PHOTO: John McFadden, right, speaks with his lawyer outside a Yellowknife, NWT courthouse. Cody Punter/CANADALAND
A Yellowknife reporter charged with obstructing justice for taking pictures of a crime scene was acquitted, with the judge calling the testimony of the arresting RCMP officers “exaggerated.”
John McFadden, a 54-year-old reporter with Northern News Services, was arrested in the early hours of July 5, 2015 while taking photos of police searching a van in downtown Yellowknife.
During the trial, RCMP accused McFadden — who came to crime scene after having been in a bar across the street — of being intoxicated and aggressive toward police, with one officer testifying “it’s a huge officer safety liability to have an angry man with a camera in the area where you’re trying to work.”
Judge Garth Malakoe rejected the claims that McFadden was drunk and scolded two of the officers for being “inconsistent” and “obstinate” in their testimonies, in his judgement handed down in territorial court Oct. 21.
“What is concerning…is a certain willingness on the part of two officers to exaggerate to make a point and to evade answering certain questions,” Malakoe said. “It is unfortunate when the court observes these traits in professional witnesses when they are testifying to matters that are not central to the case. It means the court must treat their testimony with caution.”
In a telephone interview McFadden told CANADALAND he was relieved the 15-month ordeal was finally over.
“I feel 110 per cent vindication. I went to court that day with the hope that I would be found not guilty but that even if I was, [I thought] the judge was going to say something about my actions that night that did not reflect well upon me. He did not. What he said is that he believed me,” he said.
McFadden, who wept in the courtroom as the decision was handed down, added that the process took an emotional toll on him.
“I think I can roll with the punches with the best of them but this has been a very trying time and it’s been a very long time,” he said. “I’m not here gloating, I’m not here basking. I’m just trying to get on with my life.”
According to the facts of the case, during the three and a half minutes McFadden was taking pictures he was twice cautioned by RCMP officers to step back from the scene. He complied each time. When one of the officers saw the reporter’s camera lens come close to an open door where the police were searching, McFadden was arrested and charged.
After hearing testimony from the three Mounties, a witness who is a friend of McFadden’s, and McFadden himself, Judge Malakoe said the accused had not been given clear boundaries by police.
“He was told that he could take photographs from the sidewalk and to stay away from the van. There was no police tape outlining these boundaries. He was not given precise instructions as to what ‘stay away’ meant.”
Malakoe concluded the reporter had no intent to obstruct police officers and was simply trying to do his job.
“McFadden testified that when he saw the police emergency lights flashing and the lane blocked off he ran to investigate. It was part of his job to investigate, It was part of his job to take photographs. When he took [the final photograph] before being arrested, he did so when thought that he would not be interfering with any police officers.”
Before he was charged, McFadden had a somewhat contentious relationship with RCMP. In the winter of 2015, they took issue with McFadden reporting that RCMP had failed to notify the public there was a sexual assault suspect at large. Two weeks later another home was broken into and another person was sexually assaulted. The suspect in the original assault was charged for both incidents, leading police to change their policy about notifying the media regarding potential threats to the public. Several months before his arrest, McFadden was also was banned from an RCMP press conference due to an email which police claimed had a “disrespectful tone.”
‘It’s the mindset of the force’
Bruce Valpy, the managing editor of Northern News Services told CANADALAND that the fact McFadden was arrested and charged for doing his job points to a fundamental gap in police training and psychology.
“[Police] have an important role in society, perhaps the most important role, so it’s only natural the press in its role in society covers them, bad or good,” he said. “The press is 90 per cent positive, but it’s that 10 per cent that gets stuck in their craw. They don’t see that the press has a role to play they just see us as mad dogs and that’s quite a mistake.”
Valpy said if nothing else, the trial had helped clarify boundaries for RCMP and media. However, he added that there was still a ways to go to bring their relationship up to snuff.
“The relationship [between RCMP and media] is dependent on the training they receive and the mindset of the force in general, which is lacking a communication strategy that works for everybody,” he said.
“The problem isn’t the officers or the individuals it’s the mindset of the force.”
Valpy said he hadn’t spoken with RCMP since the decision was handed down, but he suggested such a conversation might be useful.
Yellowknife RCMP declined an interview request from CANADALAND but issued a statement saying: “This verdict is the result of the judicial process, in which we participate and support. We respect the decision of the court.”
While the case has been settled the question remains as to whether or not McFadden will return to his beat covering cops and courts in Yellowknife.
McFadden was reassigned when he was charged in order to avoid a conflict of interest. McFadden said he doesn’t have an axe to grind and that he is keen to get back to doing what he loves best. “I’d like to be optimistic that that relationship with the RCMP can be repaired.”
Valpy said he has yet to to broach the issue with McFadden but that it was just a matter of time until that happened.
“I don’t see any reason why he wouldn’t go back to it.” he said. “As matter of fact I think he’ll be a little more agile when he gets in that type of situation again, because it was an agonizing process.”
