Court Information

Ontario Court of Justice

Date: 2018-06-20

Court File No.: Central East Region

Parties

Between:

Her Majesty the Queen

— AND —

Anthony Mastromatteo

Judicial Officer and Counsel

Before: Justice J. Bliss

Heard on: January 24, 2018 and April 27, 2018

Reasons for Judgment released on: June 20, 2018

Counsel:

• Karen Jokinen, counsel for the Crown
• Thomas Bryson, counsel for the accused Anthony Mastromatteo

Judgment

BLISS J.:

Charges and Guilty Plea

[1] Anthony Mastromatteo has pleaded guilty to charges that:

[He] and Ryan McPhail between the 5th day of September in the year 2016 and 31st day of October in the year 2016 at the City of Barrie, County of Simcoe and elsewhere in the Province of Ontario did conspire together and/or with a person or persons unknown to commit the indictable offence of importing Fentanyls including its salts, derivatives, isomers and analogues and salts of derivatives, isomers and analogues contrary to Section 465(1) of the Criminal Code;

And that on or about the 7th day of October in the year 2016 at the City of Barrie…did, while being bound by a probation order made by Justice C.M. Harpur of the Ontario Court of Justice on June 22, 2016, fail without reasonable excuse to comply with such order, to wit: do not possess or consume any unlawful drugs or substances except with a valid prescription in your name or those available over the counter, contrary to Section 733.1 of the Criminal Code;

And that on or about the 7th day of October in the year 2016 at the City of Barrie…did possess a substance included in Schedule I to wit: methylenedioxymethamphetamine, its salts, derivatives, isomers and analogues and salts of derivatives, isomers and analogues, for the purpose of trafficking contrary to Section 5(2) of the Controlled Drugs and Substances Act.

Facts

[2] The facts were admitted pursuant to an agreed statement of facts along with a number of exhibits, filed on consent, which detailed Mr. Mastromatteo's involvement in the procurement of fentanyl and other drugs from a Chinese mail order website, text messages that describe in detail his involvement in the sale and distribution of drugs including fentanyl and others, and his connection to five fentanyl overdoses that Barrie police and ambulance personnel had to respond to in October, 2016.

[3] Anthony Mastromatteo's journey, revealed in the Pre-Sentence Report, and expanded on in letters of reference tendered on his behalf, show how he went from witnessing the devastating effects of drug use in his own family to causing that very same misery to others.

The Overdose Incidents

[4] Between October 2nd and October 7th, 2016 alone, seven people who had overdosed on fentanyl came to the attention of the Barrie police. On October 2nd, Barrie police responded to five people who were at a party and consumed what they believed to be cocaine from the same bag of drugs supplied by one person. All five later overdosed in the downtown Barrie bar district with near fatal results. Only through the fortuitous and timely intervention of the police along with ambulance personnel, and treatment with Naloxone, were the effects of the overdose able to be reversed.

[5] Investigation determined that the cocaine the victims thought they had used was laced with fentanyl. Ryan McPhail was identified as the dealer who provided the drugs in question. On October 3, 2016, he was arrested and charged with a number of drug trafficking and related offences.

Police Investigation and Arrest

[6] The police investigation, including information from a confidential informant, led police to believe that Anthony Mastromatteo had supplied the fentanyl to Ryan McPhail. Police set up surveillance at Mr. Mastromatteo's residence at 81 Innisfil Street Unit #1 in Barrie and watched a male walk up to the residence, speak to an occupant at the door and walk away placing something into his left front pocket. They then watched as Fire and Ambulance personnel along with police responded to a call at that address of an unknown male overdosing on fentanyl. Mr. Mastromatteo and another male were at the apartment. Although unknown to the police at the time, it turned out that Mr. Mastromatteo had not supplied the fentanyl to the male who had overdosed. Attending police officers were instructed to arrest Mr. Mastromatteo and the other male. After being provided with Rights to Counsel and cautioned, Mr. Mastromatteo admitted that there was an ounce of MDMA inside the residence but that "it wouldn't test for MDMA". Analysis determined that the substances were MDEA.

[7] Searched incident to arrest, police located a cell phone and $1580 on Mr. Mastromatteo. The cell phone appeared to have been immersed in water. Mr. Mastromatteo later admitted that he had dropped the phone in the toilet before police arrived at his residence. On October 7th police obtained and executed a search warrant to search the residence. In his room, police found a total of 41.45 grams of suspected MDMA (actually MDEA) in two packages, packaging materials, scales, cell phones, currency, and a starter's pistol and ammunition. As well, packaging from suspected mail order drug purchases from China were located in his room. This would be what was left of his mail order purchases, establish the trail of his drug buys from an illicit Chinese website into his hands, and, along with the evidence discovered on his cell phone, demonstrate his role in supplying the local market with drugs and, in particular, fentanyl.

