R. v. McCallum, 2022 BCPC 261

Citation: R. v. McCallum 2022 BCPC 261 Date: 20221121 File No: 247139-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Court REX v. DOUGLAS WILLIAM MCCALLUM REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE R. HARRIS Counsel for the Crown: R. Fowler, K.C. and M. Smith Counsel for the Defendant: R. Peck K.C., E. Gottardi, K.C. and L. Vandergust Place of Hearing: Surrey , B.C. Date of Hearing: October 31, November 1, 2, 8 and 9, 2022 Date of Judgment: November 21, 2022 INTRODUCTION

[ 1 ] In September 2021, the accused, Mr. McCallum, gave a statement to the police accusing Ms. Johnstone of pinning him with her car, running over his foot, driving quickly and heavily accelerating. The police started an investigation and their initial findings caused them to question the veracity of his accusations. Ultimately, Mr. McCallum was charged with public mischief alleging he intentionally mislead the police by making false complaints against Ms.

Johnstone, and that he did so with the intention that she be suspected of having committed offences that she did not commit. [ 2 ] A trial was held wherein Ms. Johnstone, a police officer, two engineers, one radiologist, a former councillor and an orthopaedic surgeon testified. Several exhibits were filed including; CCTV footage, medical records, transcripts of Mr. McCallum’s 911 call, an overhead photograph and Mr. McCallum’s statement to the police. [ 3 ] The central issue for determination is whether the evidence proves beyond a reasonable doubt that Mr.

McCallum intentionally mislead the police and if so, was it his intention that Ms. Johnstone be suspected of offences she did not commit? BACKGROUND [ 4 ] In 2018, Mr. McCallum was elected Mayor of Surrey. One of his campaign platforms involved cancelling the RCMP policing contract and replacing them with a municipal police force. With this in mind, and shortly after his election, Mr. McCallum and his council, started taking steps toward fulfilling their platform promise. [ 5 ] The decision to cancel the RCMP contract caused discord within the community of Surrey.

Through this discord, a group called Keep the RCMP in Surrey, (“KTRIS”) formed. The objective of this group was to initiate a reconsideration regarding the decision to cancel the RCMP contract. Then, and for the purpose of achieving their objective, KTRIS commenced a series of tactics. [ 6 ] Some of the tactics involved; letter writing campaigns, appearances at council meetings, and the distribution of information to members of the public. At times, some of their tactics were loud and forward.

Ultimately, the group began to petition the public hoping to force a referendum. [ 7 ] As time progressed, some persons within KTRIS became increasingly forward in their efforts to change council’s decision. In this regard, they became disruptive and rude at council meetings, they staged protests in front of Mr. McCallum’s home, they attended councillor Guerra’s home, and they would yell and swear at Mr. McCallum and councillor Guerra when they were at public events. Matters escalated to the point where phone calls were received indicating that Mr.

McCallum’s life might be at risk and on another occasion, a letter was received stating there was a bomb in Mr. McCallum’s home. Some of these incidents resulted in police investigations. To my understanding, and importantly, there is no evidence directly linking KTRIS or its members to the threats. THE EVIDENCE [ 8 ] Below is a review of the salient evidence. Although I have considered all of the evidence, I have not reviewed those aspects of the evidence that are minor or irrelevant. Unchallenged evidence and admissions [ 9 ] In September 2021, Mr. McCallum was the Mayor of Surrey and Ms. Johnstone, opposed Mr.

McCallum’s style of governance. Ultimately, they had an encounter in the parking lot at the South Point Shopping Centre. At the time of the encounter, Mr. McCallum was walking and Ms. Johnstone was driving her car. The encounter was heated and ended when Ms. Johnstone drove away. [ 10 ] Immediately after the encounter, Mr. McCallum went directly to Mr. Scott, the founder of KTRIS, and he complained that Ms. Johnstone ran over his foot. Mr. McCallum then went into the Save-On-Foods where he remained for 45 minutes. [ 11 ] After leaving the Save-On-Foods, Mr. McCallum drove to the District 5 RCMP office.

The office was closed so Mr. McCallum called 911 and he reported his encounter with Ms. Johnstone. After speaking with the 911 operator, Mr. McCallum drove to the Peace Arch Hospital where he was examined and x-rays were taken. The examination and x-rays revealed a contusion and swelling to Mr. McCallum’s left foot. [ 12 ] After leaving the hospital, Mr. McCallum returned to the RCMP District office and he met with Cst. Pulzoni. During this meeting, Mr. McCallum gave a video recorded statement alleging that Ms.

Johnstone used her car to pin him against his car, that she deliberately ran over his foot, that she had heavily accelerated and that she had been driving quickly. [ 13 ] During the interview, Mr. McCallum’s feet were photographed and he consented to the release of his related medical records. He also suggested to Cst. Pulzoni that the police try and obtain video footage of the interaction from Save-On-Foods. Then, and a few days after his statement, Mr. McCallum voluntarily provided the shoes he had worn during his interaction with Ms.

Johnstone to the police. [ 14 ] The police ultimately obtained video showing the interaction between Mr. McCallum and Ms. Johnstone. Owing to obstructions and angles, the video is inconclusive on whether or not Mr. McCallum’s left foot was run over. The video confirms Ms. Johnstone did not pin Mr. McCallum against his car. It also confirms Ms. Johnstone was not driving quickly or heavily accelerating. EVENTS IN THE PARKING LOT Ms. Johnstone [ 15 ] On September 4, 2021, Ms. Johnstone was driving a silver Mustang convertible with the top down.

