Former Surrey mayor Doug McCallum’s defence lawyer Richard Peck characterized his client as a victim of “animosity arising from a culture of meanness” and “toxic fanaticism” in his final submissions Tuesday afternoon in McCallum’s public mischief trial.
“When repeated it amounts to criminal harassment, and repeated it was,” Peck told Judge Reginald Harris, who is presiding over the trial in courtroom 101, Surrey provincial court’s largest courtroom.
“She despised McCallum,” Peck said of Deborah Johnstone, whom the mayor accuses of running over his foot with her car.
Peck said McCallum – a “dedicated public servant” who as mayor “weathered a fair share of criticism” from a “small subset” of the population – was taking a break from the “hurly burly” of public life to do some grocery shopping on Sept. 4, 2021 when the event resulting in his criminal charge occurred.
“For her, it’s an opportunity,” he told the judge. Peck called Johnstone’s driving the “epitome of reckless.
“In the process his foot was run over,” he said. Once Johnstone saw McCallum in the parking lot, Peck submitted, “she targetted and stalked him. She drove her car stealthily.”
McCallum’s confusion in perception was not surprising given the circumstances, Peck argued.
“He was startled,” the defence lawyer said. “Naturally there was upset, confusion and distortion of memory.”
“This for him, McCallum, was a frightening, disturbing event.”
The Crown was set to make its final submissions on Wednesday, after press time.
McCallum did not testify.
Former Safe Surrey Coalition councillor Laurie Guerra testified Tuesday that her first encounter with Johnstone – the woman McCallum claims drove over his foot – involved Johnstone yelling and swearing at them during an event.
“The mayor didn’t react to it. We just thought that was odd behaviour.”
Guerra was part of McCallum’s team on council for four years before her election defeat on Oct. 15. “Up until yesterday I was a councillor.”
She testified that during a council meeting Johnstone was making “bizarre” facial expressions – “kind of goofy looking.”
“Debi Johnstone told me to go F myself.”
“It was a shocking display that we never experienced before,” Guerra said. She told the court Johnstone showed up at her home with a camera in her hand, along with Merle Scott, wife of Keep the RCMP in Surrey campaign organizer Ivan Scott. “In my opinion the line has been crossed,” Guerra said, adding she felt “terrified.
“I didn’t sign up for that. It’s disgraceful.”
With that, the defence closed its case.
McCallum’s first defence witness Tuesday, orthopedic surgeon Dr. Kevin Wing, testified before a packed courtroom that the former Surrey mayor’s medical records from Peace Arch Hospital are consistent with soft tissue injury to his foot. McCallum claims his foot was run over during a parking lot spat in South Surrey.
“The foot is complex,” Wing said, noting it has 26 bones. He teaches at UBC, specializes in foot and ankle injuries and practices at St. Paul’s Hospital.
Defence lawyer Eric Gottardi asked what role adrenaline plays in recognizing whether you are injured or not. Wing replied it’s “well recognized” that in fight-or-flight situations adrenaline is a factor. A twisted ankle, he noted, might get increasingly sore after the fact.
Gottardi asked if injuries similar to McCallum’s can arise from “sudden stimuli,” such as reacting to a car going by, through pivoting or shifting weight.
“The answer is yes,” the doctor replied.
“Something happened in conjunction with this brief interaction with this vehicle.”
During cross-examination, Special prosecutor Richard Fowler noted McCallum claimed his leg and foot was run over and asked Wing if McCallum’s medical record contained anything about his leg.
Wing told the court McCallum underwent a “foot-slash-ankle exam.” Asked if swelling can be caused by aging or high blood pressure, Fowler testified a history of hypertension wouldn’t “trigger” him to expect to see swelling in the foot.
Fowler asked if there was anything in McCallum’s medical record indicating inconsistency between his left foot and right foot.
“Correct,” Wing replied. He said if the left foot was the source of the complaint he wouldn’t expect the right foot would be examined.
The former Surrey mayor 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.
Last week, the court heard McCallum told police Johnstone ran over his leg and foot with her Mustang in the parking lot then drove off in a “very dangerous” manner. “I really on this one want to go after her,” McCallum told police.
Special prosecutor Richard Fowler said “the question will be” if McCallum intended to mislead police into believing she had done something illegal “by making false statements to the police with the intention to cause Ms. Johnstone to be suspected of having committed an offence.”