The Accused's Conduct and Persona

[8] Words fail to convey the human cost of the fentanyl crisis that communities across the country, and this community in particular, are facing. Words have a sterility to them. Lives lost, literally and figuratively are not sterile. To put it bluntly, people are dying. Until his arrest, Anthony Mastromatteo was an unabashed importer and peddler of a variety of drugs including, most significantly, fentanyl. Photographs he posted on his Facebook page under the moniker "Twan Numbafour Mastromatteo" show him adorned with oversized rings, necklaces, and grills on his teeth holding a wad of bills like a fan, with lyrics copied from The Game's "Gucci Everything": "We got all the money, if y'all was looking for it. My life is a movie, my Gucci imported. I just do this shit for a hobby. Wearin all this jewelry exciting the federalies."

Cell Phone Evidence

[9] Exhibit 6 is the extraction report from Anthony Mastromatteo's cell phone. It contains drug-related "chats" through Facebook Messenger between April 26, 2014 and October 5, 2016 with seven different individuals, his web history which showed his extensive repeated visits to the Chinese website that he ordered and received drugs from, and his email correspondence with the same Chinese website. There are also 1516 text messages from September 2, 2016 until October 7, 2016.

[10] Mr. Mastromatteo wasn't just posing as a "gangsta", he acted like one. Extraction of the contents of Mr. Mastromatteo's cell phone revealed inquiries about furanylfenta for sale, how to cook crack in a microwave, and buying research chemicals for sale online. The text messages, social media posts and Facebook chats with those in his drug-using social circle give some insight into the daily lives and thought processes of individuals whose lives are driven by, and centred around, drugs.

Mail Order Drug Purchases

[11] On June 22, 2016, Anthony Mastromatteo began serving a 45 day conditional sentence for possession of a scheduled substance that was to be followed by a 12 month probation order. What I glean from the material before me, was that this was for heroin and oxycontin that had been found at his mother's residence while she was still alive and he was living there. Undeterred in any way by the Conditional Sentence order, Mr. Mastromatteo's cell phone confirms that he was ordering drugs from a Chinese mail order website, B***.com from at least July 11, 2016. There is a July 13, 2016 message from the website to Anthony Mastromatteo thanking him for his order and providing him with a tracking number for his order #8212 made on July 11, 2016 for (NO.1 1g Furanylfenta***(Fu-F), No. 2 1g U-4-77*). And a short time later that he was provided with a tracking number for his order of a "bag of Fuf labered 1 bag of U-4 labered 2 Follow them then pls."

[12] The drugs were sent to him via the United States. In his correspondence with the operator in China, Mr. Mastromatteo questions how long the delivery will take. On July 25, 2016 payment is confirmed. On July 28, 2016, Mr. Mastromatteo asks "will there be more ethylone small crystals available soon would love to place an order of them". And then a few hours later asks "will the bk-epdp come in crystal form? just wasn't sure how that work with the shipping." The next day he writes "ya I was looking to order around 50gs of the bk epdp an probably another 20gs of the u47700 my next order are you saying that's not possible or?" Then on August 7, 2016, "Please let me no as soon as possible please I would like to place an order but I don't wanna place it for over 10gs if it is not guaranteed."

[13] On August 9, 2016, he writes "it would be really nice if you guys could send me a little sample of the bk epdp to try with this order before I place a bigger order of it?" In a message timestamped August 9, 2016 23:36:09, he receives confirmation that the site picked up the money and asks "if his order will be sent now and also asks for a sample of the bk epdp."

[14] On August 9, 2016, payment for another order was confirmed the same day and he again asks if "you could send a sample of the bk epdp crystal so I can test if before I order a lot of it". Thirteen days later he writes that "[he] received a sample of the bk epdp I am just wondering why it was power instead of crystal."

[15] What follows is a request for "it" to be sent to the same address and asks again if it will be crystal because the sample sent was powder.

[16] On August 25, 2016 he writes to the website operator, "Please let me no how much canadian money I need to send for 56grams of the bk epdp and for it to be sent it two seperate packages"? He then writes that he has sent 427.63 usd and "also that it would be very nice if you could send a sample of the 4-c-pvp and the 2nmc I would like to buy a good amount of these products but". The message ends there.

[17] On August 28, 2016 Mr. Mastromatteo provides his own address and own name and asks for delivery on different days. On September 5, 2016, the website sends him a message for his order #9710 (No.1 20g Furanylfenta***(Fu-F). That, according to his subsequent messages leading up to September 15, 2016, went to the wrong address. He writes "Hey you sent my stuff to the wrong address, did u send all three packages to 1042 waterbury cr or did you only send one there and the rest to 81 Innisfil st". He then writes "please just no for my future orders that I do no live at 1042 waterbury cr anymore please only send them to 81 innisfil Barrie Ontario." The obvious inference being that the website has his previous residence on file which they would only have if he had made and received orders from when he was living at that address. How long exactly Mr. Mastromatteo has been receiving and using or distributing illicit drugs from this website is an open question.

