A Vernon man who was convicted of assault with a weapon and sentenced to house arrest after he allegedly struck a woman with a skid steer in 2022 has appealed the conviction.
William John Mcrae was convicted of the assault, as well as dangerous operation of a conveyance, in May 2024, almost two years after he used a skid steer to intimidate a transient couple who were taking refuge from the summer heat near his property, and allegedly injured one of them with the machine.
Mcrae was sentenced to eight months of house arrest followed by one year of probation for the two offences following a trial.
However, Mcrae has appealed the conviction, and on Thursday, Feb. 13, he and a few supporters appeared in B.C. Supreme Court in Vernon where his lawyer, Julian van der Walle, laid out three grounds for the appeal before Justice Steven Wilson.
The first ground for appeal is an alleged error of law. Van der Walle said at a critical point of the previous trial judge's reasons for judgement, the judge reversed the standard of proof "and basically acquired positive evidence in the record for him to be willing to entertain an inference of innocence."
The second ground of appeal is an alleged miscarriage of justice.
"Perhaps the most frequent basis for alleged miscarriage of justice is exactly what we're alleging here, which is a misapprehension of important evidence ... evidence that did play a role in ultimately leading to the conviction with respect to both counts," Van der Walle said.
The final ground of the appeal is another error of law, this one based on inferences the trial judge drew from a number of photographs in the record. These photographs were of skid marks, zebra tracks and grass marks that the trial judge used "speculative reasoning" in finding that Mcrae's testimony about how and where he drove the skid steer was inconsistent with what the photographs show.
Van der Walle argued that some kind of expert witness — someone with expert knowledge in the kinds of tracks a skid steer would leave — needed to be called by the Crown. He said a police officer that attended the scene who was called as a witness was not qualified to give an expert opinion on the skid steer tracks.
The woman who was alleged to have been struck by the skid steer was susceptible to heat stroke, the court heard during the original trial. The couple were resting in a shady spot when Mcrae, having been told by bylaw to call the police to get them away from his property, took matters into his own hands and fetched his Bobcat skid steer. He used it to scoop up their bicycles and other possessions, the court heard, and afterwards had spun the Bobcat around, which is when he allegedly struck the woman with it.
The defence does not appear to be contesting many of the facts from the original trial that led to the pivotal moment in which the Bobcat, as the trial judge said, became a "weapon" that put the woman on the ground.
But the defence is contesting that pivotal moment. As van der Walle said, the woman had testified that she did not recall actually being struck by the Bobcat; it was her partner who testified that he had witnessed it. The defence lawyer explained that the woman, being susceptible to heat stroke, had by her own admission collapsed due to heat stroke twice before the Bobcat had even entered the picture. Whether her third collapse was due to being struck by the Bobcat or was another bout of heat stroke needs to be decided at a new trial, he argued.
"She didn't know how she fell to the ground the third time," van der Walle said. "There was a real air of reality, in my submission, to the defence's conjecture that it was possible that she fell a third time from heat stroke."
The lawyer said if the trial judge had simply accepted other people's evidence that the woman had been struck by the skid steer, "we wouldn't be advancing this ground of appeal." But he argued the trial judge instead came to that conclusion based on an error that was "so fundamental that it goes right to the heart of the verdict and is essentially fatal to the verdict."
That error, he said, was to put the onus on the defence to prove that the woman fell again from heat stroke.
"It is axiomatic in criminal trials that the onus rests on the Crown to prove beyond reasonable doubt all of the essential elements of the offence," said in support of the first ground of appeal.
Van der Walle said there was other evidence that could have potentially supported the trial judge's conclusion, which is why the defence is not asking for an acquittal at the appeal level but is instead seeking a new trial.
At various points in the hearing the defence called into question the reliability of the witnesses in the original trial, in particular the transient man who was with the woman allegedly struck by the Bobcat, and Justice Wilson agreed that the witness was prone to exaggeration, having said at trial that the woman had been sent "flying something like 25 feet in the air," as van der Walle recounted.
"Although there were other witnesses in this case, they were far from the greatest witnesses that the court has seen," the lawyer added.
Van der Walle said if Justice Wilson agrees with any of the three grounds of appeal, that would warrant a new trial.
By the time the defence finished at Thursday's hearing the Crown did not have time to make submissions.
The Crown will make its case at a later date, to be scheduled at a hearing on April 11.