Disclosure: Cody Punter is a former employee of Northern News Services and worked alongside John McFadden.
Photo by Cody Punter.
PHOTO: John McFadden walks out of the Yellowknife courtroom with the Rheostatic’s Dave Bidini, left, and local media mentor George Lessard in tow. McFadden is being tried for allegedly obstructing a police officer.
John McFadden, a reporter with Northern News Services, was arrested while taking photos of police searching a van in downtown Yellowknife in the early hours of July 5, 2015. His trial began on June 20 after being postponed twice.
This is not McFadden’s first trouble with the RCMP. Last year,CANADALAND reported he had been barred from a press conference and denied media access to officers because of what the RCMP called “unprofessional and disrespectful conduct” and an email that had “a disrespectful tone.” McFadden covered the Yellowknife courts and crime beat for his paper, but was taken off it to prevent a conflict of interest in the wake of the charges.
Last Wednesday, the court heard testimonies from three officers who were present the night of McFadden’s arrest. During the incident, four on-duty police were searching a vehicle with stolen licence plates. The trial adjourned until Sept. 1, which is when McFadden is set to testify.
CANADALAND reached out to McFadden. He declined to comment on the testimony of the officers. But, he told CANADALAND the worst thing about his case is that it has prevented him from covering his beat.
“I can’t cover the courts because I’m before the courts and that’s frustrating,” he said.
Regardless of the outcome of the trial he said hopes his case leads to a less adversarial relationship between RCMP and the media in Yellowknife.
In his testimony, Const. Christopher Hipolito, who was the first to notice McFadden, said he saw him come from the direction of a local bar toward the scene. Hipolito told the court McFadden ended up between six to ten feet of the van before the officer told him to step back. At that point, Hipolito said McFadden became aggravated and told the officer he could stand wherever he wanted before announcing he was going to get his camera.
McFadden returned with his camera and proceeded to take photos of the police search. Const. Christopher Watson said McFadden was upset and yelling, saying he could take pictures if he wanted to, to which Watson responded “absolutely you can take pictures but don’t interfere with our investigation.”
All three officers told the court they believed McFadden was intoxicated, although they offered differing accounts of the extent of his intoxication. Two of the officers said McFadden was swearing throughout their interactions.
According to the officer’s testimony, McFadden took photos and their search attracted a crowd of 15 to 20 people, some of whom were smoking outside a bar adjacent to the van. Watson said McFadden was “getting the crowd jacked up and hostile toward police.” Several of them looked angry and began “chirping” the police in support of McFadden, Hipolito testified.
Photographs taken by McFadden over the course of three minutes and 25 seconds, which were entered as evidence, showed a few people in the vicinity of the van. The officers said some of the crowd was around the corner and not visible in the photos.
Watson claimed he was concerned about the officers’ safety as a result of McFadden’s presence in the “bubble we were working in,” leading the constable to conclude the reporter was obstructing the investigation.
When defence lawyer Peter Harte asked Watson if RCMP could have just ignored McFadden during cross examination, the officer responded by saying “It’s a huge officer safety liability to have an angry man with a camera in the area where you’re trying to work.”
Harte also asked Watson why the officers didn’t use police tape to mark off the scene.
At one point, Watson said he had to stop what he was doing to get McFadden to move out of the middle of the road, where he was taking photographs. After complying with the officer’s request, Watson said McFadden calmed down briefly.
But as Watson continued to search the front of the van, he said he saw McFadden’s camera enter through the side cargo doors, which had been opened by police. It was at this point that Const. Kevin Sales grabbed McFadden and arrested him for obstructing a police officer.
“I had to stop my search to remove him from the opening of the van,” said Sales. When explaining why he placed McFadden under arrest, Sales said McFadden was close enough to the vehicle that he could have tampered with the scene.
After being arrested, McFadden was brought back to cells where he was held for several hours. While he was in custody, Sales went through McFadden’s photos and downloaded the final shot which he said showed that the camera was inside the vehicle.
During their testimonies, the three officers said they knew who McFadden was but that they didn’t immediately recognize him when he showed up.
Watson and Hipolito said they ended up figuring out the reporter that night was McFadden before he was arrested.
Sales told the court he didn’t realize the man he was arresting was McFadden until the reporter told him he wanted to speak to Elenore Sturko, the communications liaison for the RCMP at the time, after he had been handcuffed.
“It was at that point I realized he was media,” said Sales.
McFadden’s lawyer hasn’t completed his cross-examination of Sales, who was the last to testify. It is anticipated that McFadden will testify in his own defence when the trial resumes on Sept. 1.
Disclosure: Cody Punter is a former employee of NNSL and is currently doing contract work for them.
Photo by Cody Punter.
CORRECTION: The previous version of this story said, “Several of them looked angry and began “chirping” the police in support of McFadden, Watson testified.” It was Hipolito who used the word “chirping.” Sorry about that, everyone.