[1]         This is an unfortunate case of an otherwise law abiding citizen making assumptions about two vulnerable people. This is a case about an otherwise law abiding citizen taking the law into his own hands. And this case is a result of his assumptions and subsequent drastic actions.

[2]         This case arose from Mr. Mcrae’s frustration with what were described as homeless, transient or street people trespassing and loitering on his property, which he said had happened a few times earlier in the summer, and in particular that week. There was no suggestion that the two people in this case had stopped at or been on his property previously.

[3]         On August 26, 2022 Ms. Tia Myiot (Ms. Myiot) and Mr. Antonio Savinainen (Mr. Savinainen) were riding their bicycles from downtown Vernon towards Kin Beach on Okanagan Lake. They were on a multi-use path made for pedestrians, bikes and other non-motorized transport. They were going for one last visit to the beach before leaving Vernon to get away from the drug subculture, and to deal with their substance use disorder, commonly referred to as an addiction. They had all of their possessions in the world on their bicycles and in a couple of packs. Ms. Myiot had been living on the streets since she was 12 years old, and was about 33 years old at the time of the incident. The couple were hoping to have a pleasant few hours before continuing with their recovery plans.

[4]         Ms. Myiot was susceptible to heat stroke and had to stop, as it happened in front of Mr. and Mrs. Mcrae’s property. She and Mr. Savinainen sat in some shade on or within a few feet of the path. The Mcraes, who were in their 60’s, had owned and operated a landscaping business out of their four acre residential property for over three decades. Mr. Mcrae saw the couple and believed they were on his lawn. Mrs. Mcrae arrived home from a landscape job and saw two people laying down she believed just off the path, on their lawn in the shade of a tree. She went into their residence and the Mcrae’s talked about what they should do about the two people they believed were on their lawn. They telephoned bylaw officers, who apparently told them to call police. The Mcraes did not.

[5]         Instead, they decided to get the “street people” off their property by Mr. Mcrae using a skid-steer Bobcat (which they used in their landscaping business) to move the couple’s personal effects. Mr. Mcrae went outside, approached and told them to leave. They responded and started to move, although they did not think they were doing anything wrong, as they believed there were on public property. Mr. Mcrae could not understand or properly hear what they said. He says he did not speak to them any more, but went to and turned on a sprinkler with the intent of soaking Ms. Myiot and her boyfriend, as they were not moving fast enough for him. Mr. Mcrae thought that the couple may have been asleep, but saw they had started moving as a result of being soaked.

[6]         They again did not move quickly enough for Mr. Mcrae, who immediately went to get his Bobcat, and put on the largest bucket he had to intimidate and strike fear into Ms. Myiot and Mr. Savinainen. He drove it towards the couple. They were within a few feet of their effects, gathering them while Ms. Myiot was still recovering from heat stroke. Mr. Mcrae banged the large metal bucket on the ground and then drove and scooped up their packs and bicycles.

[7]         Mr. Mcrae pushed the couples’ worldly possessions over 100 feet on the asphalt path. The Bobcat took up the entire path, which was between his property and a public grass boulevard bordering a major thoroughfare. He dumped their effects on the boulevard in front of his neighbour’s property. He gave no reason for having to push them there, as opposed to just ensuring the effects were not on his property. He gave no reason why he chose to push them in front of his neighbour’s property.

[8]         Unsurprisingly, Ms. Myiot and Mr. Savinainen tried to stop him from moving and damaging their effects, running near the Bobcat, yelling and waving their arms. Mr. Mcrae ignored them. Another unknown male also hailed down Mr. Mcrae, who stopped the Bobcat very close to the male, such that the male was between the bucket and the body of the Bobcat. After a brief conversation Mr. Mcrae “twitched” the bucket, grazing the male with it.

[9]         Mr. Savinainen was angry, in part because their effects were damaged. He used a chain to try to stop the Bobcat and a hand saw to damage a few flowers in the Mcrae’s flower bed near the path. Mr. Mcrae drove back to their effects and ran over them on purpose to damage them further. He then fled to a nearby gas station to avoid police.

[10]      The Crown alleged that in the course of operating the Bobcat, Mr. Mcrae committed two offences: he assaulted Ms. Myiot with the Bobcat, and his operation of the Bobcat was dangerous.

[11]      The Crown called six witnesses: the complainant Ms. Myiot, her then boyfriend Mr. Savinainen, two police officers who arrived after a 911 call, and two independent witnesses. Mr. Graw was driving by, became alarmed at what he saw, stopped and helped Ms. Myiot and called 911. Mr. Vo knew the Accused and saw him enter a nearby Chevron gas station where Mr. Vo worked. There were also a number of photographs of the scene taken by police and Mr Mcrae. Mr. Mcrae and his wife testified for the defence.

[12]      On Mr. Mcrae’s evidence, he operated the Bobcat and planned to use it to intimidate Ms. Myiot and Mr. Savinainen. The Bobcat therefore became a weapon. Also on his own evidence he threatened to apply force to Ms. Myiot and Mr. Savinainen. Ms. Myiot and Mr. Savinainen clearly believed on reasonable grounds that the Bobcat could hit her. That was an assault.

[13]      I also reject Mr. Mcrae’s evidence that he made no contact with anyone with the Bobcat. He did hit the unknown male. He would not feel it with machine. It is inconsistent with tire marks he admitted were caused by him on the path and grass boulevard. He admitted he lost sight of Ms. Myiot. Hitting her in the shin was also an assault with a weapon.

[14]      Mr. Mcrae “twitched” the bucket on purpose to graze the unknown male with it. Mr. Mcrae had thousands of hours of experience operating a Bobcat. I reject his evidence that he operated the Bobcat the same way he would at work. I cannot imagine he would purposefully try to hit an employee or other person at a work site. He operated the Bobcat recklessly. It was obviously unsafe and carried a significant risk of bodily harm. That alone would be a marked departure from the actions of a reasonable prudent operator and be sufficient to convict Mr. Mcrae.

[15]      But it would be obvious to anyone that Ms. Myiot and Mr. Savinainen would not want Mr. Mcrae to push their possessions along an asphalt path, so they would likely be around the Bobcat trying to stop him from doing so - especially when Mr. Mcrae went back to drive over their possessions. The tire marks do not show just one pass over their belongings as Mr. Mcrae testified, but are consistent with doing tight turns as the Crown’s witnesses described, in close proximity to people.

