Special Crown prosecutor Richard Fowler said “no amount of hostility can justify making false statements to police” in his final submissions Wednesday at former Surrey mayor Doug McCallum’s public mischief trial in Surrey provincial court.
“Was it an accidental hit-and-run? No,” Fowler said. “When you read that statement as a whole, it is clear in my respectful submission that Mr. McCallum’s allegation to the police is that Ms. Johnstone drove towards him to purposefully pin, in other words restrict him, his movements. She then drove off quickly, deliberately turned towards him, and ran over his foot. And in my respectful submission, that characterization, his allegation, is at the core of what was being investigated and it is false.
“As a whole, it is clear that the essence of the complaint was that the running over his foot was a deliberate act that occurred after he had been pinned, to use his word, against the back of his car,” Fowler said. It wasn’t a hit-and-run, Fowler argued, as driver Deborah Johnstone remained in the parking lot after her encounter with McCallum in which he alleges she purposefully ran over his foot.
“A hit-and-run is very different than a deliberate attempt to hit me,” Fowler noted.
McCallum had time to think and reflect on what happened in the four hours after the incident, Fowler said. “He had time to make sure what he told the police was going to be accurate.” The 911 call, he noted, was made more than two hours later.
“And in that two hours Mr. McCallum had gone grocery shopping, had spoken to the protesters, the people who were collecting signatures.”
The former mayor is not someone without sophistication, Fowler noted. “Of course he was, he was running the city.”
McCallum used the word “pin” more than 11 times, Fowler said. He argued that McCallum had made false statements to police that “clearly were designed to intentionally mislead them, purposefully causing someone to be suspected of having committed offences they did not commit.”
“He said she had pinned him,” Fowler told the court. “That simply did not happen.”
Fowler said McCallum’s statements to police weren’t “simply reckless hyperbole. In other words, they weren’t statements that were made in the heat of the moment, with no time to quietly reflect on what had just happened.
“A review of the CCTV video footage clearly shows that Ms. Johnstone had not committed any of the offences suggested by Mr. McCallum’s statement.”
Fowler told Judge Reginald Harris that what he needs to decide is if McCallum’s was a complaint that his foot was run over, or was a complaint that his foot was deliberately run over after he was pinned to the back of his car.
“If in fact Mr. McCallum’s foot was run over, in my respectful submission he has intentionally exploited what was an obvious accident by deliberately characterizing it as something it was not,” Fowler said. “The only reasonable inference in my respectful submission is that the Crown has proven beyond a reasonable doubt the elements of mischief. You can be sure he made false statements, you can be sure he intended to mislead. You can be sure he causes Deborah Johnston to be suspected of commiting an offence she did not.”
Before that, defence lawyer Eric Gottardi told Harris that the “primary reason the Crown’s case has failed is in fact his foot was run over and that was the complaint that began this investigation” and that it is “preposterous” to suggest there was an attempt at public mischief on McCallum’s part. He asked for an acquittal.
“The Crown cannot prove that the accused communicated false information to a peace officer,” Gottardi argued. He said it wasn’t McCallum’s intent to waste police officers’ time or “to get revenge” on Johnstone.
Harris is set to render his decision on Monday, Nov. 21.
McCallum is charged with one count of public mischief stemming from an encounter on Sept. 4, 2021, between himself and a group of volunteers that was gathering petition signatures outside the South Point Save-On-Foods store in South Surrey for a referendum on the policing transition.
After a 13-year break from the mayor’s chair, which he occupied from 1996 to 2005, McCallum was sworn in by a judge on Nov. 5, 2018 for his fourth term as Surrey’s mayor. Brenda Locke, of Surrey Connect, defeated him for the mayor’s seat in the Oct. 15 election by 973 votes.
Locke and the new council were sworn in on Monday night (Nov. 7). One of her election promises was to make McCallum pay for his own legal costs in this case, rather than Surrey taxpayers having to foot the bill. Locke said she’s instructed city staff to that end, “and that they are to seek outside legal for an opinion regarding the city’s obligation.”