Reasons for Sentencing

Court File No.: CR-23-10000209-0000
Date: 2025-03-27
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Josue Varela Granado
Heard: March 6, 2025

Appearances:
Marnie Goldenberg, for the Crown
Zaire Puil, for the Defendant

Judge: G. Roberts

Overview

[1] Around 5:30 am on December 28, 2019, PC Simpson came upon Josue Varela Granado stopped in a live lane of traffic on Lakeshore Boulevard West, near Ellis Avenue. PC Simpson came to help, and quickly realized that Mr. Varela Granado was impaired. When she attempted to arrest him, he pushed her into the middle lanes of Lakeshore Boulevard West, and ran. About 6 minutes later PC Baroudi and PC Winter saw Mr. Varela Granado on the Queensway and asked him to stop. He ran again. They caught him a few seconds later. He had powder and crack cocaine and bundles of cash in his jacket pocket. He was wearing a cross body satchel containing a handgun, fully loaded with an over-capacity magazine, racked, with a bullet in the chamber, together with a laser sight and extra ammunition.

[2] After a Charter application was dismissed (see reasons at R. v. Varela Granado, 2024 ONSC 6592), Mr. Varela Granado pleaded guilty to counts 1, 2, 6, 7 and 9 (essentially that he was impaired, escaped PC Simpson’s lawful custody, and possessed the powder and crack cocaine PC Baroudi and PC Winter found in his pocket). He pleaded not guilty to counts 3, 4, 5, and 8, 10, 11 (relating to possession of the gun, over-capacity magazine, and ammunition, and possession of the drugs for the purpose of trafficking, and possession of the proceeds of crime). Following a two-week trial, a jury found him guilty of all the counts on which he pleaded not guilty. Based on his plea, and the jury verdict, he is guilty of all 11 counts on the indictment.

[3] The Crown’s position is that a total sentence of between 7.5 and 8.5 years is fit and appropriate in all the circumstances. The Crown also requests a DNA order, a lifetime weapons prohibition pursuant to s.109(1)(b), and forfeiture of the handgun, drugs, and cash.

[4] The Defence’s position is that a total sentence of 4 years and 15 days is fit and appropriate in all the circumstances, which places Mr. Varela Granado in a time served position (indeed beyond a time served position when the pre-trial custody is properly accounted for). Defence counsel made no submissions on the ancillary orders requested by the Crown.

[5] In all the circumstances of these offences and this offender, I am satisfied that a sentence of 7 years and 15 days is fit and appropriate, and that the ancillary orders requested by the Crown should be made.

Circumstances of the Offence

[6] The charges in the indictment, together with counsels’ position on sentence, are as follows:

• Count 1: impaired driving - s.320.14(1)(a) - Crown seeks 15-30 days concurrent; Defence seeks 1 day concurrent to refuse.
• Count 2: escape lawful custody – s.145(1) - Crown seeks 30 days consecutive; Defence seeks 30 days concurrent.
• Count 3: possess prohibited firearm while knowingly not being the holder of a license - s.92(1) – in the circumstances of this case counsel agree that this count overlaps entirely with count 4 and should be stayed pursuant to the “Kienapple” principle against multiple convictions. I agree.
• Count 4: possess loaded prohibited firearm without being holder of an authorization or license – s.95 – Crown seeks 5-6 years consecutive; Defence seeks 3 years.
• Count 5: possess prohibited device, namely over-capacity cartridge magazine – s.88(1) – Crown seeks 6 months concurrent; Defence also seeks 6 months concurrent.
• Count 6: refuse to comply with lawful demand for urine sample – 320.15(1) – Crown seeks 15-30 days concurrent; Defence seeks 15 days consecutive.
• Count 7: possession of cocaine – s.4(1) CDSA – included offence in count 8 (only separated out because Mr. Varela Granado wished to plead guilty to it in front of the jury at the start of the trial).
• Count 8: possession of cocaine for the purpose of trafficking – s.5(2) CDSA – Crown seeks 2.5 years consecutive; the defence 1.5 years consecutive (Defence submits two years would be appropriate but sentence should be reduced to 1.5 years because of totality).
• Count 9: possession of crack cocaine – s.4(1) CDSA – included offence in count 9 (as with count 7 only separated out because Mr. Varela Granado wished to plead guilty to it in front of the jury at the start of the trial).
• Count 10: possession of crack cocaine for the purpose of trafficking – s.5(2) CDSA; Crown seeks 2.5 years concurrent to count 8; Defence seeks 1.5 years concurrent to count 8.
• Count 11: proceeds of crime – s.354(1) – Crown seeks 6 months concurrent; Defence seeks 3 months concurrent to count 8.

