If every complaint the Surrey Now-Leader has received from residents who are angry about taxpayers paying Doug McCallum’s legal bills was a marble, you could probably fill a wheelbarrow with them.
“As a Surrey resident, I am writing to express my total outrage in that the City of Surrey would even consider the idea, of paying Mayor McCallum’s personal legal bill for what (he himself claimed) was an event that happened during a personal shopping trip to Save On, in South Surrey,” writes resident Lillian Moe.
“As a senior on a fixed income and a Surrey taxpayer I should absolutely NOT have to pay for mayor McCallum’s legal defence fees. He was on his own personal time and not conducting any city of Surrey business,” writes Geoffrey Rattee.
“It’s appalling when so many of our services such as police and fire, as well as the traffic division are underfunded, that any public funds could be wasted on the legal fees of a private citizen. Unless you can show me where in his public duties as Mayor Mr. McCallum is required to go shopping at Save-On-Foods, the taxpayers of Surrey have no obligation to pay for his (alleged) Public Mischief,” says Cloverdale resident Walter van Halst.
You get the picture.
But the fact is, this is not McCallum’s invention. Rather, he appears to be sheltered under the Surrey’s Officer and Indemnification By-law and may be benefiting from a precedent set in 2015 by former Surrey First councillor Tom Gill being sued for defamation in a case that ultimately did not go to trial.
According to Rob Costanzo, general manager of corporate services for the City of Surrey, the City – meaning you, the taxpayers – “must indemnify its municipal officials (which includes Council Members and the Mayor), for legal fees to defend a prosecution in connection with the exercise or intended exercise of the official’s duties or functions.
“We understand that the prosecution for public mischief relates to an incident involving the Mayor and persons expressing opposition to the City’s policing transition which is a part of the City’s business, and to the Mayor’s statements and conduct in relation to this incident,” Costanzo explained to resident Rattee in an email Dec. 15.
“Accordingly, the Mayor’s involvement in relation to this incident was in his capacity as the City’s Mayor, a role of which extends beyond the normal workplace. On this basis it was determined by the City’s legal team that the indemnification under the City’s bylaw applies.”
However, Section 7.3 of the bylaw states that the City “will not seek indemnity against its Municipal Officials, or against Surrey Police Officers or Surrey Police Board Employees, where the actions or conduct of those Municipal Officials or Surrey Police Officers or Surrey Police Board Employees result in a claim for damages against the City by a third party, unless the Municipal Official or Surrey Police Officer or Surrey Police Board Employee has been guilty of dishonesty, gross negligence, or malicious or wilful misconduct.”
The last part of that last sentence comes straight out of Part 18, Section 738(3) of the Local Government Act.
Concern was also raised in the community in 2015 about taxpayers paying for Gill’s legal bills as he was being sued by Surrey businessman Harjit Atwal for defamation, a case that, in the end, did not go to trial. In 2015, Surrey city solicitor Craig MacFarlane told the Now-Leader that legal fees paid in Gill’s case couldn’t be released because that was a matter of solicitor-client privilege.
To date, the cost of Gill’s case to taxpayers has still not been disclosed.
“There was no direct bill that was coming to me,” Gill told the Now-Leader on Jan. 26.
Former Surrey mayor Bob Bose raised concerns in 2015, calling the city’s rationale for paying Gill’s legal bills “a stretch.” McCallum himself echoed those concerns, telling the Now-Leader in 2015 that the comments “appeared to be part of a private family wedding, and to me that’s outside of what the bylaw says.”
But Gill questions whether McCallum has had to pass through the same hoops he did for the city to determine if he is eligible to be covered for his legal costs. The Now-Leader has put this question to Costanzo and the City of Surrey’s communications department and has yet to receive a response.
“When my issue came up, they went outside city hall to get a legal opinion, In fact, they got a second legal opinion, I can’t remember what their reason or rationale was, to make sure we were all on-side with everything,” Gill said.
“So that was the context. In my understanding, that hasn’t happened in this instance. Does the policy fit within the parameters of you acting as a local politician or are you going to the grocery store?”
