A Vernon man convicted in 2024 of assaulting a transient woman with a Bobcat skid-steer has had his appeal dismissed.
William John Mcrae had appealed the conviction that stemmed from an August 2022 incident when a man and a woman experiencing homelessness got off their bikes and stopped to rest in a shady area near a walking path at the edge of Mcrae's property on a hot summer day.
Mcrae believed the pair were on his lawn and phoned bylaw. Instead of calling police as bylaw had instructed he decided to "deal with matters by himself," B.C. Supreme Court Justice Steven Wilson wrote in his decision on the appeal.
After asking the couple to leave and then turning his sprinklers on to soak them, he retrieved his Bobcat and attached a large bucket with the intent of intimidating them. After banging the bucket on the ground, he used it to scoop up the couple's possessions and push them down the path.
The transient pair tried unsuccessfully to stop Mcrae from damaging their possessions by running near the Bobcat, yelling and waving their arms. The man tried to hit the Bobcat with an object.
An unknown man hailed down Mcrae and after a brief conversation Mcrae ended up grazing him by twitching the Bobcat bucket.
The transient man, upset that his worldly possessions had been damaged, cut a few flowers from one of Mcrae's flower beds near the path. In response, Mcrae drove back to their possessions and ran over them. He then fled the scene in the Bobcat to a nearby gas station, according to the decision.
Following a four-day trial, Justice Jeremy Guild convicted Mcrae of assault with a weapon and of dangerous operation of a conveyance, having found that Mcrae had contacted the transient woman with the Bobcat, causing her to fall to the ground, and noting that he'd grazed the unknown man.
Mcrae raised three grounds of appeal: that the trial judge erred by reversing the onus of proof on a critical point of his analysis; that the judge misapprehended evidence that was central to his reasoning that led to the convictions on both counts; and that the judge had relied on speculative reasoning.
The transient woman had suffered two instances of heat stroke just prior to the Bobcat incident, and the appellant argued it was unclear whether she had fallen to the ground due to a third bout of heat stroke or because of contact with the Bobcat. This was the basis for the appellant's argument that the standard of proof had been reversed.
But Justice Wilson wasn't buying it, saying the trial judge had instead found that the evidence as a whole didn't support the idea that the woman collapsed again by heat stroke, and even if it did, the evidence had established she was still hit by the Bobcat.
"The trial judge did not reverse the burden of proof, and his factual findings are entitled to deference," Wilson wrote. "I see no error in the judge's analysis and this ground of appeal must fail."
The judge also dismissed Mcrae's other two grounds of appeal, again saying that the trial judge had made his decision based on the totality of evidence before him and had not misapprehended that evidence. Wilson said the trial judge had found "ample evidence" to support that Mcrae had threatened to — and did, in the case of the woman — apply force to the transient pair by operating the Bobcat.
Mcrae had argued the trial judge had refused to allow his lawyer to cross-examine one of the investigating police officers regarding various skid marks made by the Bobcat and then went on to make findings of fact based on his own conclusions regarding the skid marks. He also argued an expert in analyzing skid-steer tracks needed to be called as a witness.
Justice Wilson rejected these arguments.
"I accept that there are often circumstances where expert evidence may be required to interpret tire tracks in dangerous driving cases," he wrote. "However, in this case the judge did not interpret the tire tracks in terms of speed or manner of driving, other than to confirm where the Bobcat was driven...Conclusions drawn from observations of photographs such as the presence or absence of tire tracks on different areas, the presence of tire tracks under an undamaged bike wheel, and the scattering of bikes and personal effects, are all within the purview of the trial judge’s knowledge."
Wilson ultimately rejected the appeal, meaning the conviction will stand.
Mcrae had been sentenced to eight months of house arrest in August 2024.