[7] Given that this was a jury trial, I must begin by determining the material facts required for sentencing. This is a two-step process. s.724 of the Criminal Code; R. v. Aragon, 2022 ONCA 244 at para.106. First, I must “accept as proven, all facts, express or implied, that are essential to the jury’s verdict”. This means I “must identify any relevant factual determinations the jury has made by examining what facts were essential to the jury’s verdicts, and then apply those facts when sentencing the offender.” Second, I may “find any other relevant fact that was disclosed by evidence at the trial to be proven….” This involves me engaging in my own “independent fact-finding exercise”. As the SCC noted in R. v. Ferguson, 2008 SCC 6 at para. 17, where “the factual implications of the jury’s verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury but should come to his or her own independent determination of the relevant facts”. In so far as facts are aggravating, I must be satisfied of them beyond a reasonable doubt. In so far as they are mitigating, I need only be satisfied of them on a balance of probabilities. If the evidence at trial was not sufficient to establish a fact to the requisite standard, evidence must be adduced.

[8] Mr. Varela Granado testified that the powder and crack cocaine was for personal use, and he did not know the satchel had a gun in it – his friend Jeffrey Ramirez had left the satchel in Mr. Varela Granado’s car a few days earlier and Mr. Varela Granado grabbed it by mistake when he ran from PC Simpson, thinking it was his satchel containing his house keys. The jury was given a DW instruction. The jury was also instructed that even if they entirely rejected Mr. Varela Granado’s evidence, and reached step three of DW, the Crown’s case turned on circumstantial evidence, so they must be satisfied that Mr. Varela Granado’s guilt was the only reasonable conclusion in the circumstances. In light of the jury’s verdict, I find the facts as follows.

[9] Shortly before 5:30 am on Saturday, December 28, 2019, PC Leigh Simpson noticed a person standing outside a vehicle stopped in a live lane of traffic on Lake Shore Boulevard West (the most southern eastbound curb lane) around Ellis Avenue. PC Simpson did a u-turn and approached to see if the person needed help. Mr. Varela Granado was now sitting inside his car (a 2016 silver Hyundai CKNN362).

[10] PC Leigh Simpson, PC Kieran Winter, and PC Anthony Baroudi, the three TPS officers who interacted with Mr. Varela Granado beginning around 5:30 am on December 28, 2019, were all in TPS police uniform, driving marked police scout cars.

[11] After speaking to Mr. Varela Granado, and looking at the damage to the Hyundai, PC Simpson formed the opinion that he was impaired by a drug. She did not smell alcohol, but Mr. Varela Granado’s answers were not responsive to the things she was saying or asking, his speech was slow, and he appeared sleepy and his eyes were only half open. She noticed a strong smell of marijuana. Around 5:30 am she decided to arrest him for impaired driving.

