Court Information

Ontario Court of Justice

Date: 2019-08-13

Court File No.: Kitchener Info # 18-8489

Parties

Between:

Her Majesty the Queen

— And —

Matthew Fuller

Before the Court

Justice: Scott Latimer

Heard on: January 24, 25, April 29, September 4, 2019

Reasons for Sentence released: September 13, 2019

Counsel

For the Crown: Ruth McGuirl & Amanda Hauk

For Mr. Fuller: Stephen Proudlove & Sarah Cheshire

Reasons for Sentence

[1] Introduction

Matthew Fuller has been charged and prosecuted as a prominent member of a drug trafficking ring in Waterloo Region. The Crown alleges that the evidence discloses Mr. Fuller to be a directing mind of a conspiracy focused on the distribution of fentanyl, cocaine and methamphetamine.

[2] Guilty Plea and Sentencing Hearing

Mr. Fuller's preliminary inquiry began in January 2019. On the second day, he pleaded guilty to conspiring to traffic fentanyl and methamphetamine over the course of two weeks in October 2017. A sentence hearing followed where much of the evidence was admitted and the litigation focused on specific aspects of the Crown's theory, such as the amount of narcotic possessed and Mr. Fuller's role in the illegal enterprise. I received additional information about Mr. Fuller as a person, as well as thorough and helpful submissions from both sides. The Crown has recommended a total sentence of sixteen years incarceration, while the defence advocated for a lower sentence in the range of ten to twelve years. These submissions, both of which involve lengthy periods of incarceration, capture the enormity of Mr. Fuller's conduct, and the significant sentences that can and do follow from fentanyl trafficking. Mr. Fuller was pushing poison for profit in a region beset by fentanyl abuse and its well-known life-threatening consequences. This is conduct that must attract a substantial sentence.

[3] Commendation of Counsel

I wish to state at the outset of these reasons that all counsel in this case deserve considerable credit for their approach to this proceeding. The evidence was synthesized, presented in a clear and digestible manner, and the litigation focused on aspects that were truly in dispute. This approach was important from the defence perspective, as the case against Mr. Fuller can properly be called overwhelming. The manner adopted by defence counsel – focusing on specific areas where the evidence was less clear cut – was in Mr. Fuller's interest and, more broadly, the interest of the administration of justice. A significant amount of court time has been saved, both in this court and, had the matter proceeded to trial, in the Superior Court of Justice. As will be addressed later, this is a meaningful mitigating feature on sentence. I am grateful to all counsel for the level of advocacy they brought to these proceedings.

[4] Structure of Reasons

I have structured these reasons by first addressing the proven facts relating to the offence, then those relating to Mr. Fuller the offender. I will then review the impact of fentanyl generally in our community, before considering the relevant principles and related authorities in this area. I will then conduct my analysis and provide my conclusion on sentence.

I. FACTS

(1) The Offences

[5] Project Titus Investigation

Waterloo Regional Police Service began a drug investigation in May 2017, aimed at the distribution of fentanyl, cocaine and methamphetamine across southwestern Ontario. This was a large investigation, which the police and prosecution have titled "Project Titus". Matthew Fuller was a target at the outset of this investigation.

[6] Wiretap Authorization and Evidence

Over the summer months, judicial authorizations were obtained and evidence gathered. That evidence ultimately provided a basis for the issuance of a wiretap authorization on October 13, 2017. Communications on various phones relating to Fuller and his associates were intercepted by the police. A great number of these calls have been presented to me during the preliminary inquiry/sentencing process. I have reviewed these calls several times, both in and out of court; they credibly portray an ongoing drug enterprise in which Fuller plays a leadership role. Discussions of drug quantity and quality are regularly discussed. The wiretaps also depict Ashley Broderick, a co-accused, as another key member of the conspiracy.

[7] Incriminating Communications

Almost immediately after the wiretap went up in this case, incriminating conversations were captured involving multiple members of this drug enterprise. Mr. Fuller, for example, is repeatedly recorded discussing the purchase, sale and distribution of a considerable quantity of fentanyl, as well as methamphetamine and cocaine. He was particularly concerned about the quality of the fentanyl he had purchased from his suppliers and was actively seeking to obtain additional product elsewhere.

[8] Expert Evidence on Coded Language

Some of these calls were played during the evidentiary portion of this proceeding, others provided as exhibits. Additionally, I have the benefit of the opinion evidence of Inspector Craig Hudson, who has offered, inter alia, an interpretation of some of the coded language contained in these calls. His opinion is founded on experience gained during a professional career spent investigating narcotics-based criminality. He was qualified on consent, and his evidence assists me in understanding many of the conversations adduced in this case. I accept his evidence, as I find it fits comfortably within the broader conversations captured on the wiretap. For example, Inspector Hudson states that fentanyl is commonly referred to, in drug parlance, as "fent", "fet", "fetty". In this case, examples of such usage abound. Mr. Fuller regularly used these terms in conversations that are manifestly about drugs. The Crown has pointed out many examples in the summary they provided during submissions. In the circumstances, two instances will suffice: On one occasion, Fuller refers to making "crazy paper with the mob so I won't be doing much other than raw fent, bro". On another, he stated that he has "a few new links for the fetty so I'm just waiting on getting cash together so I can play around and get everything going again".

