Former Surrey mayor Doug McCallum鈥檚 defence lawyer Richard Peck characterized his client as a victim of 鈥渁nimosity arising from a culture of meanness鈥� and 鈥渢oxic fanaticism鈥� in his final submissions Tuesday afternoon in McCallum鈥檚 public mischief trial.
鈥淲hen repeated it amounts to criminal harassment, and repeated it was,鈥� Peck told Judge Reginald Harris, who is presiding over the trial in courtroom 101, Surrey provincial court鈥檚 largest courtroom.
鈥淪he despised McCallum,鈥� Peck said of Deborah Johnstone, whom the mayor accuses of running over his foot with her car.
Peck said McCallum 鈥� a 鈥渄edicated public servant鈥� who as mayor 鈥渨eathered a fair share of criticism鈥� from a 鈥渟mall subset鈥� of the population 鈥� was taking a break from the 鈥渉urly burly鈥� of public life to do some grocery shopping on Sept. 4, 2021 when the event resulting in his criminal charge occurred.
鈥淔or her, it鈥檚 an opportunity,鈥� he told the judge. Peck called Johnstone鈥檚 driving the 鈥渆pitome of reckless.
鈥淚n the process his foot was run over,鈥� he said. Once Johnstone saw McCallum in the parking lot, Peck submitted, 鈥渟he targeted and stalked him. She drove her car stealthily.鈥�
McCallum鈥檚 confusion in perception was not surprising given the circumstances, Peck argued.
鈥淗e was startled,鈥� the defence lawyer said. 鈥淣aturally there was upset, confusion and distortion of memory.鈥�
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 鈥� the woman McCallum claims drove over his foot 鈥� involved Johnstone yelling and swearing at them during an event.
鈥淭he mayor didn鈥檛 react to it. We just thought that was odd behaviour.鈥�
Guerra was part of McCallum鈥檚 team on council for four years before her election defeat on Oct. 15. 鈥淯p until yesterday I was a councillor.鈥�
She testified that during a council meeting Johnstone was making 鈥渂izarre鈥� facial expressions 鈥� 鈥渒ind of goofy looking.鈥�
鈥淒ebi Johnstone told me to go F myself.鈥�
鈥淚t was a shocking display that we never experienced before,鈥� 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. 鈥淚n my opinion the line has been crossed,鈥� Guerra said, adding she felt 鈥渢errified.
鈥淚 didn鈥檛 sign up for that. It鈥檚 disgraceful.鈥�
With that, the defence closed its case.
McCallum鈥檚 first defence witness Tuesday, orthopedic surgeon Dr. Kevin Wing, testified before a packed courtroom that the former Surrey mayor鈥檚 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.
鈥淭he foot is complex,鈥� Wing said, noting it has 26 bones. He teaches at UBC, specializes in foot and ankle injuries and practices at St. Paul鈥檚 Hospital.
Defence lawyer Eric Gottardi asked what role adrenaline plays in recognizing whether you are injured or not. Wing replied it鈥檚 鈥渨ell recognized鈥� 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鈥檚 can arise from 鈥渟udden stimuli,鈥� such as reacting to a car going by, through pivoting or shifting weight.
鈥淭he answer is yes,鈥� the doctor replied.
鈥淪omething happened in conjunction with this brief interaction with this vehicle.鈥�
During cross-examination, Special prosecutor Richard Fowler noted McCallum claimed his leg and foot was run over and asked Wing if McCallum鈥檚 medical record contained anything about his leg.
Wing told the court McCallum underwent a 鈥渇oot-slash-ankle exam.鈥� Asked if swelling can be caused by aging or high blood pressure, Fowler testified a history of hypertension wouldn鈥檛 鈥渢rigger鈥� him to expect to see swelling in the foot.
Fowler asked if there was anything in McCallum鈥檚 medical record indicating inconsistency between his left foot and right foot.