[12] Mr. Varela Granado was initially cooperative with PC Simpson’s investigation, providing his driver’s license, turning off his car and handing PC Simpson the keys, and stepping out of his car, but when she asked him to put his hands behind his back so she could handcuff him, he pushed her into the roadway and fled across all of Lakeshore Boulevard West, all of the Gardiner Expressway, and disappeared east and north of the Gardiner. The push is captured on PC Simpson’s in car camera (ICC). It was a strong push, sending PC Simpson backwards into the adjacent live lanes of Lakeshore Boulevard West. PC Simpson turned to chase Mr. Varela Granado, but she was off balance because of the push, and nearly fell in the middle lanes of Lakeshore Boulevard West.

[13] Around 6 minutes later, around 5:36 am, PC Baroudi and PC Winter saw Mr. Varela Granado walking east on the north side of the Queensway in the area of Colburne Lodge, just south of High Park. They believed he was the person who had pushed PC Simpson, and asked him to stop. He fled. They chased him. PC Baroudi caught up to Mr. Varela Granado a few seconds later and tackled him and brought him to the ground. Mr. Varela Granado was lying on his hands. As PC Baroudi struggled to get control of Mr. Varela Granado’s hands, he noticed Mr. Varela Granado was wearing a satchel across the front of his torso that seemed to contain something heavy and hard. PC Baroudi and PC Winter got control of Mr. Varela Granado’s hands, handcuffed him, and brought him to his feet. PC Winter unclipped the satchel and handed it to PC Baroudi. They brought Mr. Varela Granado to the front of their scout car to search him on the ICC.

[14] The satchel Mr. Varela Granado was wearing when he was arrested contained a Taurus, model PT 1111 Millennium Pro, Semi-Automatic handgun, bearing serial number TCN90124. It was fully loaded with an over-capacity magazine containing 12 cartridges of 9mm Luger calibre ammunition. It had been racked, and a 13th round was in the chamber, ready to fire. There were 29 additional rounds of ammunition in the satchel, mostly stuffed inside a clear ziplock bag, but a few were loose. Mr. Varela Granado was also carrying an attachable laser sight in the satchel.

[15] The handgun was a prohibited weapon, and the over-capacity magazine was a prohibited device. Mr. Varela Granado did not have a license or registration certificate permitting him to possess the handgun or any other firearm.

[16] During their search of Mr. Varela Granado, police also found the following items:

• The satchel containing the loaded Taurus handgun and ammunition also contained, among other things, small clear ziplock bags inside a larger clear ziplock bag;
• The right pocket of Mr. Varela Granado’s jacket contained three packages of drugs:
  • 24.31 g powder cocaine;
  • 20.10 g crack cocaine (approximately 201 individual “hits”);
  • 0.74 g powder cocaine. (At the time, the powder cocaine was worth between $1232 and $2755; the crack between $910 and $1230.)
• The right pocket of Mr. Varela Granado’s jacket contained $4045 Canadian dollars (in two bundles, $2260 banded with an elastic, $1780 unbanded) plus 5 English pounds.
• Mr. Varela Granado was carrying two cell phones, credit cards, and car keys.

[17] Mr. Varela Granado’s car, the 2016 Hyundai, was also searched. The contents included:

• Two clear ziplock baggies containing a total of 60.79 g of phenacetin (a cutting agent) under the front passenger seat.
• Two digital scales, one in the foot well of the front passenger seat, the other in the centre console. The digital scale in the foot well had what appeared to be the residue of white powder on it.
• Three cell phones.
• Small clear ziplock baggies.
• Documents addressed to Mr. Varela Granado: a letter from the TD bank, an invoice related to maintenance for the Hyundai, and a POA ticket.
• Dried marijuana folded inside a receipt for car maintenance in Mr. Varela Granado’s name.

[18] Mr. Varela Granado was taken to traffic services where a drug recognition evaluation (DRE) was performed by DC Shawn McConnell. DC McConnell spoke to Mr. Varela Granado and observed him as he was booked in, spoke to PC Simpson about her grounds, and performed a DRE. Mr. Varela Granado understood and followed DC McConnell’s instructions during the DRE, but made errors on the tests consistent with cannabis consumption. At the conclusion of the tests, after considering all the information he had about Mr. Varela Granado, DC McConnell formed the opinion that Mr. Varela Granado’s ability to operate a motor vehicle was impaired by cannabis. DC McConnell demanded that Mr. Varela Granado provide a urine sample. Mr. Varela Granado refused.