[18] What then emerges is that there was some delay in his receiving the "fu.f" having received the "bk epdp" on September 20, 2016. He complains on September 22, 2016 that "this is the third packages that has messed up" and he follows that up on September 26, 2016 with the comment "Like I really need this stuff and I can't wait a whole nother month this is so messed up every package you guys sent me has messed up…"

[19] On September 27, 2016 he complains that "I received my package but this is the third time its been short it was only 18gs of the fu-f and both packages of the bk epdp was only 27g so can u please send me the 2gs of bk epdp and 2 gs of the fu." Then, "I've triple checked it with 2 different electronic scales as well it is 100% short the first 4 orders were right on even abit extra but these last three were short…"

[20] On October 5, 2016, he is again making orders and payments and the record of his orders ends on October 7, 2016 with confirmation that "your package of 23g FuF has been sent out", provides a tracking number LM106785287CN and tells him to follow it. Following it, courtesy of the police extraction of Mr. Matromatteo's cell phone (ex 4) matches up the tracking number to the item mailed from 518133 China to Canada, and delivered to Barrie on October 31, 2016.

Nature of the Drugs

[21] Webpages from "B***.com" for the two products in Mr. Mastromatteo's web history describe FuranylfentaFu-F as an opioid analgesic that is an analog of fentan and has been sold online as a designer drug. Its warning was that it is not for human or veterinary use, is only provided as the science research. The bk-epdp (crystal) also sets out the warning but notes that it "is the newest research crystal which is similar with ethylone and dibutylone, it was thought to be analog of ethylone and methylone and stronger than dibutylone. The physiological and toxicological properties of bk-epdp (crystal) are not known yet. It is available for sale as a grey area research chemical through B**.com.

[22] Such a caveat may seek to lay responsibility on the purchaser, but just as the website seems to have little in the way of governance, Mr. Mastromatteo demonstrated a distinct lack of care or concern for anyone other than himself in getting and distributing whatever he happened to receive from China to his network of users. Manufactured legitimately, fentanyl is exceedingly dangerous. When used for an illegitimate purpose, manufactured by some unknown overseas entity, its use is like playing Russian roulette with Mr. Mastromatteo supplying the gun and the bullets.

Callousness and Amorality

[23] The text messages sent to and from Anthony Mastromatteo provide an illuminating and depressing window into the sad and wasted lives of those who are addicted to drugs. And yet, what is revealed by Mr. Mastromatteo's exchanges is a glamorization of drug use, a glorification of his role in the drug subculture, and his assumption of a "gangsta" persona.

[24] There is a callousness and amorality to Mr. Mastromatteo's attitude and actions: There is little that does not have to do with drugs. The limited web history able to be extracted showed that he had visited b***.com inviting those to "Buy research chemicals for sale online" 93 times, www.b***.com/sedatives-c-22/furanylfenta***(Fu-F)-p-121.html 33 times offering Furanylfenta***(Fu-F) for sale, and searched for "how to cook crack in [a] microwave".

Facebook Messenger Exchanges

[25] An example of his Facebook messenger chats are illustrative: On September 2, 2016 there is an exchange with "H" initially asking: "And can you get a lot more of this white stuff." His answer: "Ya in 2weeks right now I only got a g and a half that I gotto make last as long as possible cause I cant get more for 2week." It continues: "True…Well u can still sell me some of that right?" To which Mr. Mastromatteo answers "Ya".

[26] Three days later Mr. Mastromatteo is still texting with H. This time it is about the white stuff and when told "it's Rubins shit", Mr. Mastromatteo asks if H is meeting with rubin and if he can come with "so I can talk to him he was good friends with my mom I wanted to lwt (sic) him no she passes il still buy u a point maybe 2 depending". When told "it's not up to mo" which I take to be "it's not up to [H]", Mr. Mastromatteo tells him "OK just let him no its carolyns son". Mr. Mastromatteo uses his mother's death as a business opportunity to forge a new relationship with a potential supplier. Far from being distraught by his mother's death, said to have been exacerbated by drug addiction, he exploited it and used her death to try to get an in with other suppliers of drugs that he could then peddle.

[27] Later on, Mr. Mastromatteo offers methadone to other callers. He is also asked about having white, that he has "other bomb stuff", powder. The desperation is evident in H asking "Twan" for a point to feel better so "I can do the work for more money lol…U know how is". And Mr. Mastromatteo says at various times, that "his fet is in" to two interested parties identified as H and C.

[28] On September 27, 2016 MR texts him that "that shit was deadly" and later "LOl my girl went down and asks was it fentanyl" and goes on that "my girl went down in the middle of the street. Fucking scary. The stuff was good I think it is fentanyl". Mr. Mastromatteo's response: "I told you it was good…" Far from being alarmed by the overdose, he boasts about it as proof of the how "good" his product was.