The court reviewed CCTV footage from the grocery store’s entrance looking out into the parking lot where Johnstone confronted McCallum, they had an exchange, she drove off and he then walked to the store. “It became unpleasantries between the two of us, back and forth,” Johnstone testified. “It was a heated debate. I told him he was the worst mayor that Surrey ever had. I told him he was mean-spirited and a liar.
“I swore at him,” she testified. “I made a reference to him having a scaly face. I called him a scaly-faced motherf—-er.”
Johnstone told the court she drove away slowly because she was in a parking lot. She said her intent was to find parking.
Johnstone said she didn’t hear, feel or see anything unexpected and doesn’t recall McCallum saying anything to her as she drove off. Later that afternoon, police told her she was being investigated for assault with a weapon and criminal harassment.
The Crown is proceeding summarily in McCallum’s trial. A summary offence in B.C. is considered to be in the realm of petty crime and under the Criminal Code of Canada is the least serious type of offence.
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 told the Now-Leader last week she instructed city staff “to seek outside legal for an opinion regarding the city’s obligation.”
Meantime, the court heard last week the Surrey RCMP had a seven-member team investigating McCallum’s complaint.
“Pretty extraordinary isn’t it?” defence lawyer Richard Peck, K.C., asked Crown witness Sgt. Andre Johnny, the prime investigator, to which the officer replied, “No.” Johnny told the court he couldn’t conclusively say whether McCallum’s foot had been run over.
McCallum’s 911 call reporting the alleged hit-and-run was played in court, with him telling the dispatcher Johnstone “just about hit me, actually” and “she ran over my leg and foot.”
“She’s harassed me before,” McCallum told the dispatcher. “She called me a piece of shit.”
Asked if he needed an ambulance, McCallum told the dispatcher he could drive with his right foot to hospital but his left foot was “very numb.” McCallum later told the Surrey RCMP during a 58-minute interview at the station that “she just floored it. I thought she was going to peel rubber.”
“It looked like she just purposely wanted to clip me,” he said.
McCallum told the police officer he went to Peace Arch Hospital and underwent seven X-rays which, he said, revealed soft tissue damage but no broken bones.
McCallum’s defence began its case with a declaration that the evidence presented by the Crown falls “markedly short” of the criminal standard of proof to support a conviction.
Gottardi called as a witness Dennis Chimich, a biomechanical engineer and expert in injury causation. Chimich determined there was a mass of 413 kilograms over Johnstone’s right rear wheel, that the vehicle “rolled over” McCallum’s foot as he was “relatively” standing still, and that feet can be run over resulting in no fractures.
“Bone injuries are not to be expected at low speed,” he said. The absence of fractures in McCallum’s case “does not mean that his foot was not run over.”
He brought out a skeleton foot model in court as a visual aid. They also discussed a journal called “Foot and Ankle International,” which drew some chuckles from the gallery.
During cross examination, Chimich told Fowler he didn’t calculate horizontal acceleration but “used mass as my guide” for vertical force. He did not know the state of the tire’s inflation, he said, nor did he physically examine McCallum’s shoes but saw photos. Fowler asked him what minimal force is required to cause visible injuries on a foot inside a sock and shoe. “I don’t know,” Chimich replied.
The defence’s next expert witness was Bradley Heinrichs, a mechanical engineer and expert in accident reconstruction and video analysis A frame-by-frame review of CCTV footage from the grocery store shows McCallum’s arm “jerk back” as the tire passes, Heinrich noted. He said he went to the scene and used a laser scanner to create a 3-D scan of the parking lot, which was shown in court. Heinrichs said the video was not capable of telling him if there was a limp or change in McCallum’s gait after the incident. “I couldn’t tell,” he said.
A third witness for the defence, radiologist Dr. Hamed Basseri, works at Peace Arch Hospital in White Rock. He testified he found no X-ray evidence of a fracture in McCallum’s left foot but “moderate” soft-tissue swelling on the outside of the foot “toward the small toe.” During cross-examination, Basseri told Fowler he never physically observed McCallum’s foot and did not observe any X-ray of the right foot. He told the court he was not able to say if there was swelling on the day before Sept. 4 or earlier.