Circumstances of the Offender

[19] Mr. Varela Granado was born on January 29, 1998. He was 21 years old at the time of the offence, almost 22. He recently turned 27. He came to Canada when he was 6 years old, from Honduras, with his mother and older sister. He is a permanent resident and a convention refugee. His family were supportive at the time of the offence – he was living with his brother and his brother’s family, and working with his sister at her company. His family remains supportive, at least some of them. His mother was in court every day during the trial and sentencing. His sister was in court many days.

[20] Mr. Varela Granado dropped out of school in grade 10. While in custody, he has worked toward completing his high school credits, which he accomplished this past January. He has also done numerous brief programs in custody – according to his counsel, everything that has been available to him. The programs are listed in exhibit 6C.

[21] Mr. Varela Granado has a youth record. The Crown sought and received access to the record for the purpose of this sentencing. In 2016, as a young person, Mr. Varela Granado was found guilty of armed robbery, contrary to s.343(d) of the Criminal Code. Following a guilty plea, he received a disposition of 4 months custody plus 2 months supervision in the community and probation, in addition to 14 days pre-sentence custody, and a mandatory weapons prohibition under s.51(1) of the YCJA.

[22] Mr. Varela Granado testified at trial and called a defence. He testified that at the time of the offence, December 28, 2019, he was living with his brother and his brother’s family, and working for his sister in her demolition and cleaning company. He was also partying very hard. The cocaine he had was for his own use – he used both powder and crack; he had a lot because he was preparing for a new year’s party. He had no idea there was a handgun and ammunition in the satchel he was carrying when he was arrested. He thought it contained his keys. Mr. Varela Granado called his sister who confirmed that he was working for her at the time, and was often paid in cash (though there was no work over the Christmas week). He also called a witness, Jeffrey Ramirez, who testified that the satchel containing the handgun belonged to him. Mr. Ramirez testified that he was released from custody and almost immediately purchased an illegal handgun for his protection. He left his satchel containing the handgun in Mr. Varela Granado’s car on December 24, 2019, when he was out drinking and hanging out with Mr. Varela Granado. Unfortunately, Mr. Ramirez was shot shortly after and never told Mr. Varela Granado about leaving the satchel containing the handgun in Mr. Varela Granado’s car.

[23] The jury rejected Mr. Varela Granado’s evidence that he did not know about the handgun in his satchel, and that powder and crack cocaine was for his personal use. But I agree with defence counsel that the jury did not necessarily reject Mr. Varela Granado’s sister’s evidence (that Mr. Varela Granado worked for her). Nor did they necessarily reject all aspects of the defence evidence. For example, it is clear that at the time of the trial in November 2024, Mr. Varela Granado still associated with Jeffrey Ramirez. At trial, Mr. Varela Granado described Mr. Ramirez as someone he had known for 8 years. At the time of the offence he was a “drinking, partying buddy” who Mr. Varela Granado saw as much as 2-3 times a week. Mr. Ramirez described himself as “pretty good friends” with Mr. Varela Granado. They hung out, shared stories, and “could be” good friends. Mr. Ramirez admitted he had a significant criminal record including for drugs, dangerous driving, and serious violence. The upshot of all this is that, as of the date of trial, Mr. Varela Granado still had significant ties to a criminal element. Again, this is not aggravating; but it is important context.