鈥淐orrect,鈥� Wing replied. He said if the left foot was the source of the complaint he wouldn鈥檛 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 鈥渧ery dangerous鈥� manner. 鈥淚 really on this one want to go after her,鈥� McCallum told police.
Special prosecutor Richard Fowler said 鈥渢he question will be鈥� if McCallum intended to mislead police into believing she had done something illegal 鈥渂y making false statements to the police with the intention to cause Ms. Johnstone to be suspected of having committed an offence.鈥�
The court reviewed CCTV footage from the grocery store鈥檚 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. 鈥淚t became unpleasantries between the two of us, back and forth,鈥� Johnstone testified. 鈥淚t 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.
鈥淚 swore at him,鈥� she testified. 鈥淚 made a reference to him having a scaly face. I called him a scaly-faced motherf鈥�-er.鈥�
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鈥檛 hear, feel or see anything unexpected and doesn鈥檛 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鈥檚 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鈥檚 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鈥檚 mayor. Brenda Locke, of Surrey Connect, defeated him for the mayor鈥檚 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 鈥渢o seek outside legal for an opinion regarding the city鈥檚 obligation.鈥�
Meantime, the court heard last week the Surrey RCMP had a seven-member team investigating McCallum鈥檚 complaint.
鈥淧retty extraordinary isn鈥檛 it?鈥� defence lawyer Richard Peck, K.C., asked Crown witness Sgt. Andre Johnny, the prime investigator, to which the officer replied, 鈥淣o.鈥� Johnny told the court he couldn鈥檛 conclusively say whether McCallum鈥檚 foot had been run over.
McCallum鈥檚 911 call reporting the alleged hit-and-run was played in court, with him telling the dispatcher Johnstone 鈥渏ust about hit me, actually鈥� and 鈥渟he ran over my leg and foot.鈥�
鈥淪he鈥檚 harassed me before,鈥� McCallum told the dispatcher. 鈥淪he called me a piece of shit.鈥�
Asked if he needed an ambulance, McCallum told the dispatcher he could drive with his right foot to hospital but his left foot was 鈥渧ery numb.鈥� McCallum later told the Surrey RCMP during a 58-minute interview at the station that 鈥渟he just floored it. I thought she was going to peel rubber.鈥�
鈥淚t looked like she just purposely wanted to clip me,鈥� 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鈥檚 defence began its case with a declaration that the evidence presented by the Crown falls 鈥渕arkedly short鈥� 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鈥檚 right rear wheel, that the vehicle 鈥渞olled over鈥� McCallum鈥檚 foot as he was 鈥渞elatively鈥� standing still, and that feet can be run over resulting in no fractures.
鈥淏one injuries are not to be expected at low speed,鈥� he said. The absence of fractures in McCallum鈥檚 case 鈥渄oes not mean that his foot was not run over.鈥�
He brought out a skeleton foot model in court as a visual aid. They also discussed a journal called 鈥淔oot and Ankle International,鈥� which drew some chuckles from the gallery.
During cross examination, Chimich told Fowler he didn鈥檛 calculate horizontal acceleration but 鈥渦sed mass as my guide鈥� for vertical force. He did not know the state of the tire鈥檚 inflation, he said, nor did he physically examine McCallum鈥檚 shoes but saw photos. Fowler asked him what minimal force is required to cause visible injuries on a foot inside a sock and shoe. 鈥淚 don鈥檛 know,鈥� Chimich replied.
The defence鈥檚 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鈥檚 arm 鈥渏erk back鈥� 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鈥檚 gait after the incident. 鈥淚 couldn鈥檛 tell,鈥� 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鈥檚 left foot but 鈥渕oderate鈥� soft-tissue swelling on the outside of the foot 鈥渢oward the small toe.鈥� During cross-examination, Basseri told Fowler he never physically observed McCallum鈥檚 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.
tom.zytaruk@surreynowleader.com
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