[9] Interpretation of "Fent"

"Fent" is easily interpreted as "fentanyl", in part because fent is of course the first syllable of fentanyl. There is also the notable fact that, in a recorded conversation on October 24 to which Fuller is a party, the words "fent" and "fentanyl" are used interchangeably. In the circumstances I have no hesitation in accepting Hudson's evidence regarding the coded language for fentanyl.

[10] Coded Terms for Other Drugs

Fuller and his co-conspirators also regularly used coded terms for cocaine ("Tony") and methamphetamine ("Tina"). I accept Inspector Hudson's interpretation of these terms, again because that interpretation makes sense in the broader context of these conversations. Additionally, I note that the debt lists seized during the warranted searches refer to money owed for pants (a local term for fentanyl), tony and tina. These debt lists are plainly related to drugs, given the context in which they were located; i.e. surrounded by drugs and drug paraphernalia.

[11] Interpretation of "Key" and "Plate"

My acceptance of Inspector Hudson's opinion evidence extends to his interpretation of words like "key" and "plate" as meaning "kilogram". Again, these interpretations fit comfortably in the context of their usage, and I cannot conceive of any alternative meaning for these words that would make sense. I infer, having considered the whole of the evidence, that when Fuller uses words like "key" and "plate" while discussing drugs, the unit of measurement he is referring to is a kilogram. "Key" is almost self-evident, as it is the first syllable of "kilogram".

[12] The "Three Plates" of Fentanyl

"Plate" is an important word in this proceeding, as one of the disputed facts is the total amount of fentanyl possessed in this drug conspiracy. The Crown submits that, when Fuller indicated on October 13 that he has "three fucking plates" of substandard product, he was talking about fentanyl. I accept that interpretation for the following reasons:

(1) It is plain to me, having listened to this call (session 33) and one that occurs less than an hour later (session 65), that Fuller is troubled by having received poor quality fentanyl, which he interchangeably describes as "fetty" and "fent".

(2) The "plates" statement is made during the same conversation where Fuller earlier referred to taking "a sample right out of the key", which I readily accept means kilogram. He is unhappy with the drug's quality and had already talked his supplier into taking back "almost a plate" of "fent". Contrary to the defence submission, it is illogical that "plate" would mean "pound" in the context of this conversation.

(3) I accept Inspector Hudson's evidence regarding the approximate cost of three kilograms of fentanyl, which matches Fuller's statement, in the same conversation, that the bad fentanyl cost him "hundreds of thousands" of dollars, and that it has "cripple[d his] business".

(4) During the takedown on October 26, approximately 1 ½ kilograms of fentanyl were seized. The wiretapped conversations between October 13 and 26 depict a prosperous drug enterprise – the drugs seized on October 26th were not the entirety of what was possessed during this thirteen-day period.

(5) During the warranted seizures, a sealed package of exactly one kilogram of fentanyl was found in an address associated with Ashley Broderick, Fuller's co-accused who regularly had possession of his fentanyl supply. This package, as can be seen in the photographic exhibit, is of a shape and appearance that easily could be described as a "plate".

[13] Search Warrants and Seizures

On October 26, a variety of search warrants were executed, and the principal targets were arrested by the authorities. A significant quantity of drugs, cash and related paraphernalia was found in locations associated to both Fuller and Broderick. In total, the police seized over 1 ½ kilograms of fentanyl, almost ½ kilogram of methamphetamine, 5.8 grams of cocaine and over fifteen thousand dollars of Canadian currency.

[14] Findings on Disputed Facts

As I indicated at the outset of these reasons, the parties substantially agree on much in this case. The fact that Matthew Fuller was involved, at a high level, in an active drug enterprise involving the purchase and sale of considerable amounts of fentanyl, cocaine and methamphetamine is not in dispute. What is in dispute is the amount of fentanyl he possessed, and whether he can properly be described as the "directing mind" of this conspiracy. For the reasons stated above, I accept that, during the currency of this conspiracy, Fuller was in possession of approximately three kilograms of fentanyl, one of which he returned to his supplier because it was of poor quality. I make that finding beyond a reasonable doubt based on the entire record before me. I intend to address the "directing mind" issue later in these reasons.

(2) The Offender

[15] Background and Personal History

Matthew Fuller is thirty-five years old and presents, both in his pre-sentence report ("PSR") and in court, as intelligent and remorseful for his recent conduct. He was raised by his mother in Hanover, Ontario with five siblings. He describes a positive but somewhat solitary childhood, followed by "hectic" teenage years complicated by a cocaine addiction. He described his adulthood to the PSR writer succinctly as, "stupidity", which likely refers to conduct associated with his prior criminal convictions for drug trafficking.