[16]      Hitting the unknown male was a marked departure from the standard of a prudent operator. So was the assault on Ms. Myiot; and so was most of his operation of the Bobcat.  

[17]      I now explain why I have convicted Mr. Mcrae on both Counts.

[18]      Although there were no formal admissions, by the end of the trial it was clear that identification, time, date, jurisdiction and that Ms. Myiot did not consent to any assault were not in issue. The Mcraes both testified that Mr. Mcrae drove the Bobcat.

[19]      The issues regarding the assault allegation were whether Mr. Mcrae intentionally applied force to Ms. Myiot, and whether the Bobcat was a weapon. The issues with respect to dangerous driving were whether the operation of the Bobcat was dangerous, and whether the accused knew or ought to have known that the manner of driving was dangerous.

[20]      The issues depended on whether the Crown had established the necessary facts, so the central issue was the credibility and reliability of Ms. Myiot, Mr. Savinainen and Mr. Graw for the Crown, and Mr. and Mrs. Mcrae for the defence. I will assess the evidence of the Crown witnesses, followed by Mr. Mcrae’s evidence. Mrs. Mcrae did not see most of the incident, and her evidence was otherwise not controversial.

[21]      Although there is a conflict in the evidence with respect to whether Ms. Myiot and Mr. Savinainen were on the Mcraes’ property, that is irrelevant except insofar as it provides context, because it is not an essential element of either offence, and defence of property was not raised. Although it was submitted that Mr. Mcrae was entitled to move the belongings off his lawn, he did not comply with the requirements of the Trespass Act[i]. Even assuming, without deciding, he was so entitled, he was still required to take reasonable care of their personal property; and he would only be entitled to move the couple’s possessions off his property, not push them 30 meters over asphalt with a Bobcat’s steel bucket after the possessions were off his lawn. Any lawful authority to touch their belongings ended at the property line.

[22]      I have not expressly referred to all of the evidence or submissions in this proceeding. I have focused on the evidence that forms the basis of my factual findings and the legal implications that flow from them. I have referred to evidence that I accept or reject, and the reasons for those conclusions. If I do not refer to evidence or submissions, that does not mean it has not been considered. The Crown does not have to prove each piece of evidence beyond a reasonable doubt, because I am not supposed to treat any witness’ evidence in a piecemeal fashion. I must examine the evidence as a whole, including the absence of evidence.

[23]      Ms. Myiot testified that her ability to recall events was impacted by memory loss from being hit by the Bobcat and other factors. She was very soft spoken, and although her manner might lead many to dismiss her, she was generally clear and coherent in giving her testimony, and displayed good recall on a number of points.

[24]      She recounted how she and Mr. Savinainen were biking with all their possessions for one last visit to Lake Okanagan before leaving Vernon. She was suffering from the heat as often occurred, and had not used any drugs for a few days because she was trying to stop. She was sure she sat down on the path, not on grass, in the shade of some shrubs. She was dizzy and recalled that a man came out of a house and yelled at her and Mr. Savinainen, angrily and forcefully. She did not know why. She recalled trying to get up but collapsing. She did not recall being sprayed with water, but heard a loud machinery noise coming from the property where the yelling man had gone. She then saw a Bobcat come towards them while she was sitting on the ground. Mr. Savinainen was trying to get her up. She was scared and concerned they might get hurt, given the man’s demeanour when yelling. The Bobcat shovelled their belongings, which were in front of them, to what she called a ditch, and then demolished them. She was close to the Bobcat, tried to get the driver’s attention and waved to find out why he was destroying their property. She had no further recollection until coming-to on the paved path, with a woman tending to her.

[25]      Mr. Mcrae postulated in submissions that Ms. Myiot 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. I reject that submission.

[26]      First, there was no direct evidence to support it. Ms. Myiot did not admit it was possible that she had a seizure which could have accounted for her inability to recall the period between waving at the Bobcat and coming-to on the ground. She agreed that she had “passed out”, that she had not fully recovered from heat stroke when the Bobcat first came, and that heat stroke had led to her inability to recall some matters before the Bobcat first came towards them. There was no evidence she had a seizure. Concluding she had would be speculation.

[27]      The only other illness was heat stroke. I would have to draw an inference that it would be possible for her to collapse again as a result of heat stroke; and that such an inference raised a reasonable doubt about the cause of her falling to the ground. Ms. Myiot was not asked if it was possible that she collapsed again from heat stroke. There was no expert evidence on that point. Accordingly, the factual basis for that submission is tantamount to saying that anything is possible. There is so little to support that submission, it would be equivalent to conjecture to find the necessary facts. Further, it is not consistent with other evidence I accept that she was hit by the Bobcat. Finally, even if it was a partial cause of her collapse to the ground, that does not negate the possibility that she was hit, which also caused her to fall, or that the fall led to her hitting her head and being concussed, which was also a contributing factor to her lack of memory.

[28]      Ms. Myiot testified she had pain in her neck, back, head and left leg when coming-to on the ground. She identified bruises on her head, leg and shoulder in photographs. She also recalled seeing Mr. Savinainen and another man trying to stop the Bobcat from wrecking everything they owned, and the Bobcat attacking that man. She believed he was injured.

[29]      Apart from the precise location of where they were on the path before the Bobcat came, her testimony is the same as most of the other evidence in this case. Her injuries are consistent with other evidence that she was hit by the Bobcat and knocked to the ground. Her recollection of Mr. Savinainen and an unknown male trying to stop the Bobcat, with the man being injured (and therefore hit by it), is consistent with Mr. Mcrae’s and other evidence.

[30]      As acknowledged by the Crown and argued by the defence, Mr. Savinainen’s testimony was not reliable unless corroborated by other evidence. His recollection of the order of events was confused, he exaggerated his role in trying to defend Ms. Myiot and attacking the Bobcat, and he was argumentative. Still, his overall narrative and recollections are not entirely removed from reality.