At approximately 9:40 a.m. she drove into to the South Point Shopping Centre with the intention of volunteering with KTRIS. Ms. Johnstone was early for her volunteer shift so she decided to get a coffee. With this in mind, she drove north in the parking lot from 152nd Street. She noticed a long line-up at the coffee shop so, rather than wait for coffee, Ms. Johnstone decided to find the other volunteers.

[ 16 ] In an effort to locate the other volunteers, Ms. Johnstone turned west on the east west access road at the north end of the parking lot. She then turned south at the second parking lane and as she drove down the lane she saw a person who resembled Mr. McCallum. Ms. Johnstone continued driving and on reaching the access road running parallel to and in front of the Save-On-Foods, she stopped and she watched the person she thought was Mr. McCallum. Then, and when the person was approximately 15 feet away, Ms. Johnstone confirmed the person was Mr. McCallum. At this stage, Ms.

Johnstone’s car was facing toward the Save-On-Foods and approximately 18 inches to 2 feet from a small traffic island that was adjacent to the passenger side of her car. [ 17 ] From the above position, Ms. Johnston yelled, “resign McCallum.” Mr. McCallum then changed his direction and he walked in front of her car and along the passenger side. As Mr. McCallum neared the passenger door, Ms. Johnstone rolled down the passenger window. Mr. McCallum then stopped, and according to Ms. Johnstone’s testimony, he was now standing on the traffic island and approximately 3-4 feet from her passenger door.

She testified she could see his upper torso, that he did not touch her car, nor, did he move closer. [ 18 ] Once alongside the car, Mr. McCallum asked Ms. Johnstone what she had said and she repeated, “resign McCallum”. The two engaged in un-pleasantries. Ms. Johnstone told Mr. McCallum that he was the worst mayor that Surrey has ever had. She said he was mean spirited, a liar and that he would not be re-elected as mayor. She called him a scaly faced motherfucker, she said, “fuck you” to him on a few occasions and she acknowledged she could have called him a shit head. As for Mr. McCallum, Ms.

Johnstone testified he stated her group was not allowed to be there, that they were no good for Surrey, and that the group had multiple lawsuits. Thereafter, and according to Ms. Johnstone, he threatened to call bylaw officers and Ms. Johnstone responded by saying she would call the RCMP. At some point during the exchange, Mr. McCallum said something to the effect that Ms. Johnstone had a big mouth and that she needed to learn to keep her mouth shut. [ 19 ] During the exchange Ms. Johnstone was angry and she felt that Mr. McCallum was also angry. The exchange lasted approximately a minute and it ended when Ms.

Johnstone pulled forward and turned right onto the east west access road. Ms. Johnstone drove slowly and she yelled, “you’re evil”. Prior to pulling away Ms. Johnstone did not tell Mr. McCallum that she was going to pull away and when she started to move Mr. McCallum was still on the traffic island. Ms. Johnstone testified she did not hear Mr. McCallum say anything once she was moving. She also testified she did not feel anything unusual as she pulled away, and that she is confident that she did not drive over Mr. McCallum’s foot. [ 20 ] After Ms.

Johnstone pulled away, she started looking for her group and a parking spot. Eventually Ms. Johnstone parked and she joined her fellow volunteers who had positioned themselves near the west end of the Save-On-Foods. Shortly thereafter, Ms. Johnstone saw Mr. McCallum approach Mr. Scott, the founder of KTRIS, and she saw the two having a discussion. After the discussion, Mr. McCallum turned and walked away. Mr. Scott then approached Ms. Johnstone and asked if she had driven over Mr. McCallum’s foot and she replied no. [ 21 ] Later that afternoon, Ms.

Johnstone was at home when the police contacted her and asked her to come to the police station. Ms. Johnstone voluntarily attended the police station where she participated in an interview regarding her interaction with Mr. McCallum. [ 22 ] After testifying to the above events, Crown counsel showed Ms. Johnstone a video showing the events in the parking lot. After viewing the video, Ms. Johnstone acknowledged her earlier testimony was incorrect.

Specifically, she did not drive north when she entered the parking lot, rather, she turned west on the access road in front of the Save-On-Foods and then right in the next parking lane, she then immediately turned right again, and she travelled east through two empty parking stalls. She then turned right as she neared the end of the stalls and she stopped at which point she shouted at Mr. McCallum. [ 23 ] Ms. Johnstone explained she performed the U-turn around the traffic island because she wanted to confirm if the person she saw was Mr. McCallum.

On cross examination, she agreed she thought it was her lucky day when she thought she saw Mr. McCallum. She testified she believed he was headed to confront the volunteers and have them removed. Ms. Johnstone acknowledged she intended to confront Mr. McCallum and tell him to resign. [ 24 ] Ms. Johnstone was questioned about other interactions with Mr. McCallum and she confirmed one occasion of protesting outside his home. She also confirmed an earlier interaction where she told Mr. McCallum that she was the bitch that would bring him down. Ms.

Johnstone also confirmed that she had been briefly banned from attending city council meetings. [ 25 ] In cross examination, it was suggested to Ms. Johnstone that she wanted to intimidate Mr. McCallum and she responded, she wanted to show that she was not going to be small and that she was not going to go into a corner and shut up, rather, she conducted herself in a manner to make herself known. [ 26 ] Ms. Johnstone was questioned about harassing events that she has experienced.