[29] Other Facebook messenger chats have one associate looking for "percs" and "Twan Numbafour Mastromatteo" offering. Then Mr. Mastromatteo later on looking for anyone with something as "I'm sick as fuck". Later still, he offers that "I got crazy molly for real cheap if u no anyone". On October 1, 2016, he writes "RGG" "…I got my own fet pow right now and I can do it like 125 a g". After a few exchanges, he is then asked "is the fet powder good" and Mr. Mastromatteo writes back "Ya bro its pretty good". He prices it at "150 a g but it has to be heated alot more then usual for people to bang it". When questioned if it is fet powder he writes "everyone says its fet powder…its like a pow but it has kittle grains that looks like salt".

[30] In a separate exchange with JK on October 2, 2016, Mr. Mastromatteo responds to JK "lookin to graba little something" by telling him he has "only h and m" then after some negotiations he writes "but yo im not gonna lie like everyone else does in this town the stuff I have isn't h its fentanyl powder" but then sells it as "better then most down around tho".

[31] On October 3, 2016, an individual I will identify as JL sends a message asking if he "could grab a point 2 of fetty for 20 fam". Mr. Mastromatteo responds "No its 20 a p". The topic then changes to whether JL still needs molly. He later on asks JL if he had "tried the pink molly" and whether his "stuff is better as [he] was wondering if [he] should start getting the pink instead". He then asks "[if his] stuff is better than [his] old yellow stuff"?

[32] From a review of the five weeks of texts messages that were able to be obtained, it seems that every waking moment was spent with people wanting to buy drugs off him, begging to buy drugs off him, bartering to get drugs off him and Mr. Mastromatteo indulging them. While Mr. Mastromatteo reveals himself to be a user as well, it is clear that he is no simple addict trafficker, but engaging in commercial drug transactions to reap financial profit more so than, as is sometimes said, to feed his addiction.

[33] I could randomly choose any one of the 1516 text messages and find conversations with, and from, Mr. Mastromatteo about drugs, getting drugs or offering drugs for sale. Individuals, dope sick, and in desperate need of a fix, telling him so and seeking to get drugs from him. It wasn't just that Mr. Mastromatteo was conspiring to import fentanyl and possessing for the purpose of trafficking in MDEA, he was essentially an illicit pharmacy dispensing drugs like bullets for the buyers to play Russian roulette with. I could do no better in trying to describe Mr. Mastromatteo's conduct than to simply append the cellphone analysis report. The users' words don't comment on the ravages of drug addiction, but express in their language their lives and their struggles and Anthony Mastromatteo's exploitation and predation of them.

Connection to the Overdoses

[34] While he denies that it was fentanyl he supplied that caused the overdose that led to his arrest, the prosecution has established that he provided Ryan McPhail with the fentanyl that laced the cocaine that caused five people to overdose on October 2, 2016. The email/text message trail proved that Mr. Mastromatteo had received it, provided a price to McPhail which he was not happy with and led to him negotiating with Mr. Mastromatteo for a lower price and asking if he can get in on the next time Mastromatteo purchases more Fentanyl. There was then further back and forth and arrangements to meet. This was on October 1, 2016 about 3 hours before McPhail supplied the drugs that was ultimately used by those five people who overdosed in the early morning hours of October 2, 2016. The overdoses occurred approximately 1:04 a.m.. At 2:49 a.m., Mr. McPhail sends a text to Mr. Mastromatteo asking if he was still up. Mr. Mastromatteo does not respond but later texts Mr. McPhail asking if he wanted to go in on the next shipment of fentanyl powder as it is going to cost $2000.

[35] And that is how Mr. Mastromatteo has contributed to the opioid crisis. Fentanyl is killing people. It is so easy to obtain and distribute with such dire consequences that principles of general deterrence and denunciation are paramount.

Background and Personal Circumstances

[36] It must not be lost, however, despite the gravity of his offending that Anthony Mastromatteo is 21 years old. He was 20 years old at the time of the offences before me. He is sadly not a stranger to the criminal justice system nor to the ravages of addiction. He witnessed his own family's use of drugs and had to watch and endure the almost inevitable downward spiral that addiction brings in the lives of those addicted. On June 22, 2016, Mr. Mastromatteo himself was convicted of unlawful possession of a scheduled substance and received a 45 day conditional sentence followed by a 12 month probation order. That sentence provided no deterrence to him nor did it inhibit his criminal conduct in any way. Indeed, as set out, he was actively soliciting and purchasing drugs through the chinese website while subject to that conditional sentence and probation order. So easy was the process, and so confident was Mr. Mastromatteo in it, that he used his own name and his own address for the packages of drugs to be delivered.