[24] When Mr. Varela Granado was released on bail in September 2024, he re-connected with the congregation he was part of as a child. He also re-connected with his daughter (she was born in 2016, and is now 8), and many family members. Defence counsel provided numerous letters of support, mainly from family members. While the letters contain only oblique reference to Mr. Varela Granado’s “legal troubles” or “legal matters”, defence counsel assures me that she explained to the writers exactly what those troubles were. The letters of support were all written since the jury verdict, and include the following:

• Sandra Alvarado of Brampton – aunt – writes of Mr. Varela Granado’s kindness, and care for family. He understands how dangerous his actions were and wants to improve.
• Nelly Varela of Brampton – mother – explains that she came to Canada because of gang violence in Honduras. Mr. Varela Granado was 6 at the time. He was exposed to gang violence and domestic violence as child. She raised Mr. Varela Granado as a single mother. He has not had a father figure. Mr. Varela Granado is kind, loving and compassionate towards friends, family and loved ones. She notes he has matured since coming out of jail.
• Kristel Canales – known Mr. Varela Granado for 8 years – notes that prison has helped Mr. Varela Granado make significant changes in his life – he is hard working, more mature, and has shown remorse by getting closer to God. Defence counsel notes that Ms. Canales was one of the sureties so, despite referring simply to Mr. Varela Granado’s “legal matters,” she is well aware of what they are.
• Yarleny Urbina of Brampton – cousin – in recent months she has noticed a shift in Mr. Varela Granado’s attitude. He is attending church, seeking ways to improve his life and his relationships. He is re-building connections with his family, especially his daughter and his cousins.
• Wendy Lopez of Brampton – aunt – notes that while Mr. Varela Granado has faced challenges, he has shown growth, responsibility, and dedication. Since being released in September 2024, he has been trying to make up for lost time. He is working to be good father and man.
• Raynesha Clarke Sargeant - mother of his daughter – noted that Mr. Varela Granado is very active in his daughter’s life. He is aware of his past mistakes, and has undergone a great transformation. He has shown remorse, taken responsibility, and is dedicated to positive change.
• Abigail Quiroz - older sister (by 1 year) (she testified at trial) – noted that Mr. Varela Granado protected her growing up. He is sensitive, kind, honest and caring. He has worked to improve himself during his incarceration. He is a natural leader, hard working and dependable, and has helped with her business. He is a great father despite his young age. He has grown during incarceration.
• Heidy Perez Innisfil – cousin – Mr. Varela Granado has committed himself to Jesus, and expressed a desire to change his life and be part of daughter’s life.

[25] It is hard to reconcile the references in the letters of support to Mr. Varela Granado maturing and taking responsibility, with his testimony at trial. To put it bluntly, he lied to the jury about why he had the drugs and whether he knew about the gun. While this is not an aggravating circumstance on sentence, it prevents me from relying on the assertions in the letters of support that he is taking responsibility for his past actions. He manifestly did not take responsibility for his actions during the trial. Further, his on-going friendship with Mr. Ramirez, as described by both Mr. Ramirez and Mr. Varela Granado in their testimony, shows that he continues to associate with at least one criminal peer.

[26] Mr. Varela Granado chose to address me at the end of the sentencing submissions. He apologized to the court and to his family for his wrong decisions. He recognized that PC Simpson could have been seriously hurt or killed, and he apologized for that (we watched the video of the push repeatedly during sentencing submissions). He wants to move forward. He is happy he finished school. He wants to focus on himself and his business whenever he gets out of prison. He has been sober, and plans to stay sober.

Range of Sentence

[27] Section 95 of the Criminal Code provides that every person who possesses a prohibited or restricted firearm, either loaded, or together with readily accessible ammunition that is capable of being discharged in the firearm, without the correct authorization and registration, is guilty of an indictable offence. Where the offence is proceeded with by indictment, it is punishable by a maximum term of imprisonment not exceeding ten years.