In this regard, she was asked about dog feces being left at her residence, a false rental advertisement that interfered with her tenant, and an incident where she alleges someone drove by in a dark SUV and pointed a gun at her. She was asked who she thought was responsible. Ms. Johnstone responded that she thought Mr. McCallum’s group was responsible but not him personally. Video of the parking lot [ 27 ] A video camera located at the north east entrance of the Save-On-Foods and facing toward the parking lot captured events relevant to the instant matter.

I have reviewed the video several times and as per Crown counsel’s suggestion I have compared the apparent speed of other vehicles with the speed of Ms. Johnstone’s vehicle. The relevant portions of the video are as follows. [ 28 ] At approximately 9:08 a.m. Mr. McCallum drove into the parking lot and parked on the east side. At 9:54 a.m. Ms. Johnstone entered the lot and she turned west on the access road in front of the Save-On-Foods. She then turned right and then right again effectively doing a U-turn around the traffic island and through empty parking stalls toward Mr.

McCallum who, by this stage, had exited his car and was walking diagonally in a south westerly direction toward the entrance of the Save-On-Foods. [ 29 ] When Ms. Johnstone reached the end of the parking stalls she started to turn right and while her car was still moving through the

turn, Mr. McCallum stopped and turned toward Ms. Johnstone’s car which was behind him, to his right and moving toward him. Mr. McCallum started walking toward the passenger side of Ms. Johnstone’s car and she slowed to a stop without fully completing her turn. Ms. Johnstone then rolled down the passenger window as Mr. McCallum continued walking to the passenger side. As he walked he appeared to step on and off of the traffic island. He then stopped at Ms. Johnstone’s passenger door. At this stage, Mr.

McCallum appears to be directly at the passenger door with the traffic island immediately behind him. [ 30 ] The parties then engage for approximately 57 seconds, after which, Ms. Johnstone moved forward and completed her turn. Just as the right rear wheel of Ms. Johnstone’s car passed Mr. McCallum’s left leg he looked down and brought his arms back and he turned to his right facing the rear of Ms. Johnstone’s departing car, which was now, in the process of making an immediate right turn onto the access lane in front of the Save-On-Foods. While Ms.

Johnstone was making her turn, two persons in the area stopped what they were doing and they turned and looked toward the general area of Mr. McCallum and Ms. Johnstone. Ms. Johnstone, then completed her turn and she drove west on the access road. [ 31 ] Immediately, after Ms. Johnstone drove away, Mr. McCallum walked west along the access road and he briefly interacted with Mr. Scott. Thereafter, Mr. McCallum turned around and walked into Save-On-Foods. [ 32 ] The video confirms several points. First, the passage of time between the arrival of Mr. McCallum and Ms.

Johnstone suggests their encounter was happen stance. Second, Ms. Johnstone’s vehicle did not pin Mr. McCallum against his car. Third, Mr. McCallum does not appear to see Ms. Johnstone’s car until she is behind him, to his right, and moving toward him. Fourth, Ms. Johnstone’s car appears to momentarily lurch forward just as she is driving away at the end of her interaction with Mr. McCallum. Fifth, there is nothing to suggest that Ms. Johnstone’s speed was different from the other vehicles in the lot. Sixth, at no time did Mr. McCallum limp or display behaviours suggesting he was in pain or discomfort.

Seventh, the video does not confirm if Mr. McCallum’s left foot was run over. Mr. Heinrichs – Mechanical Engineer [ 33 ] Mr. Heinrichs was qualified as a Mechanical Engineer capable of offering an opinion regarding accident reconstruction and video analysis. [ 34 ] For the purpose of providing an opinion, Mr. Heinrich attended the parking lot and he took a 3D scan of the area. He then generated a virtual scene wherein, and with the assistance of the video, he was able to offer an opinion regarding the Mustang’s position when Ms. Johnstone was interacting with Mr. McCallum.

From this, he was also able to offer an opinion regarding the Mustang’s arc of travel and the tracking of the rear wheels. [ 35 ] Despite the video and the 3D scan, Mr. Heinrichs could not identify Mr. McCallum’s precise position when he was at the side of the Mustang. Without this information, Mr. Heinrichs could not offer an opinion on whether Mr. McCallum’s foot had been run over. Nevertheless, he did opine that Mr. McCallum’s possible positions made it possible that his foot could have been run over, provided, he was close enough to the Mustang at the relevant time. [ 36 ] Mr.

Heinrichs was asked if he noted any variations in Mr. McCallum’s gait after the interaction. Mr. Heinrichs testified the different framerates made it impossible to determine if Mr. McCallum’s gait changed. MR. MCCALLUM’S REPORTS TO THE POLICE Mr. McCallum’s 911 call [ 37 ] At approximately 12:16 p.m., Mr. McCallum called 911 and stated he wanted to report a hit and run that happened approximately 45 minutes earlier. He then described walking toward the Save-On-Foods and Ms. Johnstone pulling alongside of him and almost hitting him.

He described her car as a white convertible and he indicated he took a photograph of the licence plate. [ 38 ] After the above, Mr. McCallum explained that Ms. Johnstone had previously harassed him. He then outlined details regarding the parking lot interaction and he described Ms. Johnstone as driving off and screaming while she was looking back, which he said was dangerous. He also said she ran over his leg and foot. Further details provided included, advising he told Mr. Scott (the founder of KTRIS) that Ms.

Johnstone had driven over his foot, that he had driven to the RCMP office to report the incident, that he was calling from the RCMP parking lot, that his foot was numb and that he was going to Peace Arch Hospital. Mr. McCallum’s statement to the police (taken after he had gone to the hospital) [ 39 ] Once finished at the hospital, Mr. McCallum went to the RCMP District office where he gave an audio video recorded statement describing the interaction in the parking lot and some earlier experiences with Ms. Johnstone. The general areas mentioned involved; Ms.

