Court File and Parties

COURT OF APPEAL FOR ONTARIO DATE: 20211216 DOCKET: C67465

MacPherson, Coroza and Sossin JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Joseph Ribble Appellant

Counsel: Joseph Ribble, acting in person Janani Shanmuganathan, appearing as duty counsel Erin Carley, for the respondent

Heard: December 9, 2021

On appeal from the conviction entered on August 8, 2019, and the sentence imposed on September 9, 2019, with reasons at 2019 ONCJ 640, by Justice P.H. Marjoh Agro of the Ontario Court of Justice.

Reasons for Decision

[1] The appellant was convicted of various drug and firearm related offences. He was sentenced to a nine-year global sentence.

[2] The only issue at trial was the appellant’s application contesting the validity of the search of his home under s. 8 of the Charter of Rights and Freedoms. The appellant challenged whether the Information to Obtain (ITO) provided the necessary reasonable and probable grounds to justify a search warrant for his residence. The trial judge found that the ITO, together with the record, justified the search warrant and dismissed the s. 8 Charter application: R v. Brennan & Ribble, (July 30, 2019), Hamilton, 18-3864 & 18-3871 (Ont. C.J.).

Conviction Appeal

[3] With respect to the conviction appeal, on behalf of the appellant, duty counsel argues that there were no reasonable and probable grounds to believe there would be relevant evidence at his residence when the warrant was granted.

[4] The information sources relied on by the police in the ITO said that the appellant and his co-accused used his co-accused’s workplace, a salon, to traffic drugs. There was no specific information that the appellant used his own residence to traffic drugs.

[5] There were prior charges against the appellant involving drugs and firearms found in the appellant’s car, his former residence and the salon, but these charges were dropped, stayed or resulted in acquittals. The charges which did result in convictions had no connection to the appellant’s residence.

[6] The appellant argues that the ITO should not have included the underlying facts of the prior charges that were withdrawn, stayed or resulted in acquittals. In referring to his “criminal history,” the appellant submits that the trial judge failed to distinguish between charges on which the appellant was convicted and charges which were withdrawn, stayed or resulted in acquittals: see paras. 28, 58.

[7] According to the appellant, this rendered the resulting search warrant invalid.

[8] We do not agree.

[9] The facts underlying charges which do not result in convictions, in some circumstances, may be validly considered as a basis for search warrants, though in other cases will be “irrelevant and improper”: R. v. Vivar, 2009 ONCA 433, at para. 1. In R. v. James, 2019 ONCA 288, 373 C.C.C. (3d) 364, at para. 59, Nordheimer J.A., in dissenting reasons, held that it was not inappropriate to rely on facts underlying stayed charges to justify search warrants. Nordheimer J.A.’s dissent formed the basis of the Supreme Court of Canada’s decision allowing the appeal in that case: R. v. James, 2019 SCC 52, 383 C.C.C. (3d) 70.

[10] In this case, unlike James, there was no attempt to conceal the fact that certain prior charges against the appellant had been withdrawn, stayed or resulted in acquittals. Further, the underlying facts of these charges, to the extent that it formed part of the ITO, were corroborative of other evidence arising from police operations and observations relied upon by the trial judge in reaching her finding: see e.g. paras. 74-80 of the trial judge’s reasons on the Charter ruling.

[11] For example, in April 2018, a police operation observed a car being loaded with furniture and other items from the salon. The car was later seen at the appellant’s residence.

[12] The trial judge also drew inferences from other evidence in the record. For example, with respect to the evidence of the co-accused’s eviction from the salon where drugs were known to be stored and sold, the trial judge inferred that a new location from which to store and sell drugs needed to be found.

[13] The trial judge concluded that the warrant was justified based on the totality of the evidence. While it would have been preferable for the trial judge not to conflate prior charges against the appellant leading to convictions with those resulting in charges withdrawn, stayed or leading to acquittals in her reference to the appellant’s “criminal history” at para. 58, we see no error in the trial judge’s ultimate finding on the s. 8 Charter application.

[14] In light of the conclusion above, we do not reach the s. 24(2) Charter issue.

Sentencing

[15] The appellant was sentenced to a nine-year global sentence. He was credited with 589 days for 393 days of pre-sentence custody. The trial judge also imposed ancillary orders for DNA, s. 109 for life and prohibiting contact with his girlfriend, the co-accused.

[16] The appellant argues that the sentence was excessive.

[17] The trial judge reviewed the aggravating and mitigating factors relevant to sentencing the appellant in some detail, in addition to the case law on sentencing in relation to similar offences. She concluded:

[81] An 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.

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

[83] The 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.

[84] Reflecting on the purposes and principles of sentencing, and the presenting aggravating circumstances, the sentences sought by the [Public Prosecution Service of Canada] 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.

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

[86] Ribble 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.

[87] As 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.

[88] Mindful 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.

[89] 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.

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

[18] The appellant argues that the fact that he is an addict should have been considered as more of a mitigating factor than it was.

[19] We disagree that this is a basis to interfere with the trial judge’s sentencing discretion. In all the circumstances, we find that the sentence was reasonable.

[20] Accordingly, the appeal is dismissed.

“J.C. MacPherson J.A.”

“S. Coroza J.A.”

“Sossin J.A.”