Ontario Court of Justice

Date: September 9, 2019

Court File No.: HAMILTON 18-3864 & 18-3871

Between:

HER MAJESTY THE QUEEN

— AND —

JOSEPH RIBBLE

Before: Justice P.H.M. Agro

Heard on: May 27th, May 29th, July 26th, August 8th, August 19th & September 9th, 2019

Reasons for Judgment released on: September 9th, 2019

Counsel

Mr. S. Kim — counsel for the Crown

Mr. J. Razaqpur — Public Prosecution Service of Canada

Ms. J. Stephenson — counsel for the accused Joseph Ribble

Reasons for Sentence

Convictions

1Joseph Ribble was found guilty of seven counts of possession for the purpose of trafficking in fentanyl, heroin and fentanyl, cocaine, methamphetamine, gamma hydroxybutyrate (GHB), hydromorphone, cannabis marijuana, respectively, one count of possession of the proceeds of crime, under $5000, one count of careless storage of a firearm, one count of possession of a loaded prohibited or restricted weapon, 4 counts of breach of firearms prohibition orders.

2Although convicted of two other firearms counts contrary to sections 91(1) and 92(1), those counts were stayed by the provincial Crown on the basis of R v Kienapple, [1975] 1 S.C.R. 729.

3Ribble was jointly charged with Tara Brennan, who has yet to be sentenced.

Background

4At the opening of trial, the defence raised a section 8 Charter challenge to the validity of a search warrant obtained by Hamilton Police Services for the residence at 83 Hildegarde Drive.

5The fruits of that warrant, as it related to Ribble, included a Bersa semi-automatic handgun, 12 Winchester .380 automatic bullets, 3 bundles of cash totalling $1520, 0.82 grams of cocaine, 16.35 grams of methamphetamine, 1520 millilitres of GHB, 5.26 grams of cannabis marijuana, 58 hydromorphone pills, a mixture of heroin, fentanyl and caffeine in the amount of 15.91 grams and 11.02 grams of fentanyl and caffeine. There is no evidence of the potency of the latter two mixtures.

6Counsel were in agreement that my determination of the validity of the warrant would be dispositive of trial issues.

7In my reasons for ruling, delivered 26 July 2019, I upheld the warrant and ultimately findings of guilt were entered for Ribble and Brennan.

8Police information was that Brennan and Ribble trafficked in drugs from the business known as Image Salon, located in a leased premise on Barton Street in this city. Brennan was the operator of the salon and was known to police to traffick in methamphetamine from that location. Ribble stored drugs at that site and ran a trafficking operation in multiple illicit drugs from the salon using his motor vehicle as a mobile dispensary. Police information was that they also dispatched "runners" from the salon.

9When the landlord evicted the parties from the Image Salon due to evidence of drug use in the premises, the parties moved the contents of the Salon and according to the Crown theory, brought their drugs to the 83 Hildegarde residence.

10Upon execution of the warrant, that theory was proven.

Evidence at the Sentencing Hearing

A. Testimony of Tracey Ribble

11Joseph Ribble's mother, Tracey Ribble, testified at the sentencing hearing.

12She outlined an all too familiar narrative of her personal history and her son's childhood and development as an adult.

13Tracey Ribble is herself a recovering addict, and to her credit, now enjoying 11 consecutive years of sobriety and employment as a cashier at a local grocery store.

14Both of her parents were addicts. She began using marijuana and LSD at age 13. Their household was chaotic and violent. She ran from home and became involved in the youth criminal justice system, her criminal activity supporting her addiction.

15She bore her first child at age 16 and her son Joseph was born when she was 21. The relationships with the fathers of those children were abusive ones.

16As an adult Ms Ribble's criminal activity advanced from shoplifting to bank robbery. For that offence she served penitentiary time at age 23. By then she was a regular crack user. Her children were separated with Joseph sent to his paternal grandparents. He was never again placed in her care although after her release on parole she did see him on weekends.

17Ms Ribble testified that she has known Joseph to be a drug user since he was age 16 when he started with marijuana and cocaine. He progressed to crystal methamphetamine then to heroin and fentanyl. On occasion she would use drugs with her son.

18She is aware of his criminal history as youth and a young adult.

19Until 2016 Ribble was able to maintain full time employment in the cement foundation trade, but took a sick leave as a result of his drug abuse. Before then he was in a stable relationship with two children.

20As a result of his drug use and numerous overdoses, he lost his job and left his family. Shortly thereafter he met his co-offender, Tara Brennan and set up the Image Salon.