[31]      He agreed with Ms. Myiot’s evidence that she suffered heat stroke, they stopped in some shade on the path, and a man came out and yelled at them. He added that the man then sprayed them with water by turning on a sprinkler. They got soaked. He was trying to help Ms. Myiot get up and leave. Mr. Savinainen started gathering and drying some of their effects, getting ready to leave. The man then came with a Bobcat from the house area, and he heard a bucket drop onto the bike path and come down it grinding, and ultimately pushed their effects down the path. That is all consistent with Mr. Mcrae’s evidence and I accept it.

[32]      Mr. Savinainen said the Bobcat was coming directly towards them and was about 10 feet away, so he pushed Ms. Myiot out of the way then moved out of the way himself. I accept that testimony as accurate in the context of all the evidence. He says she was then hit by the Bobcat. I do not accept that timing. He clearly confused that with when she was struck later. I also do not accept that when she was hit she “flew” 25 feet in the air; but I accept she was struck, went to the ground as a result of the hit and was knocked out, since it accords with Ms. Myiot’s and Mr. Graw’s evidence.

[33]      Mr. Savinainen testified that the Bobcat destroyed their personal effects by grinding them into the ground, similar to how Ms. Myiot described it, and he described how the Bobcat was being operated. Mr. Savinainen had driven skid-steers previously and knew how they were operated. He testified that it did a 360, and described that as a skid-steer turn, with one side’s wheels stopped while the other side’s wheels moved, resulting in a spin without moving forward. I accept that as an accurate description of the Bobcat’s movement, as it is consistent with Mr. Graw’s description and the photographs of the wheel marks. How he defined a 360 did not necessarily mean the machine went around in a complete circle.

[34]      Mr. Savinainen said that the Bobcat spinning on their possessions led to them being strewn about. I accept that as it is consistent with Mr. Graw’s evidence and the photographs. Mr. Savinainen said that all of their personal effects were destroyed, including cash. I accept that, though not every detail, as it accords with Ms. Myiot’s evidence and the evidence generally, including photographs, about driving over and spinning on their personal effects. His description of Ms. Myiot’s injuries were consistent with hers and the photographs, and I accept that testimony.

[35]      Mr. Graw was a supervisor at a company in Vernon that dealt in heavy equipment, including skid-steers generally and Bobcats specifically. He also operated and trained people how to properly and safely operate skid-steers. He was not qualified as an expert and I do not treat his evidence as such. Rather, I consider it is similar to that of a police officer. It is evidence viewed through a particular lens of experience, but it is not to be given any special weight.

[36]      Mr. Mcrae submitted that Mr. Graw’s evidence was unreliable because it was “inaccurate, inconsistent, exaggerated and driven by anger and emotion”[ii]. The basis for that submission was the descriptors he used in testifying about what he saw: horrific, horrendous, and awful; and that his emotions led him to deliberately falsify his evidence, or at least be inaccurate and therefore unreliable.

[37]      Although there were inconsistencies in his evidence, I reject the submission that his evidence was entirely unreliable and in particular that he was not credible. There is no basis for concluding he was fabricating evidence. He was a neutral witness. He did not know anyone. He was shocked by what he saw, as a result of his knowledge and experience with respect to the operation of heavy equipment. From his perspective, what he saw demonstrated intentionally using the Bobcat as a weapon. It is that which caused his revulsion – it was beyond belief that a Bobcat was being operated so dangerously.

[38]      Although his testimony by itself may be cause for concern, when coupled with the other evidence in this case, and in particular the photographic evidence, I find I am able to rely on his evidence. It is that corroboration that makes his overall evidence reliable, perhaps not as to every precise detail, but very much as to what he saw with respect to the operation of the Bobcat, and also with respect to it hitting Ms. Myiot. It was not disputed that the photographs taken by police and Mr. Mcrae accurately depicted what they portrayed.

[39]      Mr. Graw was driving his daughter down Okanagan Landing Road going towards Vernon from the direction of Kin Beach. He proceeded through the intersection near the Chevron gas station and saw a Bobcat near some cedar hedges, doing what he described as a bunch of 360’s on some people’s belongings. When he first saw the Bobcat driving over bicycles and personal effects, he pulled off to the side of the road and called police. He got out of his vehicle and saw two people standing where the Bobcat was driving over the belongings. He described how the two people were running around frantically, yelling and screaming, and that there was lots of commotion.

[40]      He walked towards the mayhem and testified that he was 20 to 30 yards away when he saw the Bobcat, with its bucket off the ground, drive towards the people and hit the woman in her shin. He thought he saw a fair amount of blood as a result. Mr. Graw was able to identify where he had stopped his vehicle in a photograph, which makes his estimate of distance reasonable. It also accords with Mr. Mcrae’s testimony. Mr. Graw testified that after running over the bikes and hitting the woman, the Bobcat backed up and went south on the path (whatever the compass direction, he meant towards Kin Beach). Mr. Mcrae’s evidence was to the same effect. Mr. Graw watched as the Bobcat crossed the street and went into an area at the nearby Chevron gas station Mr. Graw frequented. Mr. Mcrae also went to that gas station often. Mr. Graw was able, in broad terms, to identify the driver of the Bobcat and recognized him as somebody that he had seen in the area a number of times previously. He also testified the driver ran a landscape company. How he knew that was not explored, but that was true.

[41]      Mr. Graw described the Bobcat spinning on the peoples’ belongings, saying there was “at least one maybe two 360’s”. He was not asked to describe what he meant by the term “360”. Mr. Graw testified that the photographs showed what he had seen and described in his testimony. He identified the skid-marks he says he saw the Bobcat make. Those skid-marks appear to show more than one passage over the area where the bikes and personal effects were. They show at least one tight turn on the path and grass. There were many rubber marks on the asphalt near where Ms. Myiot was lying after being hit, consistent with more than one turn. The photographs show Ms. Myiot had an injury to her shin. They show that there was a red drink near her that appeared to have the colour of blood. Cst. Hamilton, who took those photographs, also saw what he thought was blood in the same location, but only on inspection determined it was a spilled beverage that looked like blood. That supports Mr. Graw’s perceptions regarding Ms. Myiot bleeding.

