Ontario Court of Justice

Date: 2015-03-06

Court File No.: Central East - Newmarket 4911-998-14-03447-00

Between:

Her Majesty the Queen

— and —

Mark Marchese

Before: Justice David S. Rose

Heard on: February 27, 2015

Reasons for Sentence released on: March 6, 2015

Counsel

Mr. Kirk Dickson Ms. Marina Guirguis ............................................................................. counsel for the Crown

Mr. Bernard Cugelman .......................................... counsel for the accused Mark Marchese

ROSE J.:

[1] Mr. Marchese pleaded guilty to Possession of a Controlled Substance under s. 4(1) of the Controlled Drugs and Substances Act (CDSA), namely four Fentanyl patches. Fentanyl is a Scheduled I Controlled Substance under the CDSA.

[2] Mr. Marchese admitted that on April 10, 2014 he was operating a motor vehicle south bound on Highway 400, and then west bound on Highway 407. Civilians saw some erratic driving, which caused the Ontario Provincial Police to respond. Mr. Marchese was pulled over on Highway 407 after a police officer saw his car drifting and swerving. Mr. Marchese was arrested for Impaired Driving, and incidental to that arrest four Fentanyl patches were found on him. A Drug Recognition Expert was called into the investigation, but after that and after supplying breath samples, no impaired driving or related charges were laid. Apparently he blew 0 into the Breathalyzer, and the Drug Recognition Expert could not develop reasonable and probable grounds to lay a charge. Mr. Cugelman advises that the bad driving is attributable to the combination of bad weather and a new truck for which Mr. Marchese was unfamiliar.

[3] I pre-tried this matter last September, and it has been clear since then that Mr. Marchese desired to resolve this charge by way of a guilty plea. I therefore consider this to be an early guilty plea insofar as there was never any indication that trial time need be set aside.

[4] Mr. Marchese's personal situation is worth examining in some detail. Mr. Cugelman advises that his client is 36 years old, single, with no dependants. He completed High School and then a three-year program at Centennial College as an aircraft mechanic. He is currently employed at both Pearson and the Goderich airport in that capacity. Apparently being an aircraft mechanic has left him with a painful condition in his right hand which required surgery. He was prescribed pain killers, to which he developed a dependency. The Fentanyl patches were used by Mr. Marchese to self-medicate. He now has pain in his left hand and is being monitored for surgery to relieve him of that condition.

[5] The exhibits filed at sentencing indeed confirm that he has been prescribed Oxycocet as a result of surgery on his right hand in September 2014 to relieve Mr. Marchese of carpal tunnel syndrome. He has been regularly attending an Opioid Treatment program at the Canadian Mental Health Association. According to staff at CMHA, he participates well in the counselling process. He also attends an Addiction recovery clinic supervised by a physician and has progressed well in that program. He works with a psychotherapist to address his drug addiction program, attending bi-weekly sessions. He attends NA/AA and is a motivated, regular participant. He volunteers in his local community. He is, I understand, well-motivated and making good progress. Lastly, his employer confirmed that he is gainfully employed as an aircraft maintenance engineer with a national airline, and has been for over four years. Keeping passenger jets airworthy, I am told, requires a security clearance and no criminal convictions. This makes sense.

[6] In this case the Crown seeks a short sharp jail sentence chiefly, I understand, because Fentanyl is a highly addictive substance, and is prone to abuse in the community. General and specific deterrence fuel the Crown's position. Mr. Cugelman asks that his client be discharged so that he may maintain his conviction free status and therefore his employment.

[7] In my humble opinion the war on drugs should not be waged against addicts such as Mr. Marchese, who is making significant, real and ongoing efforts to properly address his addiction. His addiction appears to have been brought on by surgery as opposed to lifestyle. There are no indicia of trafficking in this case, which would otherwise be an aggravating factor. Although there was evidence of bad driving by Mr. Marchese, I cannot find that to be an aggravating factor in the absence of police confirmation that such driving was a function of drug or alcohol consumption. I find that rehabilitation is the principle concern in this sentencing. Mr. Marchese took the time to train for a specialized job which is of significant value to the Canadian economy. He has taken responsibility for his possession of four Fentanyl patches as well as his addiction. His documented work in dealing with his addiction significantly reduces the risk to the public going forward. His is a public health issue primarily, and much less a matter of criminal interdiction. For those reasons I find that it is in Mr. Marchese's interest, and not contrary to the public interest that he be granted a discharge under s. 730 of the Criminal Code. His discharge will be conditional on completing 12 months of probation which contains the following terms:

• statutory terms;
• report now to a Probation Officer and as directed in the future; and
• attend for such counselling for substance abuse as directed by your probation officer, and sign all forms required by the probation officer to monitor progress.

Released: March 6, 2015

Signed: Justice David S. Rose