21Ms Ribble, aware of her son's drug use and trafficking, had been at the Hildegarde residence a few times. She has tried to encourage his sobriety and actively assisted with finding a treatment centre for him.

22Ribble was released on bail in November of 2018 so that he might attend a residential treatment centre in Sault Ste. Marie. On the eleventh day after his release, he overdosed on fentanyl, was again arrested and has remained in custody since.

B. Ribble's Criminal Record

23Ribble was 29 years of age when he committed these offences. He is 30 years of age today.

24The offender's criminal history began as a youth in 2007, six days short of his 18th birthday. He was found guilty of possession of a prohibited or restricted firearm with ammunition, possession of a schedule I substance for the purpose of trafficking and trafficking in a schedule I substance. After spending 103 days of pre-sentence custody he was sentenced to 80 days in custody followed by 40 days of community supervision.

25There were unrelated convictions as an adult (assault and breach of recognizance x 3) in 2009 and 2017 respectively.

26In 2017 Ribble was again convicted of a drug offence: simple possession of a scheduled substance for which he received a 1 day sentence concurrent to the breaches of recognizance.

27In that same year he was convicted of possession of oxycodone for the purpose of trafficking for which he received a sentence of 1 day after 287 days of pre-sentence custody. He served a sentence of 30 days concurrently on 2 counts of simple possession of a scheduled substance imposed at the same time.

28There was 1 further breach of recognizance conviction in 2017 for which Ribble received a sentence of 1 day after 87 days of pre-sentence custody.

29The convictions of 2017 would seem to coincide with the loss of his job and break up of his marriage as described by his mother Tracey Ribble.

30In 2019, Ribble was convicted of 2 counts of breach of recognizance and received concurrent sentence of 80 days' time served. This is the breach that occurred when he was on release for these charges for the purpose of attending residential treatment.

Positions of the Parties

A. Public Prosecution Service of Canada and Provincial Crown

31The federal Crown seeks a penitentiary sentence of 7 to 8 years for the heroin and fentanyl and fentanyl convictions with concurrent 4 year sentences for the remaining drug charges with the exception of the marijuana charge, for which the PPSC is seeking a 4 month concurrent sentence and 1 year concurrent on the proceeds conviction.

32The provincial Crown seeks the maximum 2 years for the careless storage of a firearm and 5 years for the possession of it, concurrent to each other but consecutive to the sentences on the federal convictions. He also seeks a further 1 year consecutive on the 4 convictions for breach of prohibition orders for a total of six years on the Criminal Code matters.

33Both Crowns seek ancillary orders for DNA and weapons prohibitions pursuant to section 109 as well as an order under section 743.21 that Ribble have no contact with his co-offender Tara Brennan while serving his sentence.

34A forfeiture order for the Bersa firearm, ammunition and proceeds was earlier made.

B. Counsel for Ribble

35The defence submits that a global sentence of 6 years is appropriate, apportioned as 5 years on all drug convictions and a concurrent sentence of 5 years on the firearms offences with a consecutive 1 year sentence on the prohibition order breaches.

36She takes no issue on the ancillary orders sought.

Issues Raised by Sentencing Positions and Applicable Authorities

37Counsel are ad idem that a penitentiary sentence is warranted and that the principles of denunciation and deterrence loom large. In oral submissions though they raised a number of issues that bear upon my determination of the length of that sentence in view of the principles and purposes of sentencing.

38One matter for consideration is whether there is a distinction between a trafficker for profit and a trafficker who supports his addiction by that activity.

39In examining this issue I have reviewed the authorities R v Boardman, [2016] O.J. No. 4379 (ONCJ), and R v Cinelli, 2018 ONSC 4983 (Ont. S.C.J.), and R v Clark and Shevalier, (Unreported) ONCJ March 16, 2017, R v Moore, [2017] O.J. No. 6122.

40I accept the testimony of Tracey Ribble that her son is a long term addict and I have some empathy for the circumstances that has plagued their family for three generations.

41However, other evidence before me on the Charter application, and Ribble's criminal record, support my finding he has been a long term dealer in multiple drugs as well. His first offences for trafficking and possession for the purpose of trafficking in drugs were in 2007 as a youth. By age 29, he was described by police as a mid level dealer.

42While his personal background may explain his introduction to and initial drug use, his continued use of illicit substances was a lifestyle choice on his part. His addiction is not a lawful excuse for immersing himself in the drug subculture and becoming a not so minor part of the supply and demand continuum.

