A Vernon man's appeal of an assault with a weapon conviction that came after he allegedly struck a transient woman with a skid steer continued at the Vernon Law Courts Friday, with the Crown arguing the conviction should stand while contesting the three grounds for the appeal that had previously been put forward.
William John Mcrae was convicted of the assault as well as dangerous operation of a conveyance in May 2024, close to two years after he used a Bobcat to intimidate a transient couple who were resting in a shady spot near his property on a hot summer day, and allegedly injured one of them with the skid steer. He was sentenced to eight months of house arrest but appealed the conviction in February.
In the first appeal hearing in BC Supreme Court on February 13, Mcrae's lawyer, Julian van der Walle, laid out three grounds for the appeal: the trial judge's alleged reversal of the standard of proof, an alleged miscarriage of justice via the misapprehension of important evidence, and inferences the trial judge drew from photographs of skid steer tracks which van der Walle said relied on "speculative reasoning," and which compromised the judge's finding that Mcrae's testimony about how and where he drove the skid steer was inconsistent with these photographs.
Van der Walle had argued that an expert witness — someone with knowledge regarding the kinds of tracks a skid steer would leave — was necessary but no such expert had been called by the Crown in the trial.
When the appeal continued on May 9, Crown prosecutor Tiffany Zanatta said there was no misapprehension of the evidence by the trial judge.
"Just because Mr. Mcrae doesn't agree with the factual findings made by the judge doesn't give the case a successful ground to appeal," Zanatta said. "The trial judge appropriately balanced all evidence before him."
Zanatta said the trial judge rejected Mcrae's evidence because he found it was not credible.
The Crown lawyer said it was clear that the judge was aware of the standard of proof that the appellant is arguing was reversed. She argued there was no such reversal.
The woman who was allegedly struck by the Bobcat had fallen down due to heat stroke twice before the alleged Bobcat incident. The defence for Mcrae previously argued that because the woman did not herself recall being struck by the Bobcat, a new trial is needed to decide whether her third collapse was due to contact with the Bobcat or another bout of heat stroke.
Zanatta said it is notable that the woman was not asked if she collapsed due to heat stroke in cross-examination.
Zanatta said the evidence "was clear on one point: (the woman) was struck by the Bobcat and fell to the ground. The judge also considered her injuries, which were consistent with being struck by the Bobcat."
Mcrae had said that the woman was ill at the time of the incident, which could have contributed to or fully accounted for her ending up on the ground, without any contact from the Bobcat, but Zanatta rejected that explanation.
"The trial judge stated that there was no evidence to support the submission that (the woman) had a seizure and fell to the ground rather than being struck by the Bobcat," she said. "He would have to draw an inference that she collapsed due to heat stroke and that such an inference could raise a reasonable doubt about her falling to the ground. However, based on the evidence, he did not do that."
Zanatta also rejected the claim of a misapprehension of evidence. She said in order to establish this ground, the appellant must prove the misapprehension played an essential part in the judge's reasoning in making a conviction.
"Differing interpretations of the evidence do not count as misapprehensions, and the appellant raising such a ground of appeal faces a very high standard," Zanatta said. "A mere suggestion is not enough."
The Crown lawyer said the trial judge based his decision on the totality of evidence, including accounts from a witness who she suggested was impartial because he knew none of the people involved.
Zanatta also argued that an expert was not required to discuss the tire tracks that were photographed and used to make determinations on Mcrae's movements with the Bobcat, saying "anyone can plainly see tire tracks on the ground and can draw inferences about how many passes those tire tracks may have made." A police officer who had attended the scene had been called as a witness to analyze these tire tracks.
According to the Crown, the appellant failed to show that the trial judge's decision should be interfered with and the appeal should not be allowed.
Van der Walle spoke about Mcrae's intention to intimidate the transient pair by attaching a bucket and driving the Bobcat, emphasizing that his intention was to intimidate them "from a distance."
"He was not intending to drive at these people with the intention of making them think that he was about to run them over or hit them with the Bobcat," he said.
Van der Walle argued it was an error of law to convict Mcrae of assault on the basis of his evidence alone, saying this amounted to a misapprehension.
He took issue with the trial judge's finding that it was "pure conjecture" by the defence to suggest the woman may have fallen a third time by heat stroke, saying that reversed the onus of proof, "because it wasn't on the defence to negate that possibility."
Justice Steven Wilson said the question is really whether it was reasonable to infer that the woman fell from contact with the Bobcat and not heat stroke. Van der Walle agreed, saying the assertion that the woman's third collapse could not possibly have been from heat stroke has "serious credibility problems."
Van der Walle highlighted a point in the trial transcript where he said the Crown appeared "flustered" when asked by the judge whether the police officer who testified about the tire tracks needed to be an expert. He asserted that an expert was required in order to properly draw conclusions from the tire marks.
Justice Wilson will make his decision on whether or not to grant the appeal at a later date.