[16] Prior Criminal Convictions

In 2013, Mr. Fuller received a nine-month sentence for possessing 58.7 grams of cocaine in a bathroom in a Crabby Joe's restaurant in Stratford. Two years later, in Kitchener, he was sentenced again for possession for the purpose of trafficking, but this time as part of a more advanced scheme involving cocaine and methamphetamine with a street value of over $48,000. Justice Flynn, in accepting a joint submission for a total sentence of twenty-six months, noted that this conduct amounted to "high end" criminality. It was accepted, however, that Mr. Fuller was not the "prime actor" in the criminal enterprise. Flynn J. cautioned both Mr. Fuller and his brother – a jointly charged co-accused – about the perilous path they were on, describing the facts before him as "a portent of a dangerous pair of individuals".

[17] Education and Employment

While Mr. Fuller's formal education ended after grade eight, he completed additional schooling in 2015 while incarcerated. He plans to undertake college-level schooling in the penitentiary system once he is sentenced for his current charges. He advised the PSR writer that he has never had a legitimate job because, since his early twenties, the drug trade funded all aspects of his lifestyle. This statement, and others, demonstrate the openness with which Mr. Fuller engaged the PSR writer about his background, which is much to his credit, as it suggests someone capable of participating in, and benefiting from, rehabilitative programming in the future.

[18] Aboriginal Heritage Investigation

During this sentence hearing, an adjournment took place to investigate Mr. Fuller's family history and indigenous heritage. I received a helpful letter from Aboriginal Legal Services following such an inquiry. I accept this letter, and its contents, as evidence before me on this proceeding. Mr. Fuller's mother, Elizabeth, advised that she believes her paternal father possessed Aboriginal heritage, and she explained the area of Ontario in which his family resided. Ms Fuller was adopted by a non-indigenous family at age six and did not meet her biological father until she was eighteen. Aboriginal Legal Services were unable to confirm Ms Fuller's information through their investigation, but explicitly stated in their letter that this does not mean the information was inaccurate.

[19] Aboriginal Status and Life Circumstances

Ms Fuller advised that she has never investigated her personal aboriginal ancestry, and that her son has only recently begun asking questions about it, while incarcerated. Neither Aboriginal Legal Services, nor counsel, were able to advise how being aboriginal – if, indeed, Mr. Fuller is – has affected his life circumstances.

[20] Religious Exploration

In speaking to the PSR writer, Mr. Fuller spoke at length about religion. He believes his lack of religious observance has been a negative factor in his life, and he has made considerable efforts recently, while incarcerated, to educate himself on the subject. The PSR reads that he "converted to the Muslim religion while incarcerated" but was also "consider[ing] converting to Christianity". The proof of his exploration was demonstrated in court when counsel, during submissions, brandished a significant stack of institutional documents that record how often Mr. Fuller attended Bible study and other like resources while in pre-trial custody.

[21] Personal Growth and Rehabilitation

I interpret Mr. Fuller's questions about his aboriginal heritage as I do his religious inquiries – as a mechanism to learn more about himself and grow as a person. These are positive first steps for a man who has, by his own admission, lived a life of crime his entire adulthood. I intend to address what implications this has on sentence later in these reasons.

[22] Statement in Court

Mr. Fuller touched on religion and his Bible study efforts when it was his opportunity to speak during sentencing. He also apologized for taking up valuable court time, and for his "reckless immature behaviour". He acknowledged that his conduct was driven by financial greed and spoke of being disgusted with himself when he watched television reporting about the fentanyl epidemic and the associated cost to human life. He has voluntarily entered protective custody to escape bad influences and has considered what steps he can take in the penitentiary to prepare himself for the next stage of his life. He wants to explore joining the military, and is looking forward to future work opportunities, whether volunteer or otherwise.

(3) Fentanyl's Ongoing Impact on Waterloo Region

[23] Nature and Potency of Fentanyl

I received expert evidence from Dr. Karen Woodall, a forensic scientist, regarding the nature of fentanyl and its impact on the human body. Fentanyl is a synthetic opioid analgesic used – in a clinical setting – for pain management. It is remarkably potent: more than 100 times more potent than morphine. In hospitals, it is administered orally, by injection, or via a transdermal patch. It is a drug that has become widely abused. Illicit uses include injection, snorting, smoking and chewing patches.

[24] Health Risks of Illicit Fentanyl

The ease with which fentanyl can be absorbed into the skin creates health risks when illicit fentanyl is handled. Dr. Woodall's report recommends that "gloves and masks should be worn due to the risk of toxic effects". The intercepted communications demonstrate that Mr. Fuller was aware of these risks, as he told Broderick, during a conversation on October 18 (session 220) that "you can't even mix real work without a mask the dust will kill you".