43In spite of the example and support of his mother, he made no serious effort to deal with his substance abuse, even while released from detention on these charges for that purpose.

44While there is no evidence before me that Ribble led a lavish lifestyle a result of his trafficking, there was a significant amount of cash recovered during the execution of the search warrant.

45Nor was there any evidence of a causal connection between Ribble's addiction and his trafficking. He is not the typical street sale addict trafficker who sells a product for a higher level dealer so that he might chip off a piece for his own consumption. Ribble maintained a pharmacy of illicit drugs ranging from highly addictive opioids to marijuana and GHB.

46I find there was an element of greed to Ribble's trafficking in drugs and ascribe only minimal weight to the mitigating circumstance of his addiction.

47Another issue raised in submissions by the PPSC is the serious nature of the drugs, particularly heroin and fentanyl, and by the defence, the lack of quantitative analysis of that fentanyl.

48In addition to the authorities earlier mentioned, I have reviewed these authorities on this issue: R v Loor, 2017 ONCA 696 , [2017] O.J. No. 4628 (Ont. C. A.), R v Vezina, 2017 ONCJ 775 , [2017] O.J. No. 6027 (ONCJ), and R v T.G., [2019] O.J. No. 2684 (Ont. S.C.J.), R v Medeiros-Sousa, 2014 ONCJ 626, R v Klammer, 2016 ONSC 4038, and R v Lloyd, 2019 BCCA 128 , [2019] B.C.J. No.631 (BCCA).

49As noted by Nelson, J. in the 2014 decision of Medeiros-Sousa, the Ontario Court of Appeal mandated that barring exceptional circumstances, trafficking in heroin, even for a first offender will result in a penitentiary sentence. It was also noted in that judgement that fentanyl is 10 to 20 times stronger than heroin and misuse of even one patch of fentanyl can cause death. And similarly, that one tablet of hydromorphone, a synthetic drug similar to heroin with similar potency, can be fatal when taken by a person with no tolerance to the drug.

50Of all opioid related sentencing, heroin trafficking has traditionally attracted the highest sentence of drug related offences. More recently, fentanyl is beginning to overtake heroin in that category.

51The dangers of fentanyl patches were described at trial and referred to in the appeal decision by Laskin, J.A., in Loor, at paragraph 39:

When abused, fentanyl patches are especially dangerous. People can abuse a patch in many different ways. They can inject the patch contents intravenously, cut up the contents and chew small portions at a time, inhale it, smoke it, and even make tea with it. What makes the patch particularly dangerous is the medication's location within the patch. The medication is in a matrix, essentially buried inside the patch. To get the medication out of the patch, a person has to chop it up or melt it down or heat it up. But then the person does not know how much fentanyl has been released. Its potency for an individual is thus often unpredictable. And so, Dr. Woodall concludes, a lot of deaths have been associated with the abuse of fentanyl patches.

52More recently, fentanyl powder has flooded the illicit drug market and the number of fentanyl powder cases is rapidly increasing across the province and notably in this jurisdiction.

53In Hamilton, I see fentanyl abuse regularly identified as underlying many of the offences committed in this jurisdiction; possession of fentanyl charges have increased in plea court and fentanyl users are the new norm in drug treatment court. Sadly, our detention centre is notorious for drug overdoses, including fentanyl.

54These are matters that I can properly take into account in fashioning an appropriate sentence: R v LaCasse, [2015] SCC 64.

55In his 2017 sentencing reasons in Clark and Shevalier, at page 5, Epstein J., noted the wide spread reporting throughout Canada of the dangers of powdered fentanyl and the "astounding" number of deaths that have resulted.

56Likewise, in Cinelli, Bawden, J. said at para 18:

Although there are significant dangers to the rapid consumption of fentanyl patches, those dangers pale in comparison to the dangers of consuming fentanyl powder. Fentanyl powder is typically synthesized in China. The drug can be snorted, injected, smoked or even absorbed through the skin. Fentanyl powder represents an extraordinary risk to first responders who must constantly guard against the possibility of toxic exposure to fentanyl.

57That theme was repeated in each of the fentanyl powder cases provided by counsel or referred to in these reasons.

58In the case at bar the fentanyl is not in patch form. It is in powder form and has been mixed either with caffeine (in the case of 11.02 grams) or with heroin and caffeine (in the case of 15.91 grams).

