Court File and Parties

Ontario Court of Justice

Date: February 12, 2020

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

Between:

Her Majesty the Queen

— and —

Tara Brennan

Before: Justice P.H.M. Agro

Heard on: May 27th, May 29th, July 26th, August 8th, August 19th, August 21st, November 29th, 2019, January 2020, and February 6th, 2020

Reasons for Sentence released on: February 12th, 2020

Counsel:

Mr. S. Kim – counsel for the Crown
Mr. J. Razaqpur – Public Prosecution Service of Canada
Ms. C. Keystone – counsel for the accused Tara Brennan

Reasons for Sentence

Agro J.:

Convictions

[1] Tara Brennan 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 under 3 KG, respectively, two counts of possession of the proceeds of crime, under $5000, one count of careless storage of a firearm, and one count of possession of a loaded prohibited or restricted weapon. Findings on two other firearms counts, contrary to sections 91(1) and 92(2), were stayed by the provincial Crown on the basis of R v Kienapple, [1975] 1 S.C.R. 729.

[2] Brennan was jointly charged with Joseph Ribble, who was sentenced on the 9th of September, 2019.[1]

Background to the Offences

[3] At 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.

[4] The fruits of that warrant, as it related to Brennan, included a Bersa semi-automatic handgun, 12 Winchester .380 automatic bullets, 3 bundles of cash totalling $2970 (of which $2250 is attributable to Brennan), 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.

[5] Counsel for both Brennan and Ribble were in agreement that my determination of the validity of the warrant would be dispositive of trial issues.

[6] In my reasons for ruling, delivered 26 July 2019, I upheld the warrant and findings of guilt were entered for Ribble on August 8th, 2019, and ultimately for Brennan on August 21st, 2019.

[7] Police 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 the salon and ran a trafficking operation in multiple illicit drugs from that site using his motor vehicle as a mobile dispensary. Police information was that they also dispatched "runners" from the salon location.

[8] When 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.

[9] Upon execution of the warrant, that theory was proven.

The Offender

[10] Tara Brennan is 39 years of age. She was raised by her mother and did not meet her father until she was 11 years of age. She has a half brother from her mother and other siblings from her father whom she has not met.

[11] Brennan has indigenous ancestry from her maternal grandfather. Her family is registered under the Métis nation of Ontario.

[12] Her ancestral history and personal circumstances are set out in some detail in the Gladue report, prepared for sentencing.

[13] Brennan's criminal record includes 5 convictions under the Controlled Drugs and Substances Act, 4 for simple possession and one for possession for the purpose of trafficking. Those offences span the period between 2012 and 2019.

[14] Other offences include 7 convictions for failing to comply with recognizance, 2 for failing to comply with probation, 1 fail to attend court, 1 possession of counterfeit funds and one conviction as a youth in 1999 for obstructing police.

Positions of the Crown and Defence

[15] Counsel for the PPSC relies on the submissions made in the companion sentencing in [R v Ribble][2] and submits that an appropriate sentence for this offender is in the range of 7 to 8 years arguing that the principles of denunciation and deterrence are paramount factors in sentencing offenders who possess fentanyl and heroin for the purpose of trafficking.

[16] He relies in part on the offender's record for similar offences and the principle of parity of sentence with that of Ribble who received an 8 year sentence on the fentanyl convictions and with whom Brennan was acting in concert. He submits that sentences on convictions for the other drugs should be commensurate with that of Ribble.

[17] The provincial Crown seeks a consecutive sentence of 1 year on the careless storage of a firearm and a concurrent sentence of 3 1/2 years for the loaded prohibited firearm and further 6 months consecutive for the breach of firearms prohibition. These sentences are markedly less than those imposed on Ribble.[3]

[18] Both are seeking non-communication orders with Ribble pursuant to s. 743.21, a DNA order and a lifetime weapons ban under s.109 of the Code.

[19] The defence submits that in recognition of Gladue factors, Brennan's circumstance as an addict trafficker, and her acceptance of rehabilitative programmes while in custody as well as her release plan as outlined in the materials filed, a global sentence of 3 years should be imposed on the drug offences with a concurrent 3 year sentence on the firearms convictions followed by a 6 month sentence for the breach of firearms prohibition.

[20] The parties are agreed that time served to be credited to the date of submissions was 182 days. An additional 16 days are to be added to the date of sentencing for a total of 198 days available credit.

Circumstances of the Offender

[21] These are the highlights of Brennan's personal history contained in the Gladue report:

[22] Her upbringing as a child was devoid of love and nurturing. Her mother abused alcohol and drugs shortly after her birth and constantly had different men around the home. The family moved frequently, being unable to afford rent and often, food.