[42]      In cross examination, Mr. Graw provided further details, including that the woman was facing sideways and closer to him than the Bobcat, roughly where she was on the ground in the photographs, and that when driving over their belongings, the Bobcat came within a foot of the male and female, who were beside it. In the photographs, Ms. Myiot was lying on the ground, very close to the skid-marks. 

[43]      Mr. Graw was quite confident that the bucket was 4 feet wide, but he was mistaken. Mr. Mcrae would know the size of the bucket. He said that it was 7 ½ feet wide, and the path 8 feet wide. The photographs show the bucket took up almost the entire path. Mr. Graw agreed that when he was calling 911, it looked to him like the male and female had been run over by the Bobcat, which is how he described it on the call. It is not surprising that in the heat of the moment his description may not have been as accurate as his statement to the police or his testimony at trial, but it certainly gives the overall tenor of what he saw: he testified it looked like the Bobcat operator was trying to hurt people.

[44]      Mr. Graw testified that the personal effects were originally in a pile, that the Bobcat drove over them and spun around, flinging out the belongings. That accords with Ms. Myiot’s and Mr. Savianainen’s evidence. It is also consistent with Mr. Mcrae’s testimony that he moved all of their belongings in one pile and later drove over them. It is consistent with the photographs that show the belongings strewn about.

[45]      Mr. Mcrae testified he did a three point turn, which I understood to mean he turned some, stopped, went in the opposite direction while turning some, stopped and went again in the opposite direction. He also said he only went in one direction over the belongings, in contradiction to some of his other evidence, everyone else’s evidence, and the tire marks in the photographs. Mr. Mcrae’s evidence is clear that he was reversing at times. He admitted he did not have a good view of where people were when they were in close proximity to the machine, especially while reversing.

[46]      Whether there was actually a full 360 degree turn, a spin less than a full 360 degrees, or turning while going back-and-forth, I am satisfied beyond a reasonable doubt that Mr. Mcrae was operating the Bobcat and spinning it around quickly on the victims’ personal effects, causing them to be ejected from under the wheels and scattering them. All the items being strewn about required rapid movement, rather than a slow and controlled single pass only over the bikes, as Mr. Mcrae testified. That may explain why, in the chaos and danger, it looked like a skid-steer turn, or a 360 turn.  

[47]      Mr. Vo’s evidence was not disputed. He testified that Mr. Mcrae came in to the gas station, asked for Mr. Vo’s father (the owner, who was not there) and said that someone had fought a Bobcat and lost. Mr. Mcrae then went to the washroom and did not come out until police got him about 15 minutes later. According to Cst. Dobernigg, a hallway continued past the washroom to a storage room, where Mr. Mcrae was found by police, around a corner sitting and typing on his cell phone.

[48]      The picture one gets is that Ms. Myiot and Mr. Savinainen were very agitated, screaming and yelling at Mr. Mcrae, trying to get him to stop destroying their only possessions in the world, while he operated the Bobcat so as to move and destroy their effects, at times within a foot of people. The Bobcat hit Ms. Myiot. Operating a Bobcat in such a manner, that close to people who would not necessarily be visible, created an obvious and significant risk of injuring those people.

[49]      At the time of the offence, Mr. Mcrae was about 66 years old. He had lived at his residence for some 35 years with his wife. Their property was about 4 acres, with a frontage of about 200 feet. They owned and operated their own landscape business from that property. In the course of that work, Mr. Mcrae used a Bobcat. He owned two of them. The Bobcat he drove on the date in question weighed about 7000 pounds, was about 66 inches wide and a little over 6 feet tall.

[50]      He testified in chief that the two ‘street people’ were on his property 30 feet from the path, along with two bikes and a pack. He marked that position on a map. In cross-examination, he stated that the area was about six feet from the path[iii]. He did not explain that contradiction or how he could have been so far off in his estimate of distance on the property he had owned for 35 years.

[51]      Mrs. Mcrae testified that the tree was about five feet from the path because she used their large lawn mower to drive around it. The pictures of the Bobcat on the path entered in evidence by Mr. Mcrae show that the bucket took up all the path, save for about 6 inches, and that the distance between the tree in question and the path was perhaps half the width of the path. Given Mr. Mcrae’s evidence that the bucket was 7 ½ feet wide, the tree was within 4 feet of the path – just enough room for people to sit down, and nowhere near 30 feet onto his property. I conclude Mr. Mcrae said 30 feet when testifying in-chief to make it seem as though Mr. Savinainen and Ms. Myiot were clearly on his property, as opposed to just off the path. There is no other rational explanation, because he could not have been mistaken to that extent. 

[52]      The Mcraes testified that they discussed the people being on their lawn and decided to call bylaw officers, who said they should call the police. They decided not to. Instead, they decided Mr. Mcrae should use a Bobcat to move the people’s effects off the lawn.

[53]      Mr. Mcrae testified he went outside and asked the people to leave, but only once and not in a loud voice. He acknowledged they could have been asleep at the time he approached. He said he got a minimal response, just mumbling, and they slowly started to move, but had not yet stood up and remained on his property. He then turned on a sprinkler to spray them, even though they were getting up by then, and he knew they were just getting oriented. He said he got a little bit more movement from them as a result of soaking them with water. I find he knew they were not fully awake or comprehending the circumstances, for whatever reason. For Ms. Myiot, that is consistent with her heat stroke.

[54]      I pause in summarizing his evidence to say that I have no doubt that Mr. Mcrae would not have done what he did to an elderly or other person suffering from heat stroke. I am sure he would have asked if they needed help, and provided it. He did not do so because of bias, prejudice and assumptions: precisely what Ms. Myiot said she had suffered from her entire life.

[55]      Mr. Mcrae went and got his Bobcat from the back of his property. He put on the largest bucket because he hoped they would get intimidated by its size and the noise of the Bobcat, and move along more quickly. In cross-examination he testified that he formed the intention to use the Bobcat to intimidate them right after he sprayed them with water[iv] and put on the largest bucket to intimidate or scare them[v]. That timing appears to be inconsistent with the Mcraes’ testimony about the plan to use the Bobcat made while they were in their house, although it is possible the initial plan was not about intimidation. He drove down his driveway in full view of Ms. Myiot and Mr. Savinainen, according to his evidence about walking speed, turned and went along the path. Immediately after banging the bucket on the ground to scare them, he turned the Bobcat and scooped up their personal effects, including the pack and their bicycles, with the bucket.