[25] Potency and Abuse Potential

Fentanyl's effects include pain suppression, euphoria and sedation. It is this euphoric feeling that has caused fentanyl to be so widely abused. It is twenty times more potent than heroin. Inspector Hudson's report describes fentanyl largely replacing heroin in certain segments of the "heroin and opioid user/abuser population". He writes:

"...In some instances, drug users have been found to favour fentanyl over heroin, and as such it is sometimes intentionally trafficked as fentanyl. The main difference in the two drugs is the heightened potency in fentanyl which is the cause for the current health crisis in fentanyl related overdose and deaths reported in Canada and United States. Dosage range will depend on the tolerance of the user as well as the potency of the fentanyl itself. Dosage range from .01 grams to .05 grams are reported in recent overdoses and deaths involving fentanyl."

Dr. Woodall's report is similarly bleak:

"...The higher the dose of "fentanyl", the greater the physiological effects would be and responses such as shallow breathing and decreased heart rate can occur. Toxicity can easily result from opioid use sometimes with fatal consequences especially in individuals who are not prescribed opioids and may be using them inappropriately. A lethal dose of any opioid cannot be provided because it depends on multiple factors including tolerance and route of administration. Deaths due to opioid use have increased in Ontario over recent years with fentanyl being the most frequently detected opioid in death investigations."

[26] Fentanyl's Impact on Waterloo Region

The Crown has also adduced a report entitled, "The impact on fentanyl in Waterloo Region". The rise in fentanyl abuse in our community has corresponded with a rise in opioid related overdose calls requiring medical intervention. This is despite greater intervention attempts, such as the carrying of Naloxone – a medication that can temporarily reverse the effects of an opioid overdose – by Waterloo Region peace officers. Fentanyl's local dominance is further demonstrated by the fact that it has now supplanted heroin as the most common opioid drug exhibit sent to Health Canada from our region.

[27] Statistical Evidence of Fentanyl Deaths

Statistical information maintained by Public Health Ontario also depicts a startling rise in the presence of fentanyl in opioid-related death in this province.

[28] Conclusions on Fentanyl's Lethality

I accept the entirety of this information as accurate and reliable, and it causes me to draw two conclusions: first, fentanyl is a highly addictive, lethal drug that has taken root in our community, and its lethality would have been well-known in October 2017. Second, the market for this drug has made trafficking in it lucrative for individuals like Matthew Fuller. Saturating an addict market with a lethal drug creates obvious consequences, like those documented in the analyst's report – a stark increase in overdoses and fatalities, to say nothing of the pain visited upon friends and families of the ill and deceased. As my colleague Justice John Lynch wrote in May 2017, "the drugs with which we were familiar a few years ago and that we called extremely dangerous and potential killers are now somehow eclipsed by fentanyl.... [I]t is that serious a drug. It is that serious a concern in the community".

II. LAW – RELATED SENTENCING PRECEDENTS

[29] The Parity Principle

Part XXIII of the Criminal Code provides guidance to judges regarding the proper legal principles and considerations to apply during sentencing. For example, "the parity principle", codified in section 718.2(b) of the Code: "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances". For this reason, it is helpful to examine other sentences imposed for individuals who have trafficked in large quantities of drugs, particularly fentanyl and methamphetamine.

[30] R. v. Smith – Fentanyl as a Scourge

Canadian courts have recently begun to grapple with the appropriate sentences for fentanyl trafficking. At the appellate level, in 2017, the British Columbia Court of Appeal called fentanyl "a scourge", posing "intolerable risks of accidental overdosing because it is so much more powerful than morphine.... often street drugs have fentanyl cut into them, and it is practically impossible for drug users to recognize whether the drugs they buy contain fentanyl": R. v. Smith, 2017 BCCA 112, at para. 48.

[31] R. v. Loor – Significant Fentanyl Sentences

Our Court of Appeal addressed fentanyl trafficking in 2017, in Loor, a case involving forty-five patches obtained via a forged prescription. These patches were trafficked by other individuals, and the court described Loor as a "low-level member of a small drug trafficking ring": R. v. Loor, 2017 ONCA 696, at para. 1. He was thirty-nine years old with a prior conviction for trafficking. He received a six-year sentence, which was upheld on appeal. Justice Laskin, writing for the panel, ended the judgment with the following statement:

"Few fentanyl trafficking cases have reached this court. It is thus perhaps too early in our jurisprudence to establish a range. But I think it fair to say that generally, offenders – even first offenders – who traffic significant amounts of fentanyl should expect to receive significant penitentiary sentences": para. 50.

[32] R. v. Olvedi – Importation of Pure Fentanyl

In R. v. Olvedi, 2018 ONSC 6330, Justice Peterson sentenced an individual convicted after trial of importing, and possessing, for the purpose of trafficking, ½ kilogram of 100% pure fentanyl citrate. Mr. Olvedi received the fentanyl via international courier and was subsequently arrested. He advised that he was offered a quantity of money to receive and re-deliver the package. Peterson J. convicted him on the basis that he was wilfully blind regarding the package's contents.

