An Okanagan man who was convicted of assault with a weapon and dangerous driving after chasing two homeless people off his property with a Bobcat and injuring one of them has lost his appeal.
According to a decision posted this week, William Mcrae was convicted from the incident, which happened on Aug. 26, 2022.
The decision said the two homeless people were biking on a multi-use path in Vernon, while carrying “all of their worldly possessions.” The woman began feeling ill and they sat in some share on or within a few feet of the path, the decision said.
Mcrae and his wife believed the couple were on their lawn and phoned bylaw officers about the situation. They were told to call the police.
However, Mcrae decided to deal with the situation himself. He went and told the couple to leave before turning on his sprinklers in an attempt to soak the couple.
“When that did not have the desired effect, the appellant, who owned a landscaping business, went to get his Bobcat and put an eight-foot-wide bucket on the front of it before driving out towards the couple,” the appeal decision said. “He initially banged the bucket on the ground to encourage them to move more quickly.”
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Mcrae then used the Bobcat to scoop up the couple’s possession and push them down the path in front of a neighbouring property.
The couple tried to stop him from moving their possessions and damaging them by running near the machine, yelling and waving their arms. The man tried to hit the Bobcat with an object.
Another man tried breaking up the situation but left after a brief conversation with Mcrae after which the man was grazed by the Bobcat bucket.
The homeless man became upset after his possessions were damaged and cut a few flowers in a small area of Mcrae’s yard. In response, Mcrae drove back to the items and ran them over.
According to the decision, Mcrae then fled the scene in his Bobcat to a nearby gas station.
Following a four-day trial, Mcrae was convicted.
“The judge found that Mr. Mcrae contacted Ms. Myiot with the bucket of the Bobcat, causing her to fall to the ground, after threatening to apply force to her and to Mr. Savinainen, both of which constituted assaults,” the decision said.
“As for the second count, dangerous operation of a conveyance, the judge found that Mr. Mcrae had also contacted another individual with the Bobcat and had operated the Bobcat unsafely and in a manner that caused a significant risk of bodily harm to others.”
However, Mcrae appealed the original judge’s decision, mainly based on the judge’s handling of the evidence submitted.
Mcrae argues that the trial judge reversed the “burden of proof” regarding how the woman fell to ground when she was close to the Bobcat. He argues she may have fallen due to heatstroke as opposed to having been hit by the machine.
The appeal judge rejected that argument and said the trial judge found that both paths to conviction for the assault with a weapon charge were proven, which includes the woman being hit with the Bobcat and threats by way of gestures.
The trial judge also found that the “totality of the evidence” did not support Mcrae’s theory the woman fell because of heatstroke.
“Instead, the trial judge found that the evidence as a whole did not support the inference that she collapsed again due to heat stroke and, that even if it did, that the evidence as a whole established she was still hit by the Bobcat,” the appeal decision said. “Thus, the trial judge found that there was no reasonable doubt as to the appellant’s innocence, even after considering the appellant’s heat stroke theory.”
Mcrae argued the trial judge “misapprehended the evidence and engaged in speculative reasoning.” Specifically, he argued that the judge concluded that he was guilty of assault with a weapon based on his evidence alone.
Mcrae’s argument is that his evidence only showed that he wished to intimidate the couple and strike fear into them from a distance. He argued that based on his evidence, there was never an actual threat that he would hit them and that scaring and intimidating them is sufficient to ground a convocation, the decision said.
However, the appeal judge said the trial judge’s conclusion was based on the whole of the evidence and was not based on Mcrae’s evidence in isolation. The decision said the trial judge found “ample” evidence that Mcrae threatened to apply force to the couple and they believed he was going to hit them.
“The trial judge made findings of fact based upon his overall review of the evidence he accepted and the evidence he rejected, and his findings are entitled to deference,” the decision said.
The appeal judge said Mcrae failed to establish that the trial judge erred at law and the appeal was dismissed.