[37] Dysfunction fails to convey the family life that he and his siblings were exposed to. It was marked by appalling parenting and tragic consequences. Family members expressed concern about his childhood abuse and victimization. As described in the Pre-Sentence Report, he was not only exposed to his mother's drug use but apparently encouraged by his mother to use himself.

[38] When he was nine years old, his mother was driving his father while drunk, and crashed her car leaving his father a quadriplegic. His mother was incarcerated for this. Rather than having a sobering effect on his parents' drug use, it appeared to worsen following the accident. The C.A.S. became involved and he went to live with his sister who was studying at Trent University. Barely out of her teens, she was unable to care for him and his increasingly rebellious behaviour. After a short stay in foster care, he went to live with his paternal grandparents before returning to his parents' home in Barrie in 2010 at the age of 12. It was during that same year that his father passed away from complications from his paralysis. Mr. Mastromatteo's mother's resulting dire financial straits found him following along her transient lifestyle with multiple evictions, short term hotel room stays, and rental accommodation through his 16th birthday when she became no longer able to manage both of them financially and he was then left to care and fend for himself.

[39] When he turned 18, Mr. Mastromatteo was able to apply for social assistance, and moved back with his mother. There, drugs were rampant, and that was where police found heroin and oxycontin which led to his conviction for drug possession in June, 2016.

[40] In August, 2016 Mr. Mastromatteo's mother died. Mr. Mastromatteo was present when she was found unresponsive. While her death may not have been from a drug overdose but a combination of a medical issues, Mr. Mastromatteo told the author of the pre-sentence report that he suspected it was drug related. Even so, it had no impact on his activities and, as previously described, his text messages were of him opportunistically using his mother's death to get himself introduced to a dealer who knew his mother and could provide another source of drugs for him. While he disputes the passage in the pre-sentence report where he "explained that he was still using and selling drugs and continued his involvement in the drug subculture which was the proponent in someone overdosing in his residence" and suggests he was "just using", the evidence from his cell phone in his text messages and communication with the Chinese website does not support his claim. He was very much involved in obtaining drugs and selling drugs for cash or barter. His social media displays showing off the rewards from his drug dealing activities are those of a drug dealer and not simply an addict.

[41] His schooling was limited due to his unstable lifestyle and truancy. He reported suffering from a learning disorder but his school career was certainly not helped by his behavioural issues which saw suspensions for truancy, fighting and drug issues. He expressed a wish to upgrade his education from its current grade 10 level. His reported employment consists of two short lived episodes working at Jack Astor's in 2017 which ended with his dismissal for failure to appear for shifts and a summer drywalling when he was 16.

[42] According to Mr. Mastromatteo, his parents grew marijuana plants and he was introduced to drugs as a seven year old when he "smoked weed". By age twelve he was smoking marijuana frequently. After his father died, he began using cocaine to "self-medicate and cope". By fourteen he progressed to crack cocaine and then moved, as a sixteen year old, to opiates and heroin. The heroin addiction led to a drug induced psychosis and a suicide attempt that had him hospitalized for three weeks. Following his psychotic episode he was diagnosed with depression and anxiety. Collateral sources suggest that drugs were a parenting technique and his introduction to drugs was through his parents and later on his mother.

[43] Mr. Mastromatteo attributes his escalating drug use to his inability to appropriately cope with his parents' death. Presently he admittedly self-medicates daily with marijuana. He reports having made steps to address his addiction issues and is currently on a methadone program and has been for approximately three years. Since moving to Kingston he has been attending several Narcotics Anonymous meetings per week and is surrounded with positive sober family support.

[44] Mr. Mastromatteo accepts responsibility for his offences and reports that he does not want to waste any more of his life. He described his arrest as a "blessing in disguise as he "could have overdosed and died or [suffered] another drug induced psychosis". Since these offences, Mr. Mastromatteo has been on bail in what has been described as a supportive and healthy environment with his sister and her family. He has also had the support of his mother's previous husband, a chaplain, while in Kingston.

Letters of Reference

[45] James Graham, Mr. Mastromatteo's mother's first husband provided a letter detailing the turmoil brought about by his then ex-wife's drug use including her complicity in enlisting her two sons in her drug dealing. He has watched as Mr. Mastromatteo has reintegrated into a healthy family environment under the terms of his bail.

[46] Elisha Graham is Anthony Mastromatteo's sister. Her letter provides a more graphic picture of Anthony Mastromatteo's childhood and adolescence. She describes his time following his arrest for possession and trafficking in heroin two years ago when he went to reside with her. She saw him progress from an existence driven by drug addiction to one that saw him prepared to take steps to address his addiction to opiates. He entered into a methadone program, and went back to school, and attended a job skills program and obtain employment. She writes that all that changed when he went back to Barrie and culminated in his mother's death. As she writes "both his parents dead from drug use. Right in front of him. From destroying their bodies using opioids. The choices he made after were not great and that's why we sit here today". She describes him now as a different person and one who, she is optimistic, can move forward with his life in a positive way.