A police officer testified this substance would have to be diluted before it could become saleable fentanyl, with each gram of fentanyl citrate mixed with 100 grams of a cutting agent. The estimated street value of the product was between $14 and $20 million dollars. Mr. Olvedi was thirty-three years old first offender. He had a post-secondary education and came from a supportive family. He received a fifteen-year sentence for importation, and a concurrent twelve-year sentence for possession for the purpose. The quantity and purity of the drug were treated as significant aggravating features. His cooperation with the authorities and remorse were mitigating, as was the fact that Peterson J. was satisfied, on a balance of probabilities, that Olvedi only agreed to accept the courier package after being threatened with death. He was a young man with excellent rehabilitative potential.

[33] R. v. Yu – Fentanyl as the Deadliest Drug

Another relevant judgment is R. v. Yu, (21 September 2017) (Ontario S.C.J.), an unreported decision of Justice McMahon of the Superior Court of Justice. A significant quantity of drugs was seized from Mr. Yu's residence: 232 grams of fentanyl, 620 grams of heroin, 983 grams of cocaine, 250 grams of methamphetamine, 1149 grams of MDMA, 1262 grams of ketamine, and 3557 grams of marijuana. Mr. Yu pleaded guilty to trafficking in association with a criminal organization, conspiracy to traffic in a controlled substance, and possession of many of the above narcotics for the purpose of trafficking.

Mr. Yu was a young man with no prior record who was involved in a sophisticated drug trafficking operation. With regard to fentanyl, McMahon J. stated that "[f]entanyl is the most deadly, illicit drug available on the streets of this city at this time. Historically our courts have treated heroin as the most deadly drug. The fact that fentanyl is twenty times more powerful than heroin leads to the unfortunate but only conclusion that fentanyl is even more deadly than heroin, which is more deadly than cocaine": Yu, page 14. A total sentence of thirteen years custody was imposed.

[34] R. v. Shaheen – Pharmacist Trafficking Fentanyl Patches

In R. v. Shaheen, 2018 ONCJ 150, Justice Wadden imposed a fourteen-year sentence on a pharmacist who was convicted after trial of trafficking 5000 fentanyl patches over a two-year period. Wadden J. considered trafficking a substantial breach of trust for a pharmacist, who owned three pharmacies, and therefore had the ability to "control, and cover up, the flow of fentanyl into his business": para. 29-30. The volume of drugs and the time period the trafficking occurred were also aggravating features. It was mitigating that he was a first offender and otherwise of good character.

[35] R. v. Imeson & Murphy – Local Carfentanil and Fentanyl Case

In R. v. Imeson & Murphy, (10 April 2019), (Ontario C.J.), a local case, Justice McKay sentenced two individuals who pleaded guilty to possession of fentanyl, carfentanil and methamphetamine for the purpose of trafficking. They jointly possessed 434 grams of carfentanil (an even more potent opioid than fentanyl), 176 grams of fentanyl, one kilogram of methamphetamine, and more than $94,000 in Canadian currency. McKay J. found that their criminality was "motivated by greed and a thirst for profit": para. 29. He imposed a twelve-year sentence for possessing carfentanil for the purpose of trafficking, with concurrent sentences of ten and six years for fentanyl and methamphetamine, respectively.

[36] R. v. Vezina – Local Fentanyl and Firearm Case

R. v. Vezina, (10 November 2017), (Ontario C.J.) is another local case. Justice Sopinka sentenced Mr. Vezina to a twelve-year sentence for possessing fentanyl and methamphetamine for the purpose of trafficking, as well as the possession of a loaded handgun. Eleven years were attributed to the fentanyl offence (111.9 grams), with five years concurrent for methamphetamine (372.14 grams), and one year consecutive for the firearm.

[37] R. v. Broderick – Co-Accused's Sentence

Lastly, there is R. v. Broderick, [2018] O.J. No. 6278 (C.J.). Ms. Broderick was Mr. Fuller's co-accused. She pleaded guilty to conspiracy to traffic fentanyl before a preliminary inquiry was set and received a thirteen-year sentence following a joint submission. The admitted facts included Mr. Fuller - her co-conspirator - possessing three kilograms of poor quality fentanyl.

[38] Fentanyl Surpasses Heroin in Judicial Hierarchy

It is clear to me, from the above review, that fentanyl has surpassed heroin in the judicial hierarchy of dangerous, deadly narcotics. In such a circumstance, I find it useful to examine how the Court of Appeal has previously treated heroin trafficking.

[39] R. v. Phu – Heroin Trafficking Precedent

In R. v. Phu, [1999] O.J. No. 5733 (S.C.J.), aff'd [2001] O.J. No. 5534 (C.A.), Justice Dambrot imposed a fourteen-year jail sentence for a first offender who pleaded guilty to trafficking in heroin. He indicated that he would have imposed sixteen years, had the Crown not capped its recommendation at fourteen years. Mr. Phu was found to be in the "upper echelon" of a complicated international drug trafficking enterprise. Dambrot J. adopted the following language in imposing fourteen years: "This offence is amongst the most sinister that the courts have to deal with. The damage done to the community by drugs like heroin is irreparable. The rewards are very high for those criminals who succeed": para. 58-9.