[28] This offence captures a broad spectrum of conduct, ranging from technical breaches more akin to regulatory offences posing little risk to the public, to truly criminal conduct placing the public at great risk of significant and immediate harm. In R. v. Nur, 2013 ONCA 677, aff'd 2015 SCC 15, Chief Justice McLachlin endorsed the following description of the offence by Justice Doherty:

At one end of the spectrum stands the outlaw who carries a loaded prohibited or restricted firearm in public places as a tool of his or her criminal trade. By any reasonable measure, this person is engaged in truly criminal conduct and poses a real and immediate danger to the public. At the other end of the spectrum stands the otherwise law-abiding responsible gun owner who has possession of an unloaded restricted or prohibited firearm, but with readily accessible ammunition stored nearby. That person has a license and registration certificate for the firearm, but knowingly possesses the firearm at a place that falls outside of the terms of that license. That person's conduct may well pose little, if any, risk to others. I would characterize that misconduct as more in the nature of a regulatory offence. (from para.51 in the Court of Appeal decision)

[29] Both the Ontario Court of Appeal and the Supreme Court of Canada concluded that the three-year mandatory minimum punishment violated s.12 of the Charter, as it would amount to cruel and unusual punishment if applied at the "regulatory" end of the spectrum. However, every court that heard Nur affirmed that conduct at the criminal end of the spectrum will attract exemplary sentences that emphasize deterrence and denunciation. Justice Doherty, at para.26, explained that his conclusion that the mandatory minimums were unconstitutional did

have any significant impact on the determination of the appropriate sentence for those s.95 offences at what I have described as the true crime end of the s.95 spectrum. Individuals who have loaded restricted or prohibited firearms that they have no business possessing anywhere or at any time, and who are engaged in criminal conduct or conduct that poses a danger to others should continue to receive exemplary sentences that will emphasize deterrence and denunciation.

[30] Justice McLachlin endorsed this conclusion, noting at para 120"It remains appropriate for judges to continue to impose weighty sentences in other circumstances, such as those in the cases at bar. For this reason, I would decline to interfere with the sentences that the trial judges imposed on Nur and Charles."

[31] Since Nur was decided, the Court of Appeal has continued to affirm that those who commit s.95 offences falling within the "truly criminal conduct" end of the spectrum can expect exemplary sentences emphasizing deterrence and denunciation. The Court of Appeal has repeatedly confirmed a range between three to five years for a first s.95 offence where the possession of the gun is associated with criminal activity (such as drug trafficking): R. v. Graham, 2018 ONSC 6817 per Code J. at para. 38, aff’d 2020 ONCA 692. The Court of Appeal has applied this range, emphasizing Canadian intolerance for gun crime, even where the offender is young, had no criminal record, and had excellent rehabilitative prospects: R. v. Marshall, 2015 ONCA 692; R. v. Mansingh, 2017 ONCA 68; R. v. Samaniego, 2020 ONCA 439.

[32] The range is much higher for a recidivist: 6-9 years; and 8-10 years for a recidivist who breaches a s.109 order: R. v. Graham, at paras.36-40; R. v. Wisdom, 2024 ONSC 4047.

[33] Possession for the purpose of trafficking in a schedule I substance, contrary to section 5(2) of the Controlled Drugs and Substances Act (CDSA), is punishable by a maximum sentence of life. There is no mandatory minimum sentence. Trafficking and possession for the purpose of trafficking are treated the same for purpose of punishment.

[34] The offence of trafficking captures a broad spectrum of conduct. The range of sentence generally reflects both the nature of the drug trafficked, and the nature of the trafficking involved. Cocaine, heroin and fentanyl are all considered to be extremely serious drugs, toxic to entire communities, with fentanyl replacing heroin as the “worst of the worst”. Cocaine trafficking is considered to fall within the following general hierarchy, from least to most serious:

1. Street level seller – small hand-to-hand transactions, often an addict-trafficker;
2. Street level supplier – transactions up to an “Eight-Ball” or one ounce;
3. Supplier to street level supplier (mid-level) – multi-ounce transactions;
4. Distributor to Supplier (high-level) – one-half kilo to multi-kilo transactions;
5. Importer to Distributor.

