Okanagan fiasco’ in the fall of 2007 when the details were still fresh in my mind. The CWS needed poster boys to test their new Species at Risk Act. I guess Damon and I made perfect candidates as we had both written books on bird photography. Ironically, mine was away back in 1984 when the “rules” about the photography of birds at nests were very different than today. The crown in their prosecution package seemed prepared to introduce photos from 1985 into a trial. Ironically, I had taken the photos while working with the CWS.

Incredibly, the fines in 2007 were $250,000 each. As Damon and I found out, it is very easy for an over enthusiastic law enforcement officer to turn a single incident into several charges knowing that’ll give the Justice Department ample opportunities for deal making. The maximum fines since then have been raised. The government has introduced minimum mandatory penalties that takes the onus of passing the amount of a fine away from the judge. It’s like an ex-policeman friend of mine said to me, “Throw enough mud at the wall and something has to stick.”

It’s a bit late but I’d like to give my side of the story for the record referring to the chat “bust”. Damon found the nest and cut out a patch of thick brambles some 6-feet away from the nest. I learned that Damon had sent out a bulk email to Okanagan birders telling them that he was going to be photographing birds in the Okanagan. He asked for help from the local birders. One, a well-known birder, author, and a member of the “Yellow-breasted Chat Recovery Team” sent him a lengthy email telling him where to go to find certain species of birds. He told him exactly where to go to find chats but neglected to tell him that chats were a Species at Risk in that particular part of the province. Damon found a nest and over three different occasions cut out three 2′ x 6′ patches of brambles to eventually create a 6′ x 6′ opening into which he placed his blind. He took photos on the 11th June. He and my wife Tina took photos on the 12th and a visited her momentarily at the blind. The area was badly trampled with a pathway leading to the nest. This made perfectly good sense to me as Damon and Tina (as well as biologists) had walked in and out of the area. I was in the blind all of 15 minutes on the 13th before being ‘busted’.

I was confronted by three biologists. Unknown to me, the chat had recently been made a Species at Risk in the Okanagan. It was not at risk in other parts of Canada or the US. Because all my bird books were seriously out-of-date, I was totally unaware that the chat was possibly the most studied bird in BC if not all of Canada.

Here’s what I remember about my confrontation with the three biologists on the morning of the 13 June. The senior biologist pointed to a red or orange ribbon. Since Damon had found the nest, I initially assumed that he had tagged a bramble close to the nest for me. She then showed me the initials ‘YBCH’ that stood for Yellow-breasted Chat. She informed me that I was set up on a bird in her study area. One thing that I do remember very explicitly is that when I asked her the success rate of the chats she told me that 99.9 % fledged. I was puzzled and told her that her comment couldn’t possibly be correct. We talked for quite some time and I asked her if we could perhaps later get together for a coffee. She declined. I recall telling her that I had photographed birds for several years and that I’d even worked with the Canadian Wildlife Service. I mentioned that I’d co-authored a book years earlier and that I was now working on a book for children. I also told her that my company had published a book about birds the previous year and offered to show her a copy from the back of my Sports Utility Vehicle. We exchanged information. I gave her a business card and she gave me her cellular number. When I mentioned that we were set up on the nests of Black-headed Grosbeaks and Gray Catbirds, she gave me the phone number of a woman to call about the continuance of the photography. The biologist told me that they were quite busy and requested that I dismantle and leave. In my haste to leave, I left a strobe and tripod behind. Alone and back at my vehicle, I realized the missing equipment. I called the biologist and asked if she had seen the missing items. She said she hadn’t. I asked her to look for them as I’d be reporting the loss to the police for insurance purposes as the two items had cost me over $700.

As an ex-policeman, I began wondering if I hadn’t been under observation since the day before Tina had seen three biologists who parked a government truck beside my SUV and hiked up onto a side hill. When I’d gone to check on Tina at the nest, she told me that she had to use the washroom. Just as we came out onto the roadway, the biologists intercepted us at our vehicles. One of them informed us that she had gotten into some Prickly Pear Cactus. They told us that they were doing a study on a particular butterfly. Tina pulled out her insect book and looked up the butterfly. We told them that we were in the Okanagan photographing birds. When Tina and I returned she went back to photographing the chat. I called Damon and on his cellular and arranged to meet him near the nest. He joined me and almost immediately a government chap came into the bush and told us that the “butterfly ladies” had told him that we’d found the nest of a Great Gray Owl. It simply wasn’t true. While he was talking to us Tina was listening to our conversation from within the blind. He was Australian. He told us he was with a group doing a study on Flammulated Owls. He then asked if we’d seen any chats and we played stupid. At some point, I got a sickening feeling in my stomach. When confronted at the nest, I was alone. It would be the word of three witnesses against one. One of the witnesses was a very well-built First Nations man. Was he there for the muscle in case I made a scene? From experience, I know that law enforcement officers can sometimes even be used as part of an elaborate sting without their knowledge.

Here are links to just 2 the studies carried out on chats by the Okanagan biologists:

Site Fidelity and Annual Survival of the Western Yellow-breasted Chat at the Northern Edge of its Range:

http://www.canadianfieldnaturalist.ca/index.php/cfn/article/download/1329/1322

Yellow-breasted Chat and Gray Catbird Productivity in a Fragmented Western Riparian System:

http://www.sfu.ca/biology/wildberg//papers/MorganetalWJO07.pdf

WordPress’ first question upon my signing up was what I was hoping to achieve by putting up a blog. It’s very simple. I want to sell books. I printed 100 copies of my memoirs, 50 in black and white and 50 in colour. The 400+ page 8.5″ x 11″ book sells for $50 and $100 respectively.

In 2006 my company published Damon’s book ‘Flights of Fantasy’. It was originally priced at $30 put I’m unloading the remaining 40 copies for $20 each.

 

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