Johnstone pinning him with her car, her driving over his foot, her harassment of him and her speed of driving. Below are the salient portions of his statement. [ 40 ] The statement starts with a general introduction by the investigator, Cst. Pulzoni ,where he identified himself, he stated the file number and he stated he would be getting a statement in relation to a hit and run. After this introduction, Cst. Pulzoni offered Mr. McCallum water and he told him to speak up if he needed anything. Cst. Pulzoni then instructed Mr.

McCallum to take his time and he told him that he wanted all of the information from start to finish. [ 41 ] Mr. McCallum then described his interaction with Ms. Johnstone and in his initial description, he described entering the parking lot and where he parked. He then stated he started to walk down the side of his car to the back and that a white-tone convertible suddenly pulled up and in his words, “…and literally just about pinned me in.” Mr. McCallum stated the car was “sort of” touching him. He explained that Ms. Johnstone was yelling at him, and that people were looking and getting upset and mad. Mr.

McCallum said Ms. Johnstone then floored her car and he thought she was going to peel rubber. He explained she was at the end near the entrance and she turned right, however, as she ”tore” out she came closer to him and turned into him running over the top of his foot. He said that he yelled out to her “hold it, hold it you just ran over my…” but she did not respond and she drove off yelling. Of note is, later in his

statement he stated he yelled, “You just ran over my foot.” [ 42 ] After describing the above, Mr. McCallum described approaching Mr. Scott and telling him that Ms. Johnstone had hassled him, and that she “tore off “and purposely turned right running over his foot. [ 43 ] Mr. McCallum told Cst. Pulzoni that he wrote down Ms. Johnstone’s licence number, that he thought the car was sort of a light colour, and a Mustang. He provided Ms.

Johnstone’s name and he commented on her group harassing councillors, and he stated what happened in the parking lot was a clear case of harassment and probably hit and “drive off”. [ 44 ] Cst. Pulzoni asked Mr. McCallum details regarding where he had parked his car and after providing this information, Mr. McCallum transitioned into describing the event again. During this description, Mr. McCallum stated he walked to the back of his car to turn right and Ms. Johnstone came out of nowhere and “just pinned me, actually, against my car basically.” Thereafter, Mr.

McCallum repeated the verbal interaction and he stated Ms. Johnstone’s car was touching him, and that he was on the passenger side. He then stated she took off, turned into him and ran over his foot. He described that she had to turn because she could not go straight. [ 45 ] Within the statement Mr. McCallum described how he was surprised when Ms. Johnstone appeared. He stated she came up awfully fast because it startled him. He explained he felt picked out and targeted. He told Cst. Pulzoni that he wanted the officer to investigate, that he wanted to go after Ms.

Johnstone and he wanted to proceed with charges. [ 46 ] Mr. McCallum was cooperative with Cst. Pulzoni. In this regard, he agreed to have his foot photographed, he signed a release giving the officer access to his medical records, he pointed out a red mark on his foot, and within a few days of the interview he voluntarily turned over the shoes that he had been wearing when he interacted with Ms. Johnstone. Lastly, and during the interview, Mr.

McCallum displayed an apparent eagerness to assist the officer in that he suggested that the officer go to Save-On-Foods and see if there is any video capturing the interaction. Video of Mr. McCallum at the RCMP office [ 47 ] A video showing Mr. McCallum meeting Cst. Pulzoni in the parking area of the RCMP office and walking with him into the office, was admitted in evidence. In the video, Mr. McCallum is walking normally and there is nothing about his movements or behaviour to suggest he was in any discomfort. MEDICAL EVIDENCE Mr. McCallum’s medical records [ 48 ] Before giving his statement to Cst. Pulzoni, Mr.

McCallum went to the Peace Arch Hospital. He was examined by an emergency room physician and x-rays were taken of his left foot. Records related to Mr. McCallum’s hospital attendance were admitted in evidence. From the records the following is of note. [ 49 ] Mr. McCallum reported to the emergency room staff that his left foot had been run over and he was experiencing tingling, as well as, mild – dull pain on the top of his foot. On examination, a contusion was noted and no visible swelling was observed. It was also noted that Mr.

McCallum walked with a steady gait and he was able to weight bare. [ 50 ] The Medical Imaging Report prepared by Dr. Basseri notes that the x-rays of Mr. McCallum’s foot revealed moderate soft tissue swelling along the lateral aspect of his left foot. [ 51 ] On discharge from the hospital, Mr. McCallum was advised to take Tylenol as required and to seek further medical attention if required. Dr. Basseri – Radiologist [ 52 ] Dr. Basseri is a medical doctor with a specialty in medical imaging. [ 53 ] On September 4, 2021, he was working at Peace Arch hospital and he was tasked with examining the x-rays of Mr.

McCallum’s left foot. Dr. Basseri looked at Mr. McCallum’s x-rays and thereafter, he authored a Medical Imaging Report. After reviewing his report he testified that Mr. McCallum’s x-rays revealed moderate soft tissue swelling along the lateral aspect of his left foot. Dr. Basseri described the lateral aspect as being the area outside of the left foot, running from approximately the mid foot forward toward to the small toe. [ 54 ] In cross examination, Dr. Basseri confirmed he did not examine Mr. McCallum’s foot, nor, did he view comparative x-rays of the right foot.