[R. v. Haye, [2013] O.J. 6493 per Code J.A., aff’d [2014] O.J. No.6575 (C.A.)]

[35] The range of sentence for cocaine trafficking is well-established: approximately 6 months to two years less a day for a “street-level” trafficker dealing in gram amounts of cocaine, amounts less than an ounce; approximately 5-8 years for a “mid-level” trafficker, capable of supplying ounce amounts to street-level traffickers, and dealing in ounce levels: R. v. Woolcock, [2002] O.J. No.4927 at para.15; R. v. Lynch, 2022 ONCA 109 at para.14.

[36] The range of sentence serves as a guide for the application of the relevant principles and objectives of sentencing. But it is only a guide. Ultimately, a sentence must be proportionate to the particular circumstances of the offence, including its objective seriousness (as suggested by the maximum penalty and the sentencing range), its subjective seriousness (the particular circumstances in which it was committed), and the circumstances of the offender, including all relevant aggravating and mitigating circumstances (aggravating factors increase the gravity of the offence or degree of responsibility of the offender relative to others committing the same kind of offence; mitigating factors reduce the gravity of the offence or degree of responsibility of the offender relative to other offenders committing the same kind of offence): s.718.1 of the Criminal Code; R. v. Friesen, 2020 SCC 9 at paras. 34, 37-38, 96-97, and 108-114; R. v. M.V., 2023 ONCA 724 at paras.44-52.

Principles of Sentencing

[37] The principles of sentencing are now largely codified (mainly in ss.718, 718.01-04, 71.1 of the Criminal Code), though the common law remains important. The relative weight to be accorded to each sentencing principle or objective will vary depending on the particular circumstances of the offence and the offender. In all instances, the sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.

[38] Section 10(1) of the CDSA incorporates the principles set out in the Criminal Code, and notes that “the fundamental purpose of any sentence for an offence under this Part is to contribute to the respect for the law and the maintenance of a just, peaceful and safe society while encouraging rehabilitation, and treatment in appropriate circumstances, of offenders and acknowledging the harm done to victims and to the community.”

[39] It is well-established that the principles of general deterrence and denunciation are of paramount importance when sentencing for all three categories of offences committed in this case. However, rehabilitation and the principle of restraint are also of vital importance: Mr. Varela Granado is a young man facing his first lengthy sentence. It must be as short as possible. This is a fine balance. Rehabilitation must play a significant role in the sentencing but cannot be permitted to overwhelm general deterrence and denunciation: R. v. Burke-Whittaker, 2025 ONCA 142. The principle of totality must also be considered. Although the offences in this case arise from the same transaction, many involve different legally protected interests, which generally attract consecutive sentences. In the circumstances, I must keep an eye on totality and adjust the sentences as necessary to ensure that the total sentence is not crushing, and is fit and appropriate in all the circumstances.

Analysis – What is a Fit Sentence in All the Circumstances?

[40] I will begin by assessing the circumstances of the offence, and then turn to the circumstances of the offender. In the course of doing this, I will address the mitigating and aggravating circumstances, relevant collateral consequences, and relevant principles of sentencing. I will follow the recommendation of the Supreme Court in R. v. Bertrand Marchand, 2023 SCC 26 and provide individual sentences for each offence, so my analysis is transparent, but in doing so I am mindful of the principle of totality, and will reduce a sentence where necessary to ensure that the final global sentence is not crushing and is fit and appropriate in all the circumstances.