[23] Nonetheless, Brennan was described to the author of the Gladue report as always helpful around the house particularly after the birth of her half brother, caring for him as a surrogate mother.

[24] Brennan related a number of incidents of sexual abuse in her early childhood. One committed by an adult stranger in her apartment building at age 5 years others at the hand of her uncle when she was aged 7 to 11. These episodes, while disclosed to her aunt and then to other family members, were hushed up.

[25] There were two other incidents of sexual assault. One, when Brennan was about 9 years of age, perpetrated by the son of one of her mother's male friends who would occasionally babysit Brennan. The other assault was when Brennan was 10 years of age, again at the hand of one of her mother's friends.

[26] After this last assault, Brennan left home to live with her aunt.

[27] Brennan attended high school, getting good grades, but started to skip classes and did not complete her high school education. While in high school she learned of her native heritage which had been until then, a family secret.

[28] Attempts to socialize with other Native children at school were unsuccessful as Brennan felt she never fit in. She began living between her mother's home, her aunt's and her friend Kirsten's home where she spent much of her time.

[29] Currently Brennan's major supports are her aunt and her childhood friend, Kirsten. She is working on establishing a relationship with her father with whom she has reconnected.

[30] Brennan's first relationship was in her teens. It was both physically and mentally abusive. This partner introduced her to crack cocaine.

[31] At age 15 Brennan had her first child, Courtney. For a time, the family lived with her mother. The parents separated before their daughter's first birthday.

[32] In order to make ends meet Brennan started working at odd jobs, but struggled as a young single mother and in her relationship with her own mother.

[33] When Brennan was 19 years of age her grandmother died. The loss was traumatic for her, but she never received counselling to deal with her grief. She started to abuse alcohol.

[34] When Courtney was two years old, The Catholic Children's Aid Society became involved in their lives as Courtney was found wandering the streets without supervision. Brennan had left her with an inattentive baby-sitter who was high on drugs.

[35] Brennan's mother refused a kinship agreement to care for the child so she was placed in a non-Native foster home. Brennan did not disclose her Native heritage to CAS as she was fearful it would be used against her.

[36] Brennan had no stable home at this juncture of her life and began working as an exotic dancer, living with friends or at her aunt's home. She experienced two abortions and began marijuana use to cope with her loss.

[37] At age 21 she started a new relationship and had another daughter. She struggled to bond with her children. A third child soon arrived but her relationship ended when her partner was found to be involved with another woman.

[38] Brennan left her children with her former partner and began another downward spiral. She again took up exotic dancing and began using crystal meth.

[39] She had another brief but unsuccessful relationship.

[40] Brennan quit the exotic dancing in favour of a few temporary placements at Tim Horton's and Swiss Chalet. She went back to school to become a Personal Support worker but found that work triggered painful memories of her grandmother's passing.

[41] Brennan met her co-accused Joseph Ribble in 2014/2015. They began living together but drugs overtook their lives, resulting in a number of convictions for both of them. Ribble in particular had a serious drug problem and suffered multiple overdoses from fentanyl use.[4]

[42] Brennan did manage to pursue a career as a hairdresser and completed a residential drug treatment programme in Manitoba in 2018. She returned to Hamilton after that programme and rekindled her relationship with Ribble, continuing her hair salon business. They remained together until their arrest on May 8, 2018.

Gladue Factors

[43] Section 718.2(e) imposes a duty on this court to undertake the sentencing of aboriginal offenders individually but differently with consideration for the unique systemic factors or background that may have played a part in bringing the offender before the court and the types of sentencing procedures and sanctions which may be appropriate in the circumstances for that offender because of her particular aboriginal heritage or connection.

[44] As set out in the Gladue report:[5]

The Metis are a distinct Aboriginal people with a unique history, culture, language and territory that includes the waterways of Ontario, surrounds the Great Lakes and spans what is known as the historic Northwest.

The Metis Nation is comprised of descendants of people born of relations between Indian women and European men. The initial offspring of these unions were of mixed ancestry. The genesis of a new Aboriginal people called the Metis resulted from the subsequent intermarriage of these mixed ancestry individuals.

[45] Section 35 of the Constitution Act, 1982 states that Indian, Inuit and Métis peoples are Aboriginal peoples for the Constitution, but it was not until a declaration by the Supreme Court of Canada in the 2016 decision of [Daniels v Canada (Minister of Indian Affairs and Northern Development)][6], that it was clarified that historical, philosophical, and linguistic contexts included Métis for section 91(24) legislative purposes.

[46] Due to the lack of legislative clarity until Daniels, the residential school policy was applied haphazardly to Métis communities, with many children residing on reserves and unable to attend public provincial schools and many attending residential schools as there was no other educational option.[7]

[47] While there is no evidence of members of Brennan's ancestral family attending residential schools, the Gladue report does set out the effect of Brennan's maternal grandfather entering into a relationship with a white woman and the practice of post-war enfranchisement on the loss of identity, culture and community.