He acknowledged soft tissue swelling is a qualitative assessment and that swelling could be caused by a number of things. He also confirmed he could not date the swelling, nor, could he state the cause of the swelling. He confirmed that the swelling coordinates with a diagnosis of a contusion. Videos from the hospital [ 55 ] Videos from the exterior and interior of the hospital were admitted into evidence. The videos show Mr. McCallum as he approached and exited the emergency department. There is also video of Mr.

McCallum in the reception of the emergency department. [ 56 ] A review of the hospital videos show that Mr. McCallum was walking without a limp or difficulty. Further, nothing in the videos suggest that Mr. McCallum was in significant pain or discomfort. Dr. Wing – Orthopaedic Surgeon [ 57 ] Dr. Wing is an Orthopaedic Surgeon with a specialty in foot and ankle injuries, and he was qualified as an expert witness capable

of giving opinion evidence related to foot injuries and possible causes. In considering this matter, Dr. Wing received and reviewed Mr.McCallum’s medical records and two electronic redacted files of a phone call. [58] After reviewing the materials, Dr. Wing formed the opinion that Mr. McCallum’s reported tingling and mild pain, combinedwith the diagnosed contusion and the Medical Imaging Report documenting moderate swelling, were consistent with the mechanism ofinjury as described by Mr. McCallum in the hospital records and in his 911 call. [59] In terms of pain and onset of symptoms, Dr.

Wing testified that pain and swelling can have a delayed onset. He testified thatadrenaline, in minor injuries, can supress the immediate sensation of pain and that the pain sensation will start to emerge and intensify asthe adrenaline begins to wane. In support, he cited his experience with workers. Specifically, it is not uncommon for a worker who hasinjured themselves at work, to finish their day and go home. Then, and throughout the evening, they begin to feel some pain and onwaking the next day their pain has increased to such a degree that they seek medical attention. [60] Dr.

Wing was asked about the possibility of Mr. McCallum feigning an injury and he testified the medical records, Mr.McCallum’s report of tingling and dull pain, combined with his self-report of having his foot run over, argues against a feigned injury. Mr. Chimich – Biomechanical Engineer [61] Mr. Chimich was qualified as a Biomechanical Engineer capable of giving opinion evidence regarding the biomechanics ofinjury and mechanism of injury. [62] In preparing his opinion, Mr. Chimich consulted Mr.

McCallum’s medical records, the video capturing the event, and heidentified the mass and mass distribution for 2014 Ford Mustang convertibles. He also made assumptions regarding the accuracy of thevideo, Mr. McCallum’s footwear, and his foot positioning at the time of the incident. [63] With the above in mind, Mr. Chimich testified the absence of a fracture or abrasions does not rule out Mr. McCallum’s left footbeing run over. He also testified, if the right rear tire ran over Mr. McCallum’s left foot as it travelled from left to right past Mr.McCallum, then the lateral aspect of Mr.

McCallum’s left foot would have been the first point of contact, thereby providing an injurymechanism for the swelling noted in the x-ray report. [64] Mr. Chimich testified that it is possible for a vehicle to drive over a foot (in the manner described by Mr. McCallum) withoutcausing a fracture. In reaching his opinion, Mr. Chimich relied heavily on two studies.

The first involved conclusions drawn fromdocumented barefoot roll over incidents primarily involving children, and the second, was a controlled study using detached lower limbsfrom cadavers wherein a vehicle of similar weight to a Mustang was used, the speed of the vehicle was documented, as was the vehiclestire pressure. [65] In cross examination, Mr. Chimich acknowledged he did not know the speed of Ms. Johnstone’s vehicle when it moved past Mr.McCallum, nor did he know the pressure of the tires on her car.

He also acknowledged the differences between dead tissue and livetissue, and how the age of the cadaver tissue can make a difference in the study. LEGAL PRINCIPLES Public Mischief [66] The Crown alleges Mr. McCallum’s conduct violated section 140(1)(

b) of the Criminal Code. This

section reads: 140(1) Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by (

b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has notcommitted, or to divert suspicion from himself; [67] In R. v. Dueck, 2011 ABPC 54, Judge Creagh set out the elements of public mischief at para. 58: [58] To prove this offence, the Crown must prove beyond a reasonable doubt: 1. that the accused communicated false information to a peace officer, causing the peace officer to enter into an investigation, and 2. he did so with the intent to mislead the police officer. Presumption of Innocence and Proof beyond a Reasonable Doubt [68] Mr.

McCallum is presumed to be innocent and this presumption remains until the Crown proves each element of public mischiefbeyond a reasonable doubt. The presumption of innocence is a fundamental legal principle embracing all persons charged with a criminaloffence. The importance of this principle and the values it represents is highlighted in R. v. Oaks, (SCC), [1986] 1 SCR103 at para 29 wherein Justice Dickson C.J. (as they then were) observed: 29 The presumption of innocence is a hallowed principle lying at the very heart of criminal law. Although protected expressly in s.11(

d) of the Charter, the presumption of innocence is referable and integral to the general protection of life, liberty and security of theperson contained in s. 7 of the Charter (see Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, per Lamer J.) Thepresumption of innocence protects the fundamental liberty and human dignity of any and every person accused by the State of criminalconduct.

An individual charged with a criminal offence faces grave social and personal consequences, including potential loss ofphysical liberty, subjection to [page120] social stigma and ostracism from the community, as well as other social, psychological andeconomic harms. In light of the gravity of these consequences, the presumption of innocence is crucial. It ensures that until the Stateproves an accused's guilt beyond all reasonable doubt, he or she is innocent. This is essential in a society committed to fairness and socialjustice.