[40] R. v. Falahatchian – Heroin Conspiracy

In R. v. Falahatchian, [1995] O.J. No. 1896 (C.A.), the Court of Appeal upheld sentences of eleven years, one month for conspiracy to traffic heroin, and heroin trafficking imposed after trial. The quantum of heroin involved was 733 grams, and the appellant was a first offender. The Court found the motivation for the crime was solely profit. The Court wrote, at paragraph 62, that "we are dealing here with a conspiracy and substantive offences involving trafficking in a large quantity of one of the most addictive of drugs, heroin. We have consistently held that heavy sentences are called for with respect to all parties involved in the distribution of hard drugs.... In our view, the sentences meted out by the trial judge were on the lower end of an appropriate scale for an operation of this magnitude".

[41] R. v. Bains – One Kilogram of Heroin

Finally, in R. v. Bains, 2015 ONCA 677, the Court of Appeal dismissed an appeal from a nine-year sentence arising out of possession, for the purpose of trafficking, of one kilogram of heroin. Neither Mr. Bains nor his co-accused had a prior criminal record. Justice Watt, writing for the panel, noted in dismissing the appeal prior appellate authority setting the range for one kilogram of heroin at nine to twelve years custody: see para. 192.

Watt J.A. also identified the proper sentencing considerations at paragraph 193:

"The trial judge identified and applied the predominant sentencing objectives of deterrence and denunciation. He took into account the unblemished antecedents of the appellants, their family support and consistent employment history. But they were also found in possession of a substantial amount of a highly addictive drug. It is a reasonable inference that their purpose was financial gain. Nothing more. Nothing less. For those so inclined, the price upon conviction must be steep"

[42] Methamphetamine as a Potent Drug

I appreciate that my predominant focus in these reasons has been on the fentanyl offence. I have not, however, lost sight of the fact that Mr. Fuller has also pleaded guilty to conspiring to traffic methamphetamine, and that 468.1 grams of that substance were seized during the investigation. I have reviewed the authorities provided to me relating to methamphetamine. I accept that it is a potent, highly addictive drug. In R. v. Ho, [2011] O.J. No. 6672 (S.C.J.) – a decision I found helpful in this area – Justice Molloy referred to Methamphetamine as "becoming more and more prevalent in Ontario".

Molloy J. accepted findings in a government report that described methamphetamine as producing "a powerful psychological dependence. Its use is associated with episodes of violent behaviour, paranoia, anxiety, confusion and insomnia. Long term use has also been associated with psychotic behaviour including paranoia, auditory hallucinations, mood disturbances, and delusions. The paranoia may result in homicidal or suicidal thoughts. Psychotic symptoms may persist for months after the drug is discontinued": para. 31. She ultimately imposed, after trial, a four-year sentence for possession for the purpose for an offender she described as a "mid-level commercial dealer". Mr. Ho possessed 115.4 grams of methamphetamine, along with smaller amounts of ecstasy and ketamine.

III. ANALYSIS

[43] Sentencing Objectives

The Criminal Code and the Controlled Drugs & Substances Act both instruct that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society": s. 718 of the Code; s. 10(1) of the CDSA. Sentencing judges attempt to achieve this goal by imposing just sanctions on offenders that address one or more of the traditional sentencing principles contained in the Code. These include denunciation, general and specific deterrence, rehabilitation, making reparation to victims of crime, and promoting a sense of responsibility in offenders and an acknowledgment of the harm they have caused the community, and specific victims in our community: s. 718(a) – (f) of the Code.

[44] Fundamental Principle of Sentencing

Ultimately, the fundamental principle of sentencing is to impose a sanction that is proportionate to the gravity of the offence committed, and the degree of responsibility of the person who committed it: see s. 718.1. For the sentence I impose to be appropriate, it must be tailored to Mr. Fuller's circumstances, and the circumstances of the offences that he has committed.

[45] Aggravating and Mitigating Circumstances

Determining an appropriate sentence requires considering what aggravating or mitigating circumstances are present before me: s. 718.2(a). These circumstances include features of Mr. Fuller's background, features of the crimes he has committed, the timing of his guilty plea, and any other evidence I have received during this sentencing hearing. It would also include any legal direction, whether found in the Criminal Code (e.g. s. 718.2(a) of the Code, or s. 10(2) of the CDSA) or provided by the higher courts, regarding aspects of the case that require express focus. For example, my review of the above jurisprudence makes plain that deterrence and denunciation are the predominant sentencing principles in a conspiracy to traffic large quantities of fentanyl for profit. The same principle applies to trafficking in methamphetamine. Rehabilitation, while relevant, is a secondary consideration.

[46] Listing Aggravating and Mitigating Factors

Listing the applicable aggravating and mitigating factors assists me in evaluating this case properly and imposing a sentence that is just and appropriate. I note the following aggravating and mitigating features of this case:

Mitigating Factors

(1) Remorse and Guilty Plea

I accept that Mr. Fuller is remorseful for his conduct. His guilty plea is evidence of this fact, as was his statement to the court at the close of submissions. I accept he appreciates the enormity of his actions, and their impact on our community.