59The defence has argued that because the fentanyl is not pure and there is no quantitative analysis of the amounts of fentanyl and heroin in each of the drug exhibits seized, that the sentence imposed should therefore be at a lower range.

60I disagree. Fentanyl and heroin are both pernicious substances, combining and distributing them, in any amount, exacerbates the risk to users who have may have no idea what it is they are consuming and in what concentration. Similarly, there is a heightened risk to first responders who are required to handle the substances and the tools used by addicts for their consumption.

61While I was not presented with any binding authority on the issue quantitative analysis, the British Columbia Court of Appeal dealt with fentanyl and heroin mixtures in the Lloyd decision, and noted that the dangers of fentanyl laced in illicit substances are at the forefront of public attention across the country.

62The court went on to uphold the sentence of 6 years for the possession of fentanyl and heroin for the purpose of trafficking. Stromberg-Stein, J.A. said at paragraph 29:

In my opinion, the judge correctly identified, as an aggravating factor in sentencing, that the presence of fentanyl in the heroin impacted the seriousness of the nature and quality of the drugs involved in the offences.

63and at paragraph 34:

In my view, the judge correctly concluded that heroin laced with fentanyl is an aggravating factor in sentencing whether or not there is a quantitative analysis of the fentanyl.

64I am persuaded by this authority from an appellate court in a jurisdiction which has been at the forefront of drug related deaths and offences.

65Unfortunately I have no direct evidence of the number of "hits" that might be sold from the items containing fentanyl nor the street value of those amounts, information that may be useful in arriving at an appropriate sentence for those drugs. I can only seek guidance from the authorities on the length of sentences relative to the quantity seized.

66Similarly there is no such evidence regarding the remainder of the drugs in Ribble's possession.

67As for the fentanyl mixtures, the amounts in this case are higher than powdered fentanyl amounts in the cases provided by counsel and referred to in these reasons.

68I approach some of the authorities presented by the defence on this issue with some caution as many of those cases dealt with fentanyl patches, a legally prescribed drug put to illegal distribution. Other authorities bore other distinguishable features not relevant to the case at bar.

69The remaining issue raised during submissions is whether the firearms offences, specifically the sentences for careless storage and possession, should be imposed consecutively or concurrently.

70There is agreement that any sentence for the breaches of prohibition orders be served consecutively to any other sentences imposed.

71In addition to authorities already referred to, the decisions of, R v Noorali, 2010 ONSC 3747, R v Wong, 2012 ONCA 767, R v Paterson, 2013 BCSC 880, R v Borecky, 2013 BCCA 163, R v Crevier, 2015 ONCA 619 , [2015] O.J. No. 5109, R v Chartrand, [2018] M.J. No. 355, and R v Muhammad, 2019 ONCJ 375, were most helpful.

72Subject to any relevant considerations mandated in Part XXIII of the Code and any jurisprudence on the matter, sentencing judges are not required to impose consecutive sentences and often, the principle of totality may persuade against a consecutive sentence.

73Most certainly sentencing judges are mindful of the dangerous combination of drugs and firearms and the deleterious effects that combination has on the functioning of Canadian society.

74In Wong, the offender was sentenced on 10 drug and weapons offences. In upholding the penitentiary sentence imposed, the court stated at paras 11 to 12:

[11] The courts have repeatedly emphasized that the toxic combination of drugs and guns poses a pernicious and persisting threat to public safety and the welfare of the community. The social ills, including associated criminal conduct, fueled by this combination is now well recognized.

[12] These offences call out for an exemplary sentence to achieve the important sentencing goals of denunciation and deterrence. Indeed, the firearms offences, standing alone, warranted a significant jail term. See R. v. Danvers, [2005] O.J. No. 3532

75In the case at bar, Ribble had no lawful purpose in the possession of a loaded semi automatic handgun. Indeed he was prohibited from such possession by two separate orders. I can only conclude that his possession of the firearm was part of the "tools" of his drug activity, the weapon of choice to prevent being robbed for his drugs or cash and for the enforcement of debt obligations.

76This finding is supported by the testimony of his mother who testified that drug dealers will arm themselves for protection.

77Furthermore, that the firearm was both "carelessly stored" and loaded, supports my finding that it was ready for immediate use with potentially lethal consequences.

78Possession of illicit drugs for the purpose of trafficking addresses the protection of society from the misery, health costs and increased criminal activity, including violent activity, due to addiction. The illegal possession of a loaded firearm, along with illicit drugs, carries a more immediate and actual capacity for violence. See R v Crevier, 2015 ONCA 619 , [2015] O.J. 5109, and R v Chartrand, [2018] M.J. 355.