The presumption of innocence confirms our faith in humankind; it reflects our belief that individuals are decent and law-abiding

members of the community until proven otherwise. [69] Proof beyond a reasonable doubt is an equally important aspect of Canadian criminal law. It operates in tandem with thepresumption of innocence, in that the presumption of innocence can only be displaced if the evidence proves the accused guilt beyond areasonable doubt. The burden of proving the case beyond a reasonable doubt rests with the Crown and never shifts to the accused.Simply, it is for the Crown to prove the accused’s guilt beyond a reasonable doubt.

The accused, who is constitutionally cloaked ininnocence, never has to adduce evidence of their innocence, and to impose such a requirement violates the principle of presumption ofinnocence. [70] Proof beyond a reasonable doubt is proof to a high standard, it is not proof to an absolute certainty, it is not proof beyond anydoubt, nor is it an imaginary or frivolous doubt. Lastly, proof beyond a reasonable doubt requires more than a suspicion of guilt or aconclusion that the accused is likely guilty. To convict based on a suspicion or a likelihood would be wrong: R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320 at para. 36. [71] It must be remembered that a reasonable doubt is doubt that is not be based on sympathy or prejudice, rather, it must be groundedin reason and common sense that is logically connected to the evidence or the absence of evidence, and not conjecture or speculation. SUBMISSIONS OF COUNSEL Crown Counsel [72] The Crown argues all of the evidence proves beyond a reasonable doubt that Mr. McCallum is guilty. Specifically, heintentionally misled the police with the intention that the police suspected Ms.

Johnstone of several offences that she did not commit andthereby he caused the police to enter into an investigation. [73] In support, the Crown argues the presence of motive, the number and severity of misleading statements, combined with Mr.McCallum’s comments regarding wanting to go after Ms. Johnstone, as evidence from which Mr. McCallum’s intentions can be inferred. [74] As for the police investigation, the Crown argues the evidence shows that Mr. McCallum’s statement triggered a policeinvestigation. In support, the Crown points out Mr.

McCallum stated he wanted an investigation, and as a result, the police gatheredevidence and they questioned Ms. Johnstone. [75] The Crown highlights this case is not about the report of a hit and run, but involves the reporting of a number of suggestedalleged offences including assault, dangerous driving and leaving the scene of an accident. [76] Lastly, and in response to the suggestion, that emotional shock and upset explain the errors in Mr. McCallum’s statement, theCrown argues the passage of time between the incident and the statement, Mr.

McCallum’s relaxed state while giving his statement, andthe correctness of some details within his statement, are facts negating the suggestion that Mr. McCallum’s inaccuracies were theproduct of emotional stress. Counsel for Mr. McCallum [77] Counsel for Mr. McCallum argues the Crown has failed to prove the elements of public mischief beyond a reasonable doubt. Inthis regard, they argue the evidence shows Ms. Johnstone drove over Mr. McCallum’s foot, and his statement in this regard is completelytrue. [78] As for inaccuracies, counsel makes two arguments.

First, the statements were not made with the intention to mislead, rather theywere the product of Mr. McCallum having been involved in a frightening stressful event. Alternatively, the inaccuracies andembellishments relate to peripheral details and not the core of Mr. McCallum’s complaint of hit and run. FINDINGS Motive [79] This issue is considered first because a finding of motive will be some circumstantial evidence relevant to whether Mr.McCallum intentionally misled the police throughout his statement. [80] As noted in R. v.

Lewis, (SCC), [1979] 2 SCR 821, evidence of motive is particularly important in circumstantialcases, specifically, in relation to the issue of intention. [81] Motive is not an essential element of the offence of mischief, rather, it is relevant to prove criminal responsibility in anyallegation, simply, it makes it more likely than not that the accused (the person with motive) committed the offence: R. v. Roncaiolo,(2011), 2011 ONCA 378 , 271 C.C.C. (3d) 385 ONCA.

In other words, the accused had a specific reason for committing theoffence and that reason is evidence that they committed the offence. [82] On the issue of motive, the Crown argues the history between Mr. McCallum and Ms. Johnstone combined with their interactionon September 4, 2021, frustrated Mr. McCallum, thereby triggering a motive of revenge against Ms. Johnstone. [83] In considering the issue of motive, the tension between Mr. McCallum and Ms. Johnstone is without question, and it is acceptedthat their interaction on September 4, 2021, undoubtedly diminished Mr. McCallum’s opinion of Ms.

Johnstone and in fact may havefrustrated Mr. McCallum. Despite this, I am unable to conclude that Mr. McCallum’s frustrations with Ms. Johnstone motivated him tointentionally make false statements. [84] As for my conclusion, Mr. McCallum is an experienced politician who in his words, has thick skin. I interpret this to mean thathe is accustomed to being the target of negative attention, thus, it is unlikely that this particular case, even with his earlier experiences,

would frustrate him to such a degree that he would immediately embark on revenge through a labyrinth of false claims. Second, the immediacy of Mr. McCallum’s claim that Ms. Johnstone ran over his foot, his cooperation with the police, and his hospital attendance is suggestive that his claims were based on reality and not a concocted story fuelled by revenge. THE ENCOUNTER [ 85 ] When I consider all of the evidence, I conclude the simultaneous presence of Mr. McCallum and Ms. Johnstone at the South Point Centre parking lot was a coincidence. I accept Ms.