(2) Early Guilty Plea

Mr. Fuller's guilty plea is meaningful in the circumstances. While not quite as early as Ms. Broderick, there was still a long procedural road ahead, if Mr. Fuller wished to put the Crown to its burden of proving guilt. A plea on the second day of a focused preliminary inquiry, in a case like this, attracts significant mitigation. I note in Yu, Justice McMahon considered circumstances where, following an unsuccessful Garofoli motion, the trial proceeded on an agreed statement of facts and an invitation to make a finding of guilt. McMahon J. stated that "[w]hile this is not a guilty plea, nor is it a true exhibition of remorse, nevertheless I find this to be a significant mitigating factor which entitles the accused to a significant reduction in what otherwise would be a fair sentence. So it is clear, they are not entitled to the same reduction as a guilty plea; nevertheless they are entitled to a significant reduction for the fair and appropriate manner in conducting this trial." Mr. Fuller has pleaded guilty at an even earlier opportunity, before his matter was transmitted to the Superior Court of Justice.

(3) Rehabilitative Potential

I accept that Mr. Fuller is an intelligent, thoughtful man who has the capacity to involve himself in rehabilitative programs and could contribute to society if he rids himself of his connection to the drug trade, as he indicates is his wish. As I said in paragraphs 19 - 21, I accept that his inquiries into his ancestry and religion are attempts to learn more about himself and grow as a person. These positive efforts are to his credit, and I hope he succeeds. Strictly speaking, however, from the perspective of s. 718.2(e) of the Code, I do not have enough information or evidence to conduct a meaningful Gladue analysis. I accord little weight to Mr. Fuller's possible aboriginal status in this sentencing: see R. v. E.C., 2019 ONCA 688, at para. 16.

Aggravating Factors

(4) Enormous Quantity of Fentanyl

The amount of fentanyl I find Mr. Fuller possessed – three kilograms – is enormous. I accept that this fentanyl was of poor quality, which resulted in Mr. Fuller returning one kilogram to his supplier. I do note, however, that some of the fentanyl was quite potent, as Mr. Fuller described during a phone conversation with a co-conspirator: "...all his people said it was fire it was this and that it was amazing..." It appears the product he received from a supplier was not mixed very well.

(5) Directing Mind and Principal Actor

I accept that Ms. Broderick had a subordinate role to Mr. Fuller in this criminal conspiracy. It is evident to me, having listened to the tone and content of the intercepted recordings that, while she certainly had her own agency in many respects, it was Mr. Fuller who was largely directing her actions. She was holding his product. He was telling her how much to sell it for, and who to give samples to. She was taking the greater risk by maintaining physical possession of the narcotic and selling it out of the hotel. She could not leave the hotel, at least on October 17, without Fuller's permission. While Ms. Broderick was a prominent member of this conspiracy, I am satisfied, beyond a reasonable doubt, that Mr. Fuller was the directing mind and principal actor. Ms. Broderick was acting at his behest, to make money for him. This is the only conclusion I can draw on the evidentiary record before me.

(6) Commercial Enterprise and Profit Motive

This was a commercial enterprise dealing with significant sums of money. I accept that Mr. Fuller, whatever his prior difficulties with addiction, was acting purely for profit, and cannot be characterized as anything approaching an addict trafficker. Selling drugs was how Mr. Fuller supported himself, in 2017 and indeed throughout his entire adult life. In October 2017, he was selling very dangerous drugs for profit. Full stop. His greed is evident on the wiretap, as he discusses making millions of dollars, "building up paper", and acting as a human money counter.

(7) Awareness of Fentanyl Risks

I am satisfied that Mr. Fuller was aware of the risks of fentanyl to his purchasers and the addict community. First, these risks were widely known as of October 2017. Second, Mr. Fuller was personally aware of the health risks, as he discussed precautions during phone conversations about mixing fentanyl. Third, and most importantly, there are discussions captured on the wiretap of users losing consciousness after sampling his product. Mr. Fuller sounded largely unconcerned about these individuals during these calls, focusing instead on the corresponding quality of his product and the likelihood that it would be sought after in the marketplace.

(8) Escalating Criminal History

Mr. Fuller has two prior related convictions for possessing cocaine and methamphetamine for the purpose of trafficking. His criminal actions have escalated from 2013 to 2015 to 2017, both in organizational sophistication and drug lethality. He has also moved from a participant in a conspiracy to its prime mover. Specific deterrence is a significant consideration in the circumstances.

(9) Community Impact of Fentanyl

I accept that fentanyl has had a substantial negative impact on Waterloo Region and the local community. I know this from the analyst's report adduced in evidence, as well as my own experience as a judge sitting in this jurisdiction over the past two years. For example, it is not an uncommon experience for the Crown to withdraw charges in court because an accused has died from a suspected fentanyl overdose. Indeed, one of the fourteen accused charged in this very investigation has since died from a fentanyl overdose. Like Justice Sopinka in Vezina, supra, and Justice Epstein, another local judge, in R. v. Shevalier & Clark, (16 March 2017), (Ontario C.J.), relying on R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 87-95, I intend to consider these troubling local trends when fashioning a fit sentence.