Sentencing Principles

[47] The principles underlying the sentencing of offenders is set out in s. 718 of the Criminal Code:

The fundamental purpose of sentencing is to protect society and to contribute…to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives that apply in Mr. Mastromatteo's case:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[48] The following statutory considerations set out in section 718.2 also guide the imposition of a sentence:

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order under section 742.1…

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.

Sentencing Analysis

[49] Deciding on the right sentence involves a balancing of the principles of general deterrence, denunciation, specific deterrence; tempering the need to denounce and deter with restraint and proportionality. The nine year sentence the Crown suggests would certainly address denunciation and general deterrence, but would it be excessive given Mr. Mastromatteo's particular circumstances? A sentence must be proportionate to the gravity of the offence, the offender's degree of responsibility, and his moral blameworthiness (s.718.1).

[50] The sentencing process seeks to put these abstract principles into concrete terms. "The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good." (R. v. Priest, [1996] O.J. No. 3369 (C.A.))

[51] Anthony Mastromatteo's particular circumstances including his age and prospects must also be taken into account to try to ensure that whatever sentence is imposed that it not be crushing. (R. v. Wozny, 2010 MBCA 115, [2010] M.J. No. 384 (C.A.) at para 59). Being just 21 years old now, Mr. Mastromatteo's age is the one thing that is probably his most compelling mitigating circumstance. While as a general rule, a sentence should not be imposed on a youthful offender for the purpose of general deterrence, but should rather be directed at rehabilitation (R. v. Jackson, [2002] O.J. No. 1097 C.A.), as offences become more serious, the mitigating effects of age decrease (R. v. Borde, [2003] O.J. No. 354 (C.A.))

Fentanyl Sentencing Jurisprudence

[52] I have not been provided with any cases dealing with conspiracy to, or importing of, fentanyl. A review of the caselaw dealing with trafficking in fentanyl and the sentences that are being handed down, leads me to the conclusion that those who import or conspire to import fentanyl, being higher up in the supply chain, should be dealt with harsher than those who traffic, and that the drug itself should be dealt with more akin to heroin than cocaine. The language that has been used by judges to describe the devastating effects of heroin and cocaine on communities apply similarly to fentanyl.

[53] As Durno J. set out in R. v. Katz, [2005] O.J. No. 3876 at para 51 "the importation of heroin is one of the most serious offences in our criminal law".

[54] In R. v. Sidhu, 2009 ONCA 81, 94 O.R. (3d) 609, the Court of Appeal increased the sentence for a first offender courier who imported a large amount of high grade heroin to 14 years and 9 months imprisonment. In so doing, the Court noted that

…as this court explained in R. v. Cunningham, 104 C.C.C. (3d) 542 at 547, concerns for "the plight of many couriers" must "give way to the need to protect society from the untold grief and misery occasioned by the illicit use of hard drugs." And lest there be any doubt about it, heroin represents the worst of the hard drugs.

The trial judge's characterization of heroin as "marginally" more dangerous than cocaine finds no support in the record, nor in the existing case law. Time and again, this court and the Supreme Court of Canada have made it clear that heroin is the most pernicious of the hard drugs - it is the most addictive, the most destructive and the most dangerous. Heroin trafficking has been described as a "despicable" crime and one that "tears at the very fabric of our society": see Pushpanathan v. Canada, [1998] 1 S.C.R. 982 at para. 79; R. v. Nguyen, 92 O.A.C. 200 at para. 9; R. v. Sherman, [2001] O.J. No. 5008 (S.C.) at para. 18; aff'd , 183 O.A.C. 198; and R. v. Osei, [2002] O.J. No. 5601 (S.C.) at para. 7, aff'd .

While we recognize that sentencing is not an exact science and that trial judges must retain the necessary flexibility to do justice in individual cases, as a general rule, absent exceptional or extenuating circumstances, first offender couriers who import large amounts of high grade heroin into Canada for personal gain should expect to receive sentences consistent with the twelve to seventeen year range suggested by the Crown. To be clear, when we refer to "large amounts" of high grade heroin, we are not referring solely to multiple kilograms; as authorities from this court and other courts show, lesser amounts will often attract similar, if slightly lower, penalties (see para. 20 below).

That range of sentence may seem harsh to some, but it is necessary to protect our country and our citizens from the ravages of heroin. Those who would engage in its importation must know that they will pay a heavy price.

[55] The prosecution, in the case before me, has provided a number of comparative heroin cases. In R. v. Ifejika, [2013] O.J. No. 3913 (C.A.), a seven years sentence for importing 500 grams of heroin was upheld. An eight year sentence for importing heroin consecutive to a four year sentence for possession for the purpose of trafficking withstood a sentence appeal in R. v. Akintunde, [2013] O.J. No. 6524 (S.C.J.), aff'd [2015] O.J. 4614 (C.A.)