Johnstone’s testimony that she was at that location to volunteer. Similarly, I accept Mr. McCallum’s statement that he was at the centre to go shopping. [ 86 ] Despite the coincidence of their simultaneous presence, I find their interaction was the result of Ms. Johnstone’s deliberate and targeted acts. In this regard, and against the backdrop of her displeasure with Mr. McCallum, she stalked and tracked the person she thought was Mr. McCallum, then, and 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 while Mr. McCallum was simply walking through a parking lot. [ 87 ] In support of my findings, I rely on Ms. Johnstone’s testimony and the video. Specifically, Ms. Johnstone testified she thought it was her lucky day when she thought she saw Mr. McCallum. She testified that it was her intention to confront him and thereafter she U- turned around the parking island driving toward the person she believed was Mr. McCallum. In doing so, she approached Mr. McCallum from the rear and to his right. Then, and while moving toward him, she yelled at him, and it was only at this point that Mr.

McCallum turned and saw Ms. Johnstone. Speed of approach [ 88 ] As for Ms. Johnstone’s speed of approach, I have reviewed the video and compared her speed with the other cars and I see nothing to indicate that her speed varied significantly. Nevertheless, this finding does not preclude Mr. McCallum from reasonably perceiving Ms. Johnstone drove quickly toward him. I observe, Ms. Johnstone approached Mr. McCallum from behind and that when he first saw her she was in an area that he likely noted as being vacant only moments earlier as walked toward Save-On-Foods. For these reasons, it is conceivable that Ms.

Johnstone’s sudden appearance in an area that was previously empty, caused Mr. McCallum to mistakenly assume she was driving fast. In fact, in his statement he explained he thought the car was going fast because it startled him. He did not say he watched it approach. [ 89 ] Although, Ms. Johnstone was not driving quickly, Mr. McCallum’s perception that she approached quickly and out of nowhere was reasonable, and although the word “suddenly” might have been more accurate, it would be unrealistic to expect witnesses to state their observations with linguistic precision.

Accordingly, I am unable to conclude that Mr. McCallum’s description of Ms. Johnstone approaching quickly was intentionally misleading, nor is it some evidence capable of supporting an inference that Mr. McCallum was intentionally misleading throughout his statement. The claim of being pinned by Ms. Johnstone’s car [ 90 ] The video proves beyond a reasonable doubt that Mr. McCallum was not pinned or almost pinned against his car by Ms. Johnstone. The Crown argues these statements were intentionally misleading and argues against the notion that the stress of the event distorted Mr. McCallum’s memory.

In response, the defence concedes the statements are inaccurate, however, they argue Mr. McCallum did not intentionally mislead; rather, they argue that the stress associated with the interaction distorted his memory. In essence, Mr. McCallum’s belief about being pinned is an honest yet mistaken belief. [ 91 ] After considering all of the evidence, I am satisfied Mr. McCallum found the entire event shocking, significantly frightening and likely upsetting. In his regard, Ms. Johnstone’s approach was sudden, unexpected and from behind. During the interaction, her language and tone were aggressive and hostile.

Throughout, she subjected Mr. McCallum to an onslaught of vile and abusive language. Then, and likely adding to Mr. McCallum’s stress, she suddenly drove off over his foot. [ 92 ] Further to the above, and as a matter of common sense, the totality of Mr. McCallum’s related experiences likely contributed to the fear and anxiety that he experienced. As for his previous experiences, Mr. McCallum has had protestors (including Ms. Johnstone) outside his home, he has previously experienced Ms.

Johnstone’s verbal confrontations, he has received threatening letters and he has received a bomb threat indicating there was a bomb in his home. [ 93 ] In dealing with the issue of Mr. McCallum’s fear and its impact on his statement, the Crown argues, Mr. McCallum’s statement was taken hours after the event, thus giving him ample opportunity to calm and relax. The Crown also points to Mr. McCallum’s relaxed demeanour as displayed throughout his statement and finally, the Crown points to several details that Mr.

McCallum correctly recalled during his statement, as evidence that his memory was not distorted. [ 94 ] I accept Mr. McCallum correctly recalled some details, however, I note many of the details are ones in which he had some familiarity. In this regard, he regularly shopped at that the South Point Shopping Centre so his recollection of where he parked is not very telling. Similarly, he had previously interacted with Ms. Johnstone, thus, his ability to describe her is not surprising, it is also not surprising that, Mr. McCallum a previous Mustang owner, identified Ms. Johnstone’s car as Mustang.

Finally, I observe that getting some details correct does not negate the possibility that anxiety and fear may have distorted recollection related to other portions of an event. [ 95 ] As for Mr. McCallum having had an opportunity to calm down prior to his statement, respectfully, this misses the point. The consideration of the impact of anxiety and fear on memory primarily involves the anxiety and fear at the time the event is witnessed, not at the time of the statement. The courts have recognized the common sense understanding that the distortion of memory can occur during stressful or traumatic events: R. v.

Perlett, (2006), 212 C.C.C. (3d) ONCA at para. 103. [ 96 ] In my view, the emotional state when details are recalled and repeated is generally of little moment, conversely, the emotional state at the time the event is observed is of significant relevance. This is why the analysis of witness reliability devotes much attention to

a witness’ state of mind at the time of the event. [ 97 ] Mr. McCallum’s suggestion to the police that they get a video of the event, is an important fact in considering if his statements about being pinned were intentionally misleading or if they were due to a distorted memory. In my view, it defies logic that Mr. McCallum would deliberately mislead the police and then immediately suggest they get evidence (video) that would show him to be a categorical liar and destroy his efforts to mislead.