(10) Multiple Schedule I Drugs

The fact that multiple Schedule I drugs were being trafficked is an aggravating feature as well.

[47] Summary of Findings

In summary, a remorseful offender has pleaded guilty at an early opportunity to being, as I have found, the principal actor in a large drug conspiracy that involved multiple kilograms of fentanyl, as well as cocaine and methamphetamine. This is his third related sentencing for drug offences, but the first to prominently feature fentanyl, a drug that has caused a widespread health and public safety crisis. This crisis, and the resulting fatalities, demonstrate the gravity of Mr. Fuller's offending. His conduct has escalated with each passing conviction. I consider his moral blameworthiness extremely high, as he sold this poison for profit with clear insight into its potential lethality. His acknowledgment of responsibility is genuine, however, and has relieved the administration of justice of what would have likely been a lengthy criminal proceeding, both in this court and the Superior Court of Justice.

[48] Appropriate Sentence

Ultimately, I accept that thirteen years jail was an appropriate sentence for Ms. Broderick, given her circumstances. Mr. Fuller's sentence needs to be higher, given his greater culpability, degree of responsibility, and timing of plea. It is clear to me that the range of sentence involving fentanyl, once settled, is going to be higher than it is for heroin, given the enhanced inherent deadliness of the narcotic. Taking into consideration the sentences upheld in heroin cases (Phu, Falahatchian, Bains) by the Court of Appeal, and the trial judgments in Ontario involving lesser amounts of fentanyl, I have concluded that a sentence of fifteen years jail is required on the present facts. Mr. Fuller, while remorseful, is a recidivist drug offender who engineered a large-scale drug trafficking operation involving an enormous amount of fentanyl as well as other Schedule I narcotics. By selling fentanyl in the manner he did, he imperiled public safety solely for personal profit. Greed motivated his conduct and, as Justice Watt wrote in Bains, supra, for such offenders "the price upon conviction must be steep". Had this matter proceeded through trial, a sentence approaching twenty years would not have been unattainable.

[49] Denunciation and Deterrence

I am fully aware that the period of custody I am imposing is considerable. An objective of this sentencing is to condemn Mr. Fuller's conduct in as clear a manner as possible. I entirely adopt the comments of Justice Epstein in Shevalier & Clark, supra, addressing the necessary judicial response to fentanyl trafficking:

"The cases establish in the clearest terms that the proper response by the courts to this overwhelming problem must be rooted in denunciation and general deterrence. It must be made abundantly clear that Canadian society will not tolerate the illicit trafficking in such a dangerous substance. The proper response must be sentences of sufficient length to act as a deterrent to those who would seek to profit from the misery of others and to reflect the abhorrence of the Canadian community towards such conduct."

[50] Concurrent Sentence on Methamphetamine Count

I would impose a concurrent sentence of five years on count two, the methamphetamine offence. My decision to make it concurrent relies upon the totality principle, and the fact that I have considered the broader nature of Mr. Fuller's drug conspiracy in arriving at a fifteen-year sentence on count one.

IV. DISPOSITION

[51] Final Sentence

On count one, conspiracy to traffic fentanyl, I would credit Mr. Fuller with three years time served and impose an additional twelve years incarceration. On count two, five years concurrent. I would also order a s. 109 Code weapons prohibition for life, as well as a DNA databank order.

Released: September 13, 2019

Justice Scott Latimer

Footnotes

[1] October 18, session 220.

[2] October 13, session 65.

[3] October 24, session 2815.

[4] This finding is not strictly necessary for my factual conclusion that "plate" = "kilogram", but I have included it because this square, flat brick-like shape – containing exactly one kilogram of fentanyl – looks exactly like something that would be called a "plate".

[5] 1551.54 grams.

[6] 468.1 grams.

[7] Guilty plea transcripts, January 25, 2019, pp. 8-12.

[8] "The subject also openly discussed his lengthy history of profiting off the sale of drugs with this writer. The subject stated that he is well known across the province of Ontario in the drug subculture and has established a high number of enemies as a result of his involvement in the drug trade": Presentence report, Exhibit 13, p. 4.

[9] R. v. Thorn, [2017] O.J. No. 5021 (C.J.), at p. 2.

[10] 499.5 grams.

[11] October 13, session 33.

[12] October 17, session 184.

[13] The Crown filed a summary of calls during submissions in aid of proving certain facts, including this one. I have reviewed that summary and compared it against the broader evidentiary record of calls adduced in evidence. I accept the interpretation offered by the Crown and rely upon it in coming to this factual conclusion.

[14] October 18, session 220.

[15] October 19, session 1545.

[16] October 17, session 184.

[17] October 18, session 1427; October 19, session 1545.