“We had no less than two legal opinions that were done and in both cases the legal opinion came back that this incident only arised given my situation being in politics; it wouldn’t have come up otherwise.”
That, he said, informed the city’s decision toward his being indemnified.
“How come I had to get two legal opinions to make sure I was on side?”
In December 2021, Coun. Linda Annis, the lone Surrey First councillor to be elected in 2018, issued two press releases concerning McCallum’s current situation.
In the first, under the heading “Surrey taxpayers shouldn’t be paying Mayor Doug McCallum’s Legal Bills,” emailed Dec. 11, Annis argued that “This entire embarrassing mess belongs to him personally, he brought it on himself so Surrey taxpayers shouldn’t be picking up his legal costs.”
“Are Surrey taxpayers paying his bills, or is he paying the legal costs himself?” Annis inquired in her press release.
“When you don’t get a straight answer to a straight question that usually means you’re not going to like the answer. He’s hired one of the country’s top lawyers and that means hundreds of dollars every hour.”
Three days later, on Dec. 14, Annis issued a second press release saying she’d been told by city staff that McCallum’s legal costs are privileged and strictly between him and his lawyer, Richard Peck, QC., “even though taxpayers are paying the bill.”
“Mr. Peck is one of Canada’s best lawyers, which tells me two things: this charge is very serious, and the cost to taxpayers is going to be high,” Annis said.
“It is ridiculous that the mayor gets to pick his attorney with no thought to the actual cost, and no accountability to the taxpayers who are paying the bill, regardless of the amount.”
She added that “Surrey taxpayers have every right to know what is being spent by the mayor, particularly since he is spending their money on his legal costs.”
Asked if she thinks taxpayers should have paid for Gill’s legal costs in 2015, and what the difference is between that and McCallum’s situation now, Annis had this to say.
“I have to ‘fess up because I know that Tom was sued when he was a city councillor but I don’t know the story, I wasn’t around or part of Surrey First then, I didn’t actually join until September 2018 so I’m not really familiar with this case, so it’s hard for me to really comment on that one.”
“What I would say though,” Annis continued, “if you’re out doing personal errands, and councillor or mayor for that matter, and you get into situations such as you’re shopping and something goes amiss, you should be responsible for your own legal bills. If something happens in your role as mayor, or as a city councillor, and you need to defend yourself, that’s when the indemnification should kick in.”
Meantime, McCallum’s next date in Surrey provincial court is set for Feb. 22. On Tuesday, Jan. 25, Special Prosecutor Richard Fowler confirmed to Judge Robert Hamilton, the regional administrative judge for the Fraser Region, that the Crown is proceeding summarily on the single count of public mischief.
Criminal cases are prosecuted either by indictment, summarily or a hybrid of the two. Summary offences are the least serious of the three.
A person charged with an indictable offence is required to appear in court whereas someone accused of a summary offence does not, unless a judge says otherwise. 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.
McCallum’s charge stems from his encounter on Sept. 4, 2021 with campaigners who were gathering petition signatures outside the South Point Save-On-Foods store in South Surrey for a referendum on the policing transition that resulted in the mayor claiming a car ran over his foot.
Bob Bose, who was Surrey’s mayor from 1988 until 1996 when he was defeated by McCallum, said taxpayers having to pick up McCallum’s legal bill “is of vital interest to the community.”
The “significant issue,” Bose noted, is contained in 7.3 on the indemnification bylaw.
“It strikes me that the bylaw makes the clear provision that once McCallum, if he is convicted, it will be on the grounds of dishonesty and the City will be free to recover costs,” Bose said.
McCallum, like all Canadians who face criminal charges, has the right to be presumed innocent until proven otherwise in court. A plea has not yet been taken in his case.
“I’m not a lawyer, but my reading of it tells me that… the problem for McCallum is he’s racking up a huge legal bill and if the City is able to go after him for costs, then he’s in a hell of a spot,” Bose said.
“I’ll bet you his legal bill will be $100,000 or more and if the City can recover that, he’s in big trouble. The other issue here is if he is in debt to the municipality, he’s disqualified from running for office. That’s the next shoe that drops.”