



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 appellants 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
    drivers 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 Kalis intention to
    drive him home. Following her mothers 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 judges 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 judges 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.


