Former Surrey mayor Doug McCallum has been found not guilty of public mischief.
Judge Reginald Harris rendered his hour-long decision Monday in courtroom 101, Surrey provincial court’s largest courtroom.
“In my view, it defies logic that Mr. McCallum would deliberately mislead the police and then immediately suggest they get evidence, the video, that would show him to be a categorical liar and destroy his efforts to mislead,” Harris reasoned. “Logically, he would not have suggested to police to try and get a video of the event if he was intentionally misleading.”
“The presumption of innocence confirms our faith in humankind,” Harris noted. To convict on “suspicion,” he added, “would be wrong.”
McCallum, 77, was charged with one count of public mischief contrary to Section 140(2) of the Criminal Code, 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.
Doug McCallum statement: "To the people of Surrey, I love you. I love all of you." pic.twitter.com/OorKkYqJqr— Tom Zytaruk (@tomzytaruk) November 21, 2022
Following the verdict, McCallum read out a short statement, at the courthouse entrance, in which he understandably said he’s “pleased with the decision,” thanked his legal team for “their tremendous efforts in this case,” and gave a “special thanks” to his family for their support and understanding. “I appreciate also the sensitivity of the media in covering my case, and to the people of Surrey, I love you, I love all of you.”
He did not take questions.
His trial began on Oct. 31 and concluded on Nov. 9.
McCallum’s four-lawyer defence team was led by Richard Peck, K.C., opposite Special Prosecutor Richard Fowler.
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.
One of Locke’s 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.”
Former Surrey councillor Laurie Guerra, a Safe Surrey Coalition councillor who was defeated along with McCallum on Oct. 15, she tears of happiness at the verdict. She said outside court she “absolutely” thinks this case damaged McCallum’s prospects of being re-elected.
“Most of the residents in Surrey are law-abiding citizens. We don’t think for a second that our police and that our Crown prosecutor is going to charge somebody without having a really high threshold that is met in their evidence – but wrong. We were wrong. Even I second-guessed it.”
She thinks the charge was “one of the reasons” that cost him the election. “I think that paints a bad picture.”
Former Surrey councillor reacts to Doug McCallum not guilty verdict pic.twitter.com/X4DtpF6GRJ— Tom Zytaruk (@tomzytaruk) November 21, 2022
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.
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.”
“He said she had pinned him,” Fowler told the court. “That simply did not happen.”
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.”
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.
“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 argued before the court.
Defence lawyer Eric Gottardi said in final submissions it is “preposterous” to suggest there was an attempt at public mischief on McCallum’s part, and 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.
The Crown proceeded summarily in the case. Criminal cases are prosecuted either by indictment, summarily or a hybrid of the two. Summary offences are the least serious of the three.
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.
Harris noted the video confirmed McCallum was not pinned against his car and “there’s nothing to suggest that Johnstone’s speed was different from the other vehicles in the lot.” Nor did anything in the video suggest McCallum was in significant pain, the judge noted. He also considered testimony that adrenaline can suppress pain, which will start to “emerge and intensity as the adrenaline begins to wane.”
He concluded that McCallum and Johnstone being in the same place, at the same place, was a coincidence.
“Despite the coincidence of their simultaneous presence, I find their interaction resulted in Ms. Johnstone’s deliberate and targeted acts,” he said. “After confirming it was Mr. McCallum, she stealthily approached him from behind then, and without warning, she commenced a verbal assault. All of this occurred when Mr. McCallum was simply walking in a parking lot.”
As for McCallum’s claim he was pinned, Harris noted that “the courts have recognized the common sense understanding that the distortion of memory can occur during stressful or traumatic events.”
“I am satisfied beyond a reasonable doubt that Ms. Johnstone ran over his foot.”
Johnstone said she’s “disappointed” with the decision. “I remain adamant that I did not run over Mr. McCallum’s foot with my car.”