[48] Although Brennan's maternal grandparents maintained a relationship that resulted in the birth of 5 children, her grandmother was not permitted to live on reserve with her partner and raised her children alone.

[49] Brennan's grandfather served in World War II. Racial barriers combined with stringent health and education requirements barred him from serving in the Navy or Air Force. As a serviceman in the army, he was considered a "half-breed".

[50] Post war, Indian veterans faced unequal access to benefits and programmes provided to help veterans re-establish themselves in civilian life.

[51] Enfranchisement became legally compulsory and Indian veterans found that their status as such was taken away from them upon their return from the war.

[52] After the war Brennan's grandparents settled in Hamilton. Her grandmother operated a bootlegging business out of their home and developed a drinking problem. The family ancestry was seldom discussed, and then, only in whispers.

Gladue Factors and This Offender

[53] In this case, in addition to racially motivated discrimination that kept Brennan's grandparents away from each other, enfranchisement was a legal mechanism that discriminated against Brennan's grandfather leading to a loss of his identity and culture and that of his children and grandchildren.

[54] The seed for Brennan's unfortunate path was sown with the abuse, neglect and instability of her childhood. How much of that is attributable to her grandfather's enfranchisement, as opposed to other influencers, is not entirely clear from the Gladue report.

[55] This is not to suggest that the offender need establish a direct causal link between the systemic and background factors and the commission of the offence as is prohibited in [R v Collins][8], but rather to illustrate the apparent duality of factors that impacted this offender.

[56] What is evident is the lack of early nurturing combined with the inability to reconcile aboriginal status once it became known to her, had an adverse effect on Brennan's functioning and decision making.

The Offender's Attempts at Rehabilitation and Release Plan

[57] Brennan's attempt at rehabilitation at a residential treatment centre in Manitoba in 2018 was short-lived as she made her way back to Hamilton and again took up with Ribble and his addict lifestyle.

[58] She has 10 certificates of completion of various one hour sessions in the Women Abuse Education Programme with the Elizabeth Fry Society in 2019 and 2 certificates of completion for the same sessions in 2010, completed while in custody.

[59] In addition she has connected with the Native inmate Liaison Worker at the Hamilton Wentworth Detention Centre, has completed the Journey Programme and is participating in smudging ceremonies.

[60] In connecting with the Gladue Support Worker, Kristin Wythe, she has prepared a Plan of Care that includes residential treatment at the Rainbow Lodge In Wikwemikong, Ontario and counselling with an indigenous trauma-informed registered psychotherapist.

[61] Her long term plan for self-sufficiency, according to Ms Wythe, includes working at "the hair salon she owns in Hamilton". It strikes me that Brennan may have misinformed Wythe about the fate of her hair salon, or alternatively, Ms Wythe misunderstood Brennan's plan.

The Authorities

[62] I am mindful of the principles and purposes of sentencing as set out in ss. 718 and 718.1 and 718.2.

[63] In [R v Ribble][9], I undertook a review of the authorities regarding the dominant principles for sentencing in fentanyl and heroin convictions, the dangers of those two drugs, as well as whether there is a distinction between a trafficker for profit and an addict trafficker and the appropriate range of sentence for same.

[64] I adopt that analysis and conclusion as they apply equally to Brennan as they did to Ribble.

[65] It was clear from the evidence at trial that Brennan and Ribble operated a joint enterprise, using her salon as a front for trafficking.

[66] They maintained a virtual pharmacy of drugs ranging from highly addictive opioids to GHB and operated from that salon until the move to 83 Hildegarde. Brennan's participation is no less culpable than that of Ribble.

[67] As noted by Nelson, J. in the 2014 decision of [Medeiros-Sousa][10], the Ontario Court of Appeal mandated that barring exceptional circumstances, trafficking in heroin, even for a first offender will result in a penitentiary sentence.[11] 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.[12] 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.[13]

[68] Therefore, denunciation and deterrence remain the primary principles of sentencing for such offenders.

[69] Denunciation is of particular concern to the Hamilton community.

[70] Fentanyl powder has flooded the illicit drug market in this city and the number of fentanyl powder charges in this jurisdiction is rapidly increasing, whether as pure fentanyl, or a combination of fentanyl and heroin.

[71] In this jurisdiction fentanyl abuse is regularly identified as underlying many of the offences in this city and fentanyl users are the new norm in Drug Treatment Court. Our Detention Centre is notorious for drug overdoses, including fentanyl.

[72] These are matters that I can properly take into account in fashioning an appropriate sentence: [R v LaCasse][14].

