Doug McCallum can still be found guilty of public mischief if the judge overseeing his trial finds that a political opponent did — in fact — run over the former Surrey mayor’s foot, according to the special prosecutor trying the case.
As he closed the Crown’s arguments Wednesday, Richard Fowler addressed what has become — to some extent — the elephant in the courtroom: absent any conclusive evidence one way or the other, what would it mean if Debi Johnstone did actually run over McCallum’s foot?
Fowler said the evidence still shows McCallum falsely accused Johnstone of a crime she didn’t commit.
“This is not a trial about whether or not Mr. McCallum’s foot was run over,” Fowler told Surrey provincial court Judge Reginald Harris.
“If, in fact, Mr. McCallum’s foot was run over, he has intentionally exploited what was an obvious accident by deliberately characterizing it as something it was not.”
‘There is another side’
McCallum is charged with public mischief under a section of the Criminal Code that makes it an offence to lie to police in order to see someone accused of a crime they did not commit.
The charge arises out of a confrontation that began when Johnstone called out “Resign McCallum” after spotting the mayor as she drove through a Save-On-Foods parking lot in her Mustang convertible on Sept. 4, 2021.
Johnstone is a member of Keep The RCMP in Surrey, a group opposed to McCallum’s plans to replace Surrey’s RCMP detachment with a municipal police force.
The defence had pointed to the toxic politics surrounding that issue, claiming Johnstone, in particular, had levelled profanities at McCallum and his councillors.
Fowler acknowledged the background to the case.
“It is quite clear that swearing at a public official is inexcusable in any context,” he said.
“But there is another side … no amount of hostility can justify making false statements to police.”
‘Not simply reckless hyperbole’
At the core of the Crown’s case are a series of statements McCallum made in a 911 call and a videotaped statement to police. Both are at odds with events caught on camera in CCTV footage of the incident.
Fowler claimed the 78-year-old used the word “pinned” at least 11 times in his statement to suggest that Johnstone trapped him against his vehicle.
In fact, the video shows him standing next to a small traffic island, nowhere near his car.
McCallum also told police he thought Johnstone might “peel rubber” as she “tore” away from him, where Fowler said the CCTV footage shows her making a hard right turn at low speed.
McCallum’s lawyers argued that confusion and misperception are to be expected as a result of a sudden shock like being run over by a car and that embellishment doesn’t make the essence of the complaint false.
But Fowler said McCallum waited two hours to make the 911 call and another two hours before giving his in-person statement.
He said the former mayor had time to consider his words.
“They were not simply reckless hyperbole. They weren’t statements that were made in the heat of the moment with no time to reflect on what happened.”
He said McCallum was also “not an individual without some level of sophistication.”
“Of course he was — he was running the city of Surrey. And he was dealing with very important issues. That’s part of the context too when you come to analyze the statement.”
‘I really on this one wanna go after her’
Submissions in the case include years of RCMP complaints between McCallum and members of Keep The RCMP in Surrey, with allegations levelled against each side by the other.
On the stand, Johnstone said she called McCallum a “scaly-faced motherf–ker” and was confronted with evidence that she called members of the Surrey Police Service “whores” at another protest.
The defence argued that those interactions showed the former mayor had reason to allege criminal harassment against the 66-year-old.
By contrast, Fowler said that history shed new light on McCallum’s words to police as he spoke to the officer who took his statement: “I really on this one wanna go after her.”
“We don’t know precisely what his emotional state was at the time — whether he was angry, hurt or had simply had enough of Ms. Johnstone or others that he felt were like her,” Fowler said.
“The means he chose to go after Ms. Johnstone were to make false statements to the police.”
‘McCallum is not trying to waste police resources’
Judge Harris asked a number of questions about the law and the circumstances of the case.
At one point, he pondered whether the fact that McCallum didn’t try to feign a limp might work in his favour, because that would be what a person might expect of someone lying about their foot being run over.
Earlier in the day, defence lawyer Eric Gottardi outlined the legal considerations and precedents that Harris will have to consider as he weighs the evidence in the case.
He said there are not that many cases involving the subsection of the Criminal Code under which McCallum was charged.
Among the cases he did point to were ones involving false allegations of assault made by a prisoner against a corrections officer and a phony claim that a car had been stolen.
The case involving the prisoner was quashed after a judge concluded there was evidence an assault was committed, but the prisoner was not aware a defence to assault existed.
In the case involving the stolen van, the man’s story was so “far-fetched” police didn’t investigate, but a judge found he could be convicted of an attempt to commit public mischief anyway.
Gottardi said the purpose of the law on public mischief is to protect people from false accusations and to ensure that police time is not wasted on wild goose chases.
“McCallum is not trying to waste police resources or silence an opponent,” Gottardi said.
“He simply reported very alarming behaviour from Ms. Johnstone in a long line of alarming behaviour from Ms. Johnstone.”
Harris said he expects to deliver a verdict in the week of Nov. 21.