[56]      Mr. Mcrae testified that he knew they were in close proximity to their belongings but could not recall any details, such as whether they were standing or sitting[vi] and admitted that the details were “foggy”[vii]. He also denied that they were close, saying that Ms. Myiot and Mr. Savinainen were to his right, less than 10 feet away from the Bobcat[viii]. That is not “foggy”, and the inconsistency was not explained. In any event, since the bucket was almost eight feet wide, being within 10 feet would have made the Bobcat and bucket “close”, since he could have turned easily. He did not talk to them any more before taking their property and moving it to the grass boulevard in front of his neighbours’ property.

[57]      When testifying, he appeared very indifferent as to whether he damaged their property. He clearly would have damaged it since he said that he pushed their effects along the asphalt path more than lifting them in his bucket. He first admitted there would have been minimal damage, then said there was no damage, although he did not stop and inspect it to determine if that was so. It would be obvious to anyone that pushing metal bikes and cloth packs on asphalt for over 100 feet with a large metal bucket would damage them. I accept he did not see anything break or bend, but I conclude that is only because he did not look with any care or concern. If he was at all concerned with damage, he would not have used his Bobcat, nor would he have pushed the belongings along the asphalt path.

[58]      Mr. Mcrae said he was not aware where Mr. Savinainen or Ms. Myiot were when he was driving the Bobcat with their personal effects and became aware of Mr. Savinainen after he had finished pushing their effects to the boulevard and started to head back towards Kin Beach[ix]. When asked in chief when he last recalled seeing Ms. Myiot, he answered: “There was a police photograph of her on the ground. That’s about the last - - that’s the only time I remember her.”[x] That is evidence he only knew where she was after she was on the ground. He also marked on a drawing where that was, and said it was right next to where the bike and packsack were. That mark looked like it placed her closer to her effects than she was in photographs, and therefore closer to where the Bobcat had driven.

[59]      The photographs show where the Bobcat drove on the grass boulevard. Tire tracks without skidding or tearing up the grass are clearly evident in photographs 7 and 8, with the grass compressed. It is evident that the Mcraes took great pride in the landscaping of their property. The photographs show the care he took with landscaping, and his lawn. He testified he would not want to damage his own grass. That is also supported by his testimony that he went onto the boulevard to do an actual 360 degree skid-steer turn to show what it would do to the grass. He did so without permission from the City of Vernon. He clearly decided it would be better to destroy someone else’s lawn rather than his. I reject his evidence that he drove his Bobcat 30 feet onto his lawn in a wide arcing turn while pushing the victims’ belongings. That would have damaged his lawn, with bikes tumbling or scraping the grass. I have no doubt he would not risk any damage to his property, his lawn, so I find Mr. Mcrae likely scooped their effects as he travelled on the path, where their belongings would likely have been.

[60]      Mr. Mcrae testified he saw Mr. Graw about 50 feet away, but had no interaction with him. Mr. Mcrae went on the path back toward Kin Beach after having moved the personal effects, at which point Mr. Savinainen tried to stop the Bobcat by throwing a sprinkler connection at it. He then tried to hit it with a chain and after used a hand saw or machete. Because the machine was made of metal and the operators’ seat was fully enclosed, there was no damage whatsoever to the Bobcat and no risk to Mr. Mcrae, which he acknowledged. He agreed he had turned around on the path and testified he did so because that is where the male and female were, behind him. When asked why it was important that he turn around, Mr. Mcrae answered it was because the male was behind him and he wanted to see what was going on. He testified he drove within 3 feet of Mr. Savinainen, who was in front and to the right of the Bobcat, in the flower bed adjacent to the path.

[61]      At that point, Mr. Mcrae had accomplished what he set out to accomplish, namely, having the people and their effects moved off of his property. He had already gone past his driveway before he turned around. He testified that he would not do a skid-steer turn (a 360) on pavement, because it was too hard on the tires. The number of skid-marks in the photographs show he was not very concerned about his tires, and in any event some witnesses described the 360 as having been done only partially on the path, at its edge, with it also being on the grass. That matches some of the tire marks in the photographs. The Bobcat and bucket took up the entire path. There is damage to a cedar tree where he turned. There are tire marks where he turned in a small radius. Although perhaps not a skid-steer turn, he must have done a very sharp turn when he turned around to “watch”, otherwise he would have ran over and damaged his lawn – which he would not do.

[62]      He testified about an interaction on the path with another unknown male at that spot before he ran over the personal effects, who Mr. Mcrae said appeared “out of nowhere”. Only in science fiction do people materialize out of thin air. That shows Mr. Mcrae was not aware of his surroundings as he claimed, and supports the fact that he did not know if Ms. Myiot was close to the Bobcat while he operated it.

[63]      The male motioned to him and Mr. Mcrae could tell the person wanted to talk to him. Mr. Mcrae stopped the Bobcat, opened the door and talked to him for some 15 seconds. At that point, Mr. Mcrae said Mr. Savinainen started to approach him from about 20 to 30 feet away. The unknown male’s leg was between the bucket and the wheel of the Bobcat. Mr. Mcrae operated the Bobcat so the bucket moved slightly. In his evidence in chief, he said he “twitched” it and the bucket grazed that person in his leg, who then backed away. After backing up, Mr. Mcrae said they had words and he shut the door shortly after, ending the conversation. He claimed to have no recollection of what that conversation was about. He was clearly unremorseful for hitting the man.

[64]      Mr. Mcrae said he saw Mr. Savinainen chop some flowers in the flower bed on his property. The photographs show about 10 flowers in a small area were damaged, in a large flower bed I estimate as at least 30 feet by 15 feet. 

[65]      In response, Mr. Mcrae testified he drove past and within 3 to 5 feet of Mr. Savinainen, who was in the flower bed, drove past their personal effects, then stopped and did a three point turn on the path, and then drove over their bikes with one pass. He denied he did a 360, and said the tire tracks in the photographs were from making a 3 point turn after he had run over the bikes. He denied he drove over any pack.

