



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Ribble, 2021 ONCA 897

DATE: 20211216

DOCKET: C67465

MacPherson, Coroza and Sossin JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joseph Ribble

Appellant

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 appellants 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-accuseds 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 appellants 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 appellants 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    underlying facts of the prior charges that were withdrawn, stayed or resulted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    appellant was convicted and charges which were withdrawn, stayed or resulted in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 Canadas 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 judges 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
    appellants residence.

[12]

The
    trial judge also drew inferences from other evidence in the record. For
    example, with respect to the evidence of the co-accuseds 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 appellants criminal history at para. 58, we see no error in
    the trial judges 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 judges 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.