79Although Ribble was found to be in possession of the drugs and firearm at the same time and place (the essence of those offences being possession), I conclude that the drug and firearms offences could carry consecutive sentences as they are different legally protected societal interests.

Aggravating and Mitigating Circumstances

80I find the aggravating circumstances to be these:

• Although not extensive, Ribble has a record for similar drug and firearms offences, commencing as a youth
• Heroin and powdered fentanyl are particularly potent and potentially lethal substances to users and first responders, particularly when in powdered form
• The combination of heroin and fentanyl, or fentanyl with any other substance is particularly aggravating
• The variety and quantities of drugs seized were significant
• As a third generation drug abuser, the dangers and effects of illicit drug use were well known to Ribble, yet he pursued the lifestyle of a mid level dealer for profit, contributing to the misery of countless members of this community
• The combination of illicit drugs with a semi automatic firearm is a lethal one on multiple levels
• There was extra ammunition, unsecured, in the residence

There are some, but few mitigating circumstances:

• Ribble is a skilled tradesman, capable of maintaining full time employment when he is drug free
• He has support from his mother who is a role model for recovery
• There is a 10 year gap in his record from the time of his drug and firearms offences as a youth to the date of his next drug conviction as an adult
• Ribble is himself an addict

Conclusion

81An appropriate sentence must reflect the circumstances of these offences and those of the offender, send a clear communication of denunciation and deterrence to Ribble and other like minded individuals, and protect society from drug dealers and their toxic wares.

82Traffickers who combine that activity with firearms must especially get an unequivocal message of denunciation from the court.

83The position taken by the defence for a six year sentence minimizes the serious nature of these charges and the aggravating circumstances, putting too much emphasis on the mitigating circumstances.

84Reflecting on the purposes and principles of sentencing, and the presenting aggravating circumstances, the sentences sought by the PPSC are not excessive that is: an aggregate of 7 to 8 years. Nor is the position taken by the provincial Crown for an aggregate sentence of 5 years with a 1 year consecutive sentence for the weapon prohibition breaches.

85Imposed consecutively, the aggregate sentence would be 13 to 14 years.

86Ribble has never served a penitentiary sentence nor has he ever before served a reformatory sentence. His adult sentences have been comprised of time served dispositions followed by brief custodial terms never exceeding 30 days. He has never been subject to a probation order.

87As recognized by all three counsel, those sentences, imposed consecutively, may not appropriately reflect the principle of totality. Nor would it in my view reflect the mitigating circumstances that suggest that Ribble does have some prospect of rehabilitation.

88Mindful of the aggravating and mitigating circumstances, the fact that Ribble has never served a lengthy term of imprisonment, and recognizing that these offences are linked for the purpose of the single endeavour of drug dealing, I prefer to apply the principle of proportionality to a concurrent sentence over the principle of totality for consecutive sentences.

89In that way the deterrent and denunciatory effects of a fit sentence are not artificially diluted by the imposition of lower sentences on one or more counts in obeisance to the principle of totality.

90I am of the view that a fit sentence would require 9 years imprisonment inclusive of a 1 year consecutive term for prohibition breaches.

Sentencing Order

91For these reasons, the following sentences will be imposed, to be served concurrently:

Information No. 18-3864:

• Count 1: CDSA 5(2) cocaine: 3 years
• Count 2: CDSA 5(2) methamphetamine: 4 years
• Count 3: CDSA 5(2) gamma hydroxybutyrate: 4 years
• Count 4: CDSA 5(2) cannabis marijuana: 3 months
• Count 5: CDSA 5(2) hydromorphone: 4 years
• Count 6: CDSA 5(2) proceeds: 1 year
• Count 7: CDSA 5(2) heroin & fentanyl: 8 years
• Count 8: CDSA 5(2) fentanyl: 8 years

Information 18-3871:

• Count 1: CCC 86(2) careless storage of firearm: 2 years
• Count 4: CCC 95(1) possession of loaded prohibited or restricted firearm: 5 years
• Counts 5 to 8: CCC s. 117.01(3): 1 year on each count to be served concurrently to each other but consecutive to other sentences imposed

92Time served of 393 days will be credited on a 1.5 to 1 basis for a total credit of 589 days or 1 year and 7 months.

93Ancillary orders for DNA, a section 109 order for life and an order pursuant to section 743.21 of the Criminal Code prohibiting contact with Tara Brennan.