[66]      He did not explain why he drove past the bikes, stopped, turned around and drove back over them. If he did that, after driving over the bikes he would have been facing and heading towards Kin Beach. He did not explain why he did not continue in that direction. If he was already heading toward Kin Beach, there would be no reason to turn 180 degrees, face and head towards Vernon where Ms. Myiot was.

[67]      He was very clear that after running over the bikes he was facing Vernon, then backed up the Bobcat just past his driveway and waited while police and ambulances arrived. He said that three times[xi]. That contradicts his testimony that he did a second three point turn after driving over the bikes. If he was facing Vernon and backed up, he did not do a three point turn. If he truly cared about his tires, and he needed to turn around, he could have driven into his gravel driveway, 2 to 3 meters from where he was on the path after running over the bikes. I cannot conceive, on his evidence, how he would drive over the bikes and face Vernon, then do a three point turn to face the opposite direction, yet end up facing Vernon.

[68]      The photographs taken by police do not show any tire tracks on the path where he said he did a three point turn before running over the bikes. He testified it was close to where the people were in photograph 1 of the Crown’s book of photographs. He was unable to see his tracks in that photograph. There are none visible. Other photographs that are more focussed on that area do not have any tire tracks in them. Given all the other tire tracks doing the same supposed three point turn after he ran over the bikes, there would have been tire tracks showing the first three point turn. They would have been visible in at least some of the photographs. Since there were none, I do not accept that aspect of his evidence.

[69]      The photographs also do not show any tracks on the boulevard where he said he drove. Given the other tracks in the grass, there would have been some. The tire tracks that are on the boulevard go directly from the path’s skid marks onto the grass. The grass is torn up. The tire tracks are clearly visible in the grass. They stop part way on the grass, ending in a deeper tire mark which, along with other tire marks, suggest the Bobcat stopped and backed while turning. To Cst. Hamilton, whose evidence was not disputed, the tire tracks looked like they showed a 360-degree turn – exactly what the other witnesses described. The tire tracks clearly show at least one 180-degree turn. The photographs and tire marks are inconsistent with Mr. Mcrae’s testimony.

[70]      Mr. Mcrae’s evidence also fails to explain how many items became scattered. His testimony was he drove once over the bikes. That means the tire tracks would have been over the bikes. His description of his one slow pass with the bucket raised about 1 ½ feet off the ground so it would not catch the bikes would have crushed the wheel, or bent the frame, leaving the bike where it was. Mr. Mcrae’s testimony is inconsistent with the photographs that show a tire track under an undamaged bike wheel, and items scattered and away from the tire tracks. The bikes and personal effects being scattered is consistent with other testimony, including the police officers’ undisputed evidence, and the photographs.

[71]      Mr. Mcrae said that, excepting when he ran over the bikes, the bucket was 6 to 12 inches off the ground. All heights would be about shin height, but Ms. Myiot’s injury was lower down on her shin, consistent with the lower bucket height. If he was facing Vernon after having backed up, he must have turned around again when he drove to the Chevron gas station, at the least because visibility looking backwards was poor at best (at one point he said he could not see out the back). There would be no point in driving backwards while turning around in the seat to look for well over 200 feet. He did not testify to making that turn, despite his evidence having been canvassed in great detail. He parked in the back of the gas station and “waited it out”, which he explained meant waiting for everyone to leave. Everyone would include the police. He clearly wanted to avoid the police. He did not wait in his Bobcat, but was hiding in a back room, not accessed by the general public. He testified he did not return to his house because he did not want to show Mr. Savinainen and Ms. Myiot where he lived. That makes no sense since they clearly saw him coming down the driveway. That they saw where he came from would have been obvious to him in all the circumstances.

[72]      I conclude he fled because he knew what he did was wrong; but since he did more than one legal wrong, I cannot use that evidence of flight as proof that he knew he assaulted Ms. Myiot or operated the Bobcat dangerously.

[73]      I reject and do not believe his exculpatory evidence about his operation of the Bobcat. It is internally inconsistent and externally inconsistent with photographs and other evidence I accept.

[74]      Mr. Mcrae decided to not call police to get help with moving two people he thought were on his lawn. If they were on his lawn, at most they were at its edge next to a public multi-purpose path, as testified to by Mrs. Mcrae. He used the Bobcat and largest bucket to intimidate and scare Mr. Savinainen and Ms. Myiot. He drove toward them and their property, banged the bucket on the ground to intimidate them, then scooped and pushed their belongings over 100 feet on asphalt. He could not see well or at all out of the back of the Bobcat. He then backed up, not knowing where Ms. Myiot or Mr. Savinainen were. He stopped and watched.

[75]      He grazed an unknown male’s leg with the bucket on purpose, causing the man to back up. The fact that his presence surprised Mr. Mcrae should have been a clear indication to Mr. Mcrae that he was not as aware of his surroundings, and people, as he thought. Mr. Savinainen attacked his Bobcat to no effect. Mr. Mcrae did very little. He saw Mr. Savinainen take two swipes at flowers in a flower bed on his property. Mr. Mcrae drove right next to Mr. Savinainen and went to destroy their bikes. He had no idea where Ms. Myiot was.

[76]      He wanted to destroy their property. He drove on a mission to do that, and destroyed their property. He was a highly experienced Bobcat operator who knew people were nearby, did not see them, but continued to operate the Bobcat. He knew of the risks of serious harm when he could not see everyone, moved his bucket up and down, and drove around while turning the Bobcat sharply. He denied he ever aimed for Mr. Savinainen or Ms. Myiot and denied hitting them.

[77]      His testimony with respect to turning and driving the Bobcat over the bikes was internally and externally inconsistent.

[78]      Mr. Mcrae testified that foot and bicycle traffic on the path had increased significantly since he first bought the property. He admitted that the Bobcat could cause serious injury or death. He admitted he could have called the police at any time without any problem, as could his wife, but that neither did.

[79]      Although trite law, it is worth stating that Mr. Mcrae does not have to prove anything. He is presumed innocent. The Crown must prove all the essential elements of each offence beyond a reasonable doubt. I must apply the principles as articulated in R. v. W.(D.)[xii], but with the following caution. It is often stated that if I believe an accused I must acquit them; but if the defence evidence establishes aspects of the essential elements of an offence, I am not obliged to acquit. Indeed, even if there is no defence evidence, W.(D.) principles apply to exculpatory evidence called in the Crown’s case[xiii].