[73] Likewise with the firearms offences, the predominant principles of sentencing are denunciation and deterrence.

[74] A review of the relevant authorities respecting firearms offences, especially those combined with drug offences was undertaken in [R v Ribble][15].

[75] My finding respecting Ribble's possession of the Bersa semi-automatic, applies equally to Brennan, his partner in this enterprise. That is, Brennan had no lawful purpose for possession of the gun, which was in plain view in their residence. She too was prohibited from the possession of such weapons and I find as it relates to Brennan as well, the possession of the firearm was part of the "tools" of their drug activity.

[76] As I stated in Ribble, at para 77 & 78:

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

Possession 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][16] and [R. v. Chartrand, [2018] M.J. 355][17].

Aggravating and Mitigating Factors

[77] In Brennan's case, I find the aggravating circumstances to be these:

Brennan has a record for similar drug offences
As a long term drug user herself and long time companion of Ribble who herself had suffered multiple overdoses, the dangers and effects of illicit drug use were well known to her, yet she pursued the lifestyle of a mid level dealer for profit in concert with him
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
The combination illicit drugs with a semi-automatic forearm is a lethal one on multiple levels
There was extra ammunition, unsecured in the residence

[78] There are some mitigating factors:

Brennan has support from her aunt in pursuing recovery and healing within the context of her aboriginal heritage
She has reached out to the Gladue Worker with a view to a release plan that includes residential treatment
She is herself an addict, currently motivated to seek treatment for addiction, childhood abuse and trauma
In her allocution to the court, Brennan expressed regret for her life's choices
She is a hairdresser, capable of maintaining employment once she is drug free

[79] While not citing Gladue factors as a mitigating circumstance per se, that Brennan is of Metis heritage, makes Gladue factors relevant and applicable in her case.

Conclusion

[80] An appropriate sentence must reflect the circumstances of these offences and those of Brennan, clearly denouncing them, deterring Brennan and other like minded individuals from repeating them and protecting society from drug dealers and their toxic wares.

[81] Equally, those combining drug trafficking with firearms must especially get an unequivocal message of denunciation.

[82] The position taken by the defence minimizes the serious nature of the charges and the aggravating circumstances as I have found them, putting too much emphasis on mitigating circumstances and in particular Gladue factors.

[83] As was enunciated by LaForme, J.A. in [R v Kakekagamick][18], when referring to principles of sentencing other than restorative justice:

As was noted in Gladue, Aboriginal people also believe in the importance of those latter objectives. Those principles will always be relevant and may predominate for more serious offenders or where the offence is serious enough that imprisonment is necessary.[19]

[84] While restorative justice weighs heavily in Brennan's sentencing, it does not weigh as favourably as the principles of separation, denunciation and deterrence.

[85] Indigenous peoples too are victimized by the trafficking and consumption of illicit drugs, perhaps even more than the non Indigenous population.

[86] However, taking each Crown position at its highest, the aggregate sentence would be 12 years if imposed consecutively.

[87] Brennan has never served a penitentiary sentence, her custodial dispositions never exceeding 5 months. A custodial sentence of that length would not reflect the principles of totality and parity, in this case with Ribble, nor does it pay any service to the principle of restorative justice.

[88] As in Ribble, and mindful of the aggravating and mitigating factors and recognizing that these offences are linked for 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:

In 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.[20]

[89] I conclude that a fit sentence, accounting for all relevant factors requires imprisonment for 7 years and 6 months, inclusive of a consecutive sentence for the prohibition breach.

[90] The allocation of that sentence is as follows:

Information 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: CCC 355(b) proceeds – 1 year
Count 7: CDSA 5(2) heroin & fentanyl – 7 years
Count 8: CDSA 5(2) fentanyl – 7 years
Count 9: CCC 355(b) proceeds – 1 year

All to be served concurrently

Information 18-3871:

Count 1: CCC 86(1) careless storage – 1 year
Count 4: CCC 95(1) possession loaded firearm – 3 ½ years

To be served concurrently and concurrent to information 18-3864

Count 9: CCC 117.01 prohibited possession – 6 months

To be served consecutive to all other sentences

[91] Time served is found to be 198 days, credited on a 1.5:1 basis for a total of 297 days, or 10 months. After the allocation of credit, the remainder to be served is 6 years and 8 months.

[92] I will recommend that Ms. Brennan serve her sentence in a facility where she can receive treatment for addiction and trauma issues from indigenous informed specialists.

[93] Ancillary orders for DNA, a section 109 order for life and an order under s. 743.21 prohibiting contact with Joseph Ribble except through counsel for appeal or trial purposes, will issue.

Released: February 12th, 2020

Signed: Justice P.H.M. Agro