[56] In R. v. Thorn, [2017] O.J. No. 5021 (C.J.) Lynch J. was dealing with an individual who possessed a large quantity of fentanyl for the purpose of trafficking. In her submissions before me, the prosecutor highlighted a particularly emotive passage in the judgment wherein the justice opined:

Someone who goes out with a knife or a gun or a club, or whatever it might be and commits an assault with a weapon and causes significant harm is causing harm to one individual. While I do not think that we ought to have a chart that simply goes up by the number of individuals that have been harmed, I think the courts are entitled to look at the potential harm, as well as the actual harm that is being caused. That individual with a weapon is likely to hurt one person. Someone who is trafficking in this quantity of these particular drugs can cause harm, including death, to dozens, if not hundreds of individuals. But it is very rarely ever traced back to a particular dealer. Yet we see in the news, in the media repeatedly, the number of individuals that are, in fact, harmed, and in particular by fentanyl, or killed.

We have reached a point where we now have police officers and paramedics carrying around needles so that they can inject those that have suffered the consequences. It is not to make them feel better. It is to bring them back to life, because these drugs are killing individuals. And I think that is why we need to deal as significantly as we are with possession for the purpose of trafficking and trafficking in drugs such as fentanyl. That is the distinction, in my mind, between the drug offences and the other offences that we deal with on a daily basis in our courts,- the harm and the potential harm that is actually being caused. And in terms of that cost benefit analysis, that is something that individuals involved in the trade need to understand; that there will be a significant cost.

[57] Ms. Thorn was 20 years old. She was not driven by addiction but greed. She received a sentence of four and a half years on top of the equivalent of 400 days of pre-sentence custody.

[58] In R. v. Baks, 2015 ONCA 560, [2015] O.J. No. 3996 (C.A.), the Court of Appeal reduced Ms. Baks' sentence for twenty counts of trafficking in fentanyl to 5 years concurrent on each from a nine year sentence imposed at trial. The Court of Appeal characterized this as a serious offence involving a large amount of a very dangerous drug in which the appellant played a key role in a somewhat sophisticated scheme that betrayed the trust of her employer, a doctor, and that a nine year sentence would have been appropriate but for the appellant's young age, her lack of any prior involvement in the criminal justice system, excellent rehabilitative potential, and the fact that she acted under pressure from higher ups in the scheme with whom she had a romantic relationship and, significantly, fully cooperated with the police and testified against two other higher-ups. I note that one of the individuals involved in the scheme with Ms. Baks was Yancy Loor.

[59] In R. v. Loor, 2017 ONCA 696, [2017] O.J. No. 4628 (C.A.) the Court of Appeal got to pronounce on a sentence for a "low level member of a small fentanyl drug trafficking ring" who used forged prescriptions to obtain 15 patches of fentanyl on three occasions from a pharmacy in Barrie. Dawson J. imposed a six year sentence for the trafficking charges. The Court wrote at para 33: "Unless used for therapeutic purposes, under proper medical supervision, fentanyl is a highly dangerous drug. Its widespread abuse, though recent, has quickly become entrenched in our country. Every day in our communities, fentanyl abuse claims the lives of Canadians." Although a low-level member of the ring, his role was necessary for the successful operation of the scheme. He had a prior criminal record, including a conviction for trafficking, and trafficked 45 patches of the highest strength of a highly dangerous drug. Against that he had a gap in his record of nearly five years, did not profit much and had strong family support. The Court, nonetheless, found the sentence to be fit and opined that while too early to establish a range of sentence, "it is fair to say that generally, offenders – even first offenders - who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences." (Para 50)

[60] In R. v. Leite, [2018] O.J. No. 1190 (C.J.) Cooper J. had found Mr. Leite guilty of two counts each of possession for the purpose of cocaine, methamphetamine and fentanyl along with possession of Canadian currency obtained by crime. He was guided by Sopinka J.'s review of cases in R. v. Vezina, 2017 ONCJ 775, [2017] O.J. No. 6027 (C.J.) including, at para 41, Epstein J.'s decision in R. v. Shevalier and Clark (March 16, 2017 -- OCJ Kitchener) sentencing Mr. Shevalier to 8 years and Ms. Clark to 4 years following a trial where they were both convicted of possession for the purpose of trafficking of 28.13 grams of fentanyl and other drugs. Mr. Shevalier had a significant related record and Ms. Clark had no record. Sopinka J. noted, at para 43, that Epstein J. considered the evidence that both accused were addicted to the substances they trafficked. He commented, however, that "the mitigation usually attributed to addiction in sentencing is not so prominent a feature here. While it is clear that these two accused were immersed in the drug sub culture and were addicts themselves, they were not simply supporting their habits but were driven by profit and were engaged in something significantly larger than a street-sale operation". Sopinka J. wrote, "in my view these comments are equally applicable to Mr. Vezina given the evidence about his involvement in the drug trade and the quantities of drugs he possessed upon his arrest and pursuant to the search of his home."