[80]      The issues are whether the Bobcat was a weapon, whether it hit Ms. Myiot, and whether Mr. Mcrae intended to or was reckless if he hit Ms. Myiot.

[81]      The relevant Criminal Code provisions are:

[82]      The minimum intent required under s. 265 is recklessness. Recklessness involves knowledge of a risk and persisting in conduct which creates a risk that the prohibited result will occur[xv]. Culpability is justified by consciousness of the risk and the decision to take it. In wilful blindness, culpability is justified by the accused’s deliberate choice to not ask despite knowing there is good reason to inquire. Wilful blindness is irrelevant in this case, since that concept relates to the issue of whether Ms. Myiot consented to contact, which is not in issue.

[83]      Mr. Mcrae testified he put on the largest bucket to intimidate and scare Mr. Savinainen and Ms. Myiot. Mr. Mcrae banged the bucket on the pavement and drove toward them and their belongings to intimidate them, scraping it on the ground as he drove. The Bobcat and attached bucket were therefore a weapon and Mr. Mcrae was using it.

[84]      If Mr. Savinainen and Ms. Myiot were on the Mcraes lawn, they were within 4 to 5 feet of the path, and therefore within 4 to 5 feet of the Bobcat when it was on the path, because it occupied virtually all of the path as he approached. If they and their effects were on the path, they were directly in harms way. Even if they and their belongings were just on the Mcraes’ property, they would also have been in harms way, because that is where Mr. Mcrae had to go, and said he went, to get their belongings. The desire to fill them with fear and coerce them to leave by scaring them was accomplished by driving towards them with Mr. Mcrae’s choice of weapon, the Bobcat and its 7 1/2 foot wide steel bucket.

[85]      In the circumstances, on his evidence alone, he threatened by an act and gesture to apply force to them both with a weapon, and intended to do so. I am satisfied beyond a reasonable doubt if they did not move, they would have been hit. But if I am wrong in that conclusion, they were both afraid of getting hurt by the Bobcat. They moved to avoid that result. The Bobcat was within a few feet of them and could easily have struck them. They reasonably feared Mr. Mcrae would hit them.

[86]      As submitted by the Crown, the facts are similar to those in R. v. Dawydiuk[xvi]. Mr. Mcrae drove in anger toward people. He banged his bucket on the ground to intimidate them to move and drove forward. He made them move to avoid being hit. That was his purpose and point. Since he was willing to hit the unknown male for doing nothing except talking on a public path, I have no doubt he would have hit Mr. Savinainen and Ms. Myiot, who he believed were violating the sanctity of his lawn, if they did not move.

[87]      Mr. Mcrae is guilty of assaulting Ms. Myiot with a weapon on his evidence alone. That conclusion is supported by other evidence I have accepted.

[88]      There is a further basis for conviction on Count 1, in that an assault need not be viewed as a discrete act, but can include a series of acts or course of conduct, even if separated by actions that do not by themselves constitute an assault[xvii]. On the evidence I have accepted, Mr. Mcrae used the Bobcat fairly continuously to threaten the victims and destroy their belongings, all while they were very close to their belongings. In addition, or in the alternative, Mr. Mcrae recklessly hit Ms. Myiot with the Bobcat’s bucket.

[89]      Mr. Mcrae drove away from where he had pushed their effects. He did not know where the two people were. I found they were within a few feet of the Bobcat as would be expected, trying to stop him from destroying all their worldly possessions by waving and yelling. Mr. Savinainen was angry at Mr. Mcrae for destroying their possessions. He attacked the Bobcat. Mr. Mcrae knew he and the Bobcat were not in danger of being harmed. He did not try to diffuse the situation. Instead, he stopped and turned around to watch. An unknown male appeared out of nowhere. He flagged Mr. Mcrae down and Mr. Mcrae decided to use the Bobcat to assault the male.

[90]      Mr. Mcrae saw Mr. Savinainen cut a few flowers. Not to excuse his actions, but Mr. Savinainen’s reaction to Mr. Mcrae and his cruelty are understandable. The flowers would grow back, and not all of them were damaged. From the pictures, it looked like the area could have been fixed with little effort so the cut flowers would not be apparent.

[91]      Enraged, Mr. Mcrae drove back to their effects, intent on destroying their bikes. He knew Mr. Savinainen was in the flower bed about three feet away from his Bobcat, obviously angry such that Mr. Savinainen’s actions could not be predicted. He had just seen Mr. Savinainen throw things at the Bobcat, try to hit it with a chain and chase after it with a small hand saw. As Mr. Mcrae told Mr. Vo, Mr. Savinainen “fought a Bobcat and lost.” I find Mr. Mcrae knew Mr. Savinainen would likely approach the Bobcat again as he operated it to destroy their effects. I find he was not intent on just destroying their bikes, but all of their effects. He could not destroy one without affecting the other, because on his evidence they were all in the one spot where he had moved them.

[92]      Mr. Mcrae did not know where Ms. Myiot was. He spun the Bobcat more than once to destroy their effects. Ms. Myiot was trying to get his attention, but he was oblivious to that, just as he was with the unknown male. I accept Mr. Graw’s testimony that she was to the side of the Bobcat. Mr. Mcrae was busy spinning on their effects. His focus was on destruction of property (including the City of Vernon’s boulevard), not people. I reject his assertion he was aware of all his surroundings. If he was, he would have known Ms. Myiot was there. He knew that a Bobcat could seriously harm or kill people who were near it when being operated. He knew there was a risk Ms. Myiot and Mr. Savinainen would be near their effects. He did not care, and took a risk. In the course of destroying their property, he hit Ms. Myiot with the Bobcat. As a result, she was injured and fell to the ground. The Bobcat was a weapon, and Mr. Mcrae assaulted her with it.

[93]      The essential facts of this part of the assault are similar enough to those in R. v. Sagmoen[xviii], as submitted by the Crown. Mr. Mcrae was angry and drove at the couple knowing they were next to their effects. He knew Ms. Myiot was in that immediate vicinity, but did not know exactly where she was, and drove while very angry to destroy their effects. He knew there was a risk he might hit someone, because he knew Mr. Savinainen and the unknown male had tried to stop him, which would be expected. He knew people could approach fairly closely without him noticing because that is what happened with the male and Mr. Savinainen. He took a risk he might hit someone who would be nearby trying to stop him. He assaulted Ms. Myiot with a weapon.

