COURT OF APPEAL FOR ONTARIO

CITATION: R. v. McIlmoyle, 2015 ONCA 505

DATE: 20150706

DOCKET: C58517

Watt, Brown and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey McIlmoyle

Appellant

Mark Halfyard and Breana Vandebeek, for the appellant

Eric Siebenmorgen, for the respondent

Heard and released orally: July 2, 2015

On appeal from the convictions entered on May 24, 2013 and the sentence imposed on November 7, 2013 by Justice Gregory M. Mulligan of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] After a judge alone trial in the Superior Court of Justice, Jeffrey McIlmoyle was convicted of sexual exploitation and mischief. He was sentenced to a term of imprisonment of 17 months, to be followed by a period of probation of two years. He appeals his conviction of mischief and seeks leave to appeal the carceral portion of the sentence imposed upon him.

[2] On the appeal from the conviction of mischief, the appellant contends that the conviction is unreasonable.

[3] The circumstances of the offence are somewhat unusual.

[4] The appellant and his common-law wife went to a party. The appellant had too much to drink. He and his wife argued. The appellant decided to leave the party and walk home. It was January and cold. The walk home involved a distance that would take about ten minutes to drive.

[5] The appellant’s common-law wife called her daughter at home and persuaded her to drive down the street, pick up the appellant and drive him home. Despite other plans and a somewhat toxic relationship with the appellant, the daughter, Kali, agreed to do so.

[6] When Kali located the appellant, walking alone on the side of the road, she stopped her car and asked him to get inside. He refused. She explained that her mother had told her to pick him up. The appellant got into the car and Kali began the drive home. In the car, Kali and the appellant argued. He told her to stop the car. He wanted to get out. She refused to do so, rather, continued the drive, avoiding traffic lights and signed stops.

[7] About a minute away from home, the appellant reached over to the driver’s side of the vehicle and pulled up on the parking brake. The car spun out and came to rest at the side of the road. The appellant got out, pushed the car back onto the travelled portion of the road and continued his walk home. Neither Kali nor the appellant were injured. The car was not damaged.

[8] The appellant says that the conviction of mischief is unreasonable because Kali was not in lawful use of her property – the motor vehicle – when the alleged offence occurred. She was not operating the vehicle lawfully because she was unlawfully confining the appellant in her car, refusing to accede to his requests to leave the vehicle.

[9] We would not give effect to this ground of appeal. In our view, there was an adequate evidentiary basis upon which the trial judge could find that Kali was lawfully operating her motor vehicle at the time the appellant interfered with her operation of it by pulling the parking brake.

[10] The appellant voluntarily entered the vehicle, well aware of Kali’s intention to drive him home. Following her mother’s instructions, her purpose never changed. It is worth reminding that the offence of unlawful confinement, said to be the vitiating element here, requires that the confinement be for a significant period of time: see, R. v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.).

[11] It was open to the trial judge to conclude that Crown counsel had negated this offence, and thus established lawful operation, on the facts of this case. It is also arguable, though it was not advanced at trial, that Kali was under a legal duty to continue her journey home because of the provisions of s. 217 of the Criminal Code and thus was not acting unlawfully in doing so.

[12] In the result, the appeal from conviction on the charge of mischief is dismissed.

[13] As to sentence, it is contended that the sentence on the mischief conviction, while properly consecutive to the sentence for sexual exploitation, reflects error. It should not have been a custodial term and was imposed by the sentencing judge without any analysis.

[14] We agree that the usual deference due to a sentencing judge’s determination is not owed to the sentence on the mischief conviction. That said, we are of the view that the cumulative sentence imposed reflects no error in principle and falls within the range of sentence appropriate for these offences and offender.

[15] The sexual exploitation offence involved progressively more invasive behaviour towards a vulnerable complainant and has had a profound effect upon her. This offence involved a breach of trust and an abuse of authority. The reference to lack of insight was not misplaced or accorded undue weight in the determination of sentence. The trial judge’s reference to the commission of the offence when others were knowingly absent for extended periods was appropriate in this case because the appellant took advantage of periods of increased vulnerability on the part of the complainant.

[16] In the result, although we would admit the fresh evidence and grant leave to appeal sentence, we would dismiss the appeal from sentence.

“David Watt J.A.”

“David Brown J.A.”

“L.B. Roberts J.A.”