[61] Other Kitchener cases referred to included R. v. Boardman, (July 7, 2016 OCJ Kitchener) who pled guilty to possession for the purpose of trafficking in fentanyl. He had 19.78 grams of fentanyl, 84.51 grams of cocaine and 27.99 grams of methamphetamine and was a mid-level addict dealer with an extensive and related record. He received a 6 year sentence (para 50). R. v. Holtz, (June 23, 2016 OCJ Kitchener) involved 14.56 grams of powdered fentanyl and 26.09 grams of methamphetamine. The accused pled guilty and was an addict with an extensive but unrelated record. The sentence imposed was 5 years imprisonment (para 51).

[62] In support of a four year sentence, the defence referred me to R. v. Klammer, [2017] O.J. No. 2605 (C.A.) in which a 20 month sentence for a first time offender who trafficked in six 100 microgram fentanyl patches was upheld.

[63] In R. v. Lu, [2016] O.J. No. 3322 (C.A.), the Court upheld a two and a half year sentence for possession of four boxes of fentanyl patches containing five 100-microgram patches for the purpose of trafficking despite noting at para 9 that fentanyl is one of the most highly addictive and dangerous drugs and general deterrence and denunciation are paramount factors.

[64] In R. v. Forget, [2016] O.J. No. 3504 (C.J.) MacDonald J. was dealing with possession of fentanyl with a street value of $105,000 driven by profit not addiction and imposed a three year sentence.

[65] R. v. Medeiros-Sousa, [2014] O.J. No. 4515 (C.J.) found the accused sentenced to 30 months imprisonment for her role as a pharmacy assistant in stealing a significant amount of drugs including oxycodone, hydromorphone and fentanyl patches from her employer and providing them to a co-accused. She had no prior record but was addicted to prescription drugs; something she started abusing after the death of an uncle who had sexually assaulted her. She pled guilty, apologized to her employer, sought counselling to address her oxycodone addiction and had been a highly regarded member of her church and community.

[66] The thread that emerges from these cases is that the fentanyl crisis justifies and requires a significant sentence to make it abundantly clear to those who are engaged in the illegal distribution of this drug that they will face significant sentences. What these cases illustrate is the seriousness with which offences involving fentanyl are, and need to be, treated. It was not lost on Mr. Mastromatteo how dangerous the drugs he supplied were and yet he continued to do so. He is also not wrong when he says if not for his arrest, he too could have overdosed and died. He was not only reckless with his own life, but also the lives of others.

Sentencing Decision

[67] Anthony Mastromatteo has accepted responsibility and pled guilty. He is a youthful offender, now has positive family support, insight, and good prospects for rehabilitation. Against that however, is the fact that he was engaged in a conspiracy to import fentanyl and fentanyl derivatives while subject to a conditional sentence order for a drug offence. His mail order purchases, using his own name and address, were unsophisticated but brazen, and repeated. He knew the dangers of fentanyl use to addicts but that had no effect on his drug-related activities. He was engaged in a commercial enterprise for profit and must accept a high degree of moral blameworthiness. For all those reasons, it is my view that denunciation and deterrence override a rehabilitative sentence. A term of imprisonment that does so, but without being crushing, that takes into account all of Mr. Mastromatteo's circumstances and the circumstances of his offending for conspiracy to import fentanyl, including its derivatives, is one of 7 years and 6 months. His sentence for possession of MDEA for the purpose of trafficking will be six months imprisonment to be served concurrently and the sentence for breach of probation will be a concurrent term of imprisonment of one month. There will also be a DNA order and a s.109 order for 10 years.

[68] In coming to that number, I have considered the defence submission that Mr. Mastromatteo should receive credit for his being under stringent bail conditions of judicial interim release which the defence characterized as essentially "house arrest". As was put to me, whatever exceptions to house arrest his bail allowed, his sister and brother-in-law had him remain in the house as he was someone who was "profoundly entrenched in the drug world". Being on bail has given him the opportunity to pursue mental health intervention, continue with his methadone program and attend weekly Narcotics Anonymous meetings to demonstrate his prospects for rehabilitation. For that he should be commended. Had he not done so, Mr. Mastromatteo would have been looking at a considerably longer sentence. It would have been easy for him to be overwhelmed by the prospects of a lengthy period of imprisonment, but he wasn't. He embraced his family, and took rehabilitative steps, and his future will hopefully be one that takes him down a considerably different path.

Released: June 20, 2018

Signed: Justice J. Bliss