[94]      Dangerous operation of a conveyance requires that I be satisfied beyond a reasonable doubt that the operation, viewed objectively and having regard to all the circumstances, was dangerous to the public:

[95]      There was no issue that the Bobcat was a conveyance. Although most cases involve driving, “operation” is not limited to driving. Operate is defined in s. 320.11:

[96]      In the circumstances of this case, that care or control includes operation of the Bobcat’s attachment, the bucket, and it is part of the motor vehicle.

[97]      The legal test for the act in this case is whether, viewed objectively, Mr. Mcrae operated the Bobcat in a manner that was dangerous to other people who were in the vicinity, having regard to all the circumstances. The legal test for the mental element is whether Mr. Mcrae’s state of mind showed a marked departure from the standard of care that a reasonable person would have in those circumstances[xix].

[98]      The path was not a street, and he knew pedestrian and bicycle traffic had increased over the previous few years. His operation of the Bobcat on a path, meant only for non-motorized traffic like bicycles and pedestrians, and on grass while close to others, was objectively dangerous. Mr. Mcrae’s stated purpose for using his Bobcat was to have the two people move on by scaring them, and removing their effects from his property. Ironically, Mr. Mcrae created a situation where anyone on the path or near it had to go onto his property, or remain on it, to avoid injury. The Bobcat’s bucket was so wide there was no room for anyone to go by it and stay on the path. Access to the boulevard opposite his property was blocked by a row of cedar trees. The only real options for someone on the path, as he came toward them, would be to turn and move away, or be on his property. Both would be a result of his interfering with their lawful use of the public path by using a motorized vehicle capable of causing death or bodily harm.

[99]      His manner of operating it put people at risk. The fact the risk eventuated, that is, that Mr. Mcrae assaulted Ms. Myiot, Mr. Savinainen and the unknown male with his Bobcat, is proof of that danger. The findings regarding his spinning the Bobcat to turn in close proximity to people and to drive straight at people is further proof, given the obvious danger of a large, heavy metal object connecting with a human. This also may be a situation, as noted in R. v. Anderson[xx], where the manner of operation and the consequences are interwoven.

[100]   The Crown does not have to prove that he intended or was reckless as to operating the Bobcat dangerously, but that does not mean that Mr. Mcrae’s state of mind is irrelevant. In R. v. Beatty, the Supreme Court of Canada said:

[101]   Section 249 was the equivalent of the current offence of dangerous operation of a conveyance.

[102]   After he soaked them, Mr. Mcrae delayed their departure, the opposite of what he wanted. Obviously, being soaked could delay their departure. He knew they were getting up and moving before he went to get his Bobcat. He was in part responsible for Mr. Savinainen and Ms. Myiot still being on his property, if they were, by the time he arrived with his Bobcat.

[103]   Mr. Mcrae purposely drove on the path toward Mr. Savinainen and Ms. Myiot. He banged his bucket and pushed their effects when they were standing close to them. He did so for the purpose of scaring them. He did scare them and forced them to move. They could not move directly off his property. Mr. Mcrae intentionally created a danger for other legitimate users of the path. That is a marked departure from the standard of a reasonably prudent Bobcat operator.

[104]   If he had a lawful basis for moving their effects, it was only off his property, if in fact they were on his lawn. Pushing them down the path deprived the owners of their items, so he knowingly interfered with their lawful use and enjoyment of their effects. He committed the offence of theft. He also damaged them, so he committed the offence of mischief in two ways, intentionally interfering with their property and intentionally damaging it. The relevance of those offences at this point is not to convict him for something he was not charged with; it is that in committing those offences he intentionally created a danger to Mr. Savinainen and Ms. Myiot. That was a marked departure from the standard of a reasonably prudent Bobcat operator.

[105]   Further, he purposely “twitched’ the bucket and grazed the unknown male, which must have been to scare him and make him move away. That is what the male did. That too was intentionally creating a danger for others and a marked departure from the standard of a reasonably prudent Bobcat operator.

[106]   In short, Mr. Mcrae operated the Bobcat intending to endanger those near him. The mens rea would be made out on that basis. It was a marked departure from the norm of a reasonable prudent Bobcat operator, as Mr. Graw perceived.

[107]   Evidence about Mr. Mcrae’s actual intention is also relevant to my objective assessment of whether or not his conduct constituted a marked departure from the norm. The Court in Beatty directed how I am to pursue my analysis:

[108]   To some extent, I have already analyzed Mr. Mcrae’s state of mind. I also conclude that Mr. Mcrae’s testimony that he did not intend to hit anyone and was aware of his surroundings does not affect my assessment. First, he intended to hit the unknown male without his consent. No one would consent to being “grazed” by a Bobcat operated in the way Mr. Mcrae did that day, unless they wanted to be injured or killed. Since the man moved away after being hit, he wanted neither.

[109]   Second, Mr. Mcrae admitted that using the Bobcat to push people’s belongings down a path was not a normal use of it. Third, he acknowledged that the Bobcat could be dangerous; and finally he had a great deal of experience driving that Bobcat. His belief in his skills does not mean it was not objectively a marked departure from what a reasonable, prudent operator would have done in those circumstances.

[110]   Those circumstances include having lost sight of Ms. Myiot, with no awareness of where she was; knowing he did not see the unknown male approach; knowing he was destroying their personal effects; and knowing that Mr. Savinainen had tried to stop him for doing less damage by chasing after and attacking the Bobcat at close range. As I concluded, anyone would expect the same actions by someone whose effects were wrongfully moved and damaged. And anyone would know that spinning around without knowing where others were, and knowing they could not see well out the back or sides, would create a danger to others in the vicinity.

[111]   To operate it the way Mr. Mcrae did was far from normal or in a reasonable and prudent manner. I cannot imagine him doing it on a worksite where Bobcats are meant to be used, let alone a public pathway and boulevard. It was not close to being a marked departure from the norm. It was on the far end of the spectrum of dangerous operation of a Bobcat.