Logically, he would not have suggested to the police that they try and get a video of the event if he was intentionally misleading. His actions in suggesting that the police try and get a video, strongly suggests his statements regarding being pinned were not intentionally misleading. [ 98 ] In considering the issue, I have collectively considered Mr. McCallum’s related experiences, Mr. McCallum’s age, Ms. Johnstone’s sudden approach, the intensity of the interaction, the allegation that his foot was run over, and Mr.

McCallum’s suggestion to the police that they obtain a video of the event, and I conclude the fear and stress of the interaction likely distorted Mr. McCallum’s memory. As such, I am not satisfied that his statements regarding being pinned were intentionally misleading. Was Mr. McCallum’s foot run over? [ 99 ] Turning to the issue of Mr. McCallum’s foot being run over, I am satisfied beyond a reasonable doubt that Ms. Johnstone ran over his foot. My conclusion relies on the following; Mr. McCallum’s position on the road and his proximity to Ms. Johnstone’s car, Ms. Johnstone’s path of travel and Mr.

McCallum’s reaction of looking down as Ms. Johnstone’s right rear wheel passed his left leg, Mr. McCallum yelling, “hold it hold it” and his immediate report to Mr. Scott. Mr. McCallum’s 911 call and his hospital attendance where he reported feeling some pain and he complained his foot was run over, the medical records confirming injuries (swelling and contusion) in locations consistent with Ms. Johnstone’s right rear tire rolling over Mr. McCallum’s foot, and Mr. McCallum’s cooperation with the police investigation.

I also, reply on the opinion evidence, noting that the absence of a fracture does not mean that Mr. McCallum’s foot was not run over. In

summary, the physical evidence, the medical evidence, the video, Mr. McCallum’s conduct after the event and his claims convincingly leads to the conclusion that his foot was run over. [ 100 ] In concluding the above, I have considered Ms. Johnstone’s testimony that she did not drive over Mr. McCallum’s foot, and I find her testimony on this point unreliable. I observe Ms. Johnstone’s belief on this point is likely tainted by her perspective that Mr. McCallum was standing on the island at the relevant time, and not based on her actually seeing the tire travel past Mr. McCallum.

The importance of this point is, if Ms. Johnstone honestly but mistakenly believed that Mr. McCallum was standing on the island, then it would have been impossible for her to have run over his foot. Simply, there is a risk that Ms. Johnstone’s belief that she did not run over Mr. McCallum’s foot was an inference based on where she thought Mr. McCallum was standing and not on what she saw. [ 101 ] As for Ms. Johnstone not feeling or hearing anything indicating she had run over Mr. McCallum’s foot, I place little weight on the fact that she felt nothing.

This is because, I have no evidence informing whether or not is was likely that she would have felt something. I appreciate she would have likely felt something if the claim was she drove over something larger than a foot, however, given the general size and profile of a foot, I cannot conclude what significance, if any, should be attached to her evidence of not feeling anything. [ 102 ] Turning to Ms. Johnstone’s testimony, wherein, she testified that she did not hear anything, in the circumstances, this fact does not lead to the logical inference that Mr. McCallum did not shout, “hold it hold it”. I suspect Ms.

Johnstone’s yelling, her focus, her direction of travel, and being in a convertible, all prevented her from hearing Mr. McCallum’s shouts. [ 103 ] Although not mentioned above, I have considered if the fear and anxiety of the event may have distorted Mr. McCallum’s memory or perception regarding his foot being run over. In my view, there is ample objectively verifiable evidence confirming Mr. McCallum’s assertion regarding his foot, thus, I conclude his statements on this point are reliable and true. Ms. Johnstone’s acceleration [ 104 ] Turning to Mr. McCallum’s comments suggesting Ms.

Johnstone heavily accelerated when she ran over his foot, from reviewing the video, I see nothing indicating a heavy and prolonged acceleration. At most, I observe a momentary and minor lurch as Ms. Johnstone started to pull away, however, and almost instantaneously, her speed levels to being slow and consistent. In my view, this finding does not lead to an automatic conclusion that Mr. McCallum was deliberately misleading. This is because the entirety of the interaction supports the view that his mistaken perception was reasonable in the circumstances. Facts in support include, Ms.

Johnstone’s sudden presence, Mr. McCallum being surprised and frightened, the heated exchange, Ms. Johnstone’s sudden departure, and Mr. McCallum’s foot being run over. In all of these circumstances, it is entirely understandable how a 77 year old in Mr. McCallum’s position could have perceived that Ms. Johnstone accelerated heavily. CONCLUSION [ 105 ] In considering all of the evidence, I find that Mr. McCallum’s left foot was run over and that Ms. Johnstone did not stop when this occurred. Accordingly, Mr.

McCallum’s statement to the police regarding his foot being run over was truthful and not made with the intention of falsely accusing Ms. Johnston of an offence. Moreover, and in the circumstances, Mr. McCallum’s comments about wanting and investigation and wanting to go after Ms. Johnstone, were entirely consistent with what he experienced. [ 106 ] As for the statements of being pinned, I find that Mr.

McCallum was never pinned and although his statements in this regard were wrong, I am satisfied that the statements were a product of distorted memory, accordingly, I cannot be satisfied beyond a reasonable doubt that his inaccuracy was intentional. [ 107 ] I do not see Mr. McCallum’s perceptions regarding speed and acceleration as significant in all of the circumstances. In my view, the statements reflect reasonable perceptions and not evidence capable of supporting an inference that he was trying to mislead the police. [ 108 ] For the above reasons, I find Mr. McCallum not guilty.

_____________________________ The Honourable Judge R. Harris Provincial Court of British Columbia