Possession of the Illegal Handgun and Over Capacity Magazine (ss.95 and 88)

[41] Beginning with the circumstances of the s.95 offence, Mr. Varela Granado was driving in Toronto, highly impaired, with a handgun, fully loaded with an over-capacity magazine, racked with an additional cartridge in the chamber, ready to fire. He was also carrying a laser sight and bag full of additional ammunition. He would have been well-prepared for a serious gun fight. He also had close to an ounce of powder cocaine and three quarters of an ounce of crack cocaine, together with other indicia he was a cocaine dealer (baggies, multiple scales, multiple cell phones, 60 g of the cutting agent phenacetin). I do not consider the indicia of cocaine trafficking as an aggravating circumstance in relation to the s.95 offence as I will consider it separately. I mention it only as it makes clear that this was a “true crime possession”; Mr. Varela Granado possessed the loaded handgun in conjunction with other criminal conduct.

[42] PC Simpson saw Mr. Varela Granado stranded on the side Lakeshore Boulevard East next to his damaged car and approached to see if he needed help. It quickly became apparent to her that he was impaired; not by alcohol, but by a drug (PC Simpson smelled marijuana, and the DRE opined the impairment was due to cannabis). When PC Simpson tried to arrest him, he forcefully pushed past her, sending her reeling into the middle of the east-bound live lanes of Lakeshore Boulevard. His body was touching or extremely close to hers as he physically pushed past her. He was holding the satchel containing the handgun, racked with a cartridge in the chamber ready to fire.

[43] Shortly after escaping from PC Simpson, PCs Baroudi and Winter saw Mr. Varela Granado walking east on the Queensway. They believed he was the suspect who just fled from PC Simpson and asked him to stop. He fled. They chased him and managed to catch him on the edge of the wooded area at the south end of High Park. He struggled. It took both officers putting their weight on Mr. Varela Granado in order to physically control him. In particular, he was lying on his hands. During this struggle, Mr. Varela Granado was wearing the satchel containing the handgun (fully loaded and racked with a cartridge in a chamber), across his chest. He was highly impaired. The officers struggled to retrieve his hands from under his body during the arrest. This was obviously an extremely dangerous arrest for both young officers.

[44] True crime possessions of illegal handguns fall on a spectrum. For example, a drug dealer who keeps his illegal handgun locked in a safe at home would fall at one end, while a drug dealer who is found out on the streets of downtown Toronto with his handgun loaded, racked, and a cartridge in the chamber, falls at the other end. The circumstances of Mr. Varela Granado’s possession of this handgun place it at the most serious end of the spectrum of true crime possessions. These aggravating circumstances include:

• Mr. Varela Granado was extremely impaired.
• Mr. Varela Granado was driving on a busy Toronto thoroughfare.
• The handgun was fully loaded with an overcapacity magazine (10 cartridges in the magazine).
• The handgun was racked with a cartridge in the chamber, ready to fire.
• Mr. Varela Granado was carrying a bag full of extra ammunition (29 extra cartridges) in same satchel where he carried the handgun.
• Mr. Varela Granado was also carrying a laser sight in the satchel.
• Mr. Varela Granado physically resisted lawful arrest by no less than three officers, all while carrying the loaded handgun with a bullet in the chamber, putting their lives in danger.

Possession of the Powder and Crack Cocaine for the Purpose of Trafficking

[45] Where the trafficking falls in the hierarchy will turn on all the circumstances, including the amounts trafficked. In this case, I would situate the trafficking somewhere between street level supplier and mid-level trafficker. The presence of almost an ounce each of different types of cocaine, the large amount of cash, together with the loaded handgun, over-capacity magazine, and ample extra ammunition, suggests an organized and serious level of trafficking.

[46] Mr. Varela Granado was manifestly not an addict trafficker. While he was heavily impaired at the time he was caught, the evidence of the DRE who examined him shortly after his arrest was that the impairment was due to cannabis. The jury rejected Mr. Varela Granado’s evidence that the powder cocaine and crack was for his personal use. There is no credible evidence before me that he is an addict, or even that he was a regular user of powder or crack cocaine.

Impaired Operation and Fail to Provide a Sample

[47] Mr. Varela Granado was involved in a single car collision. He was heavily impaired at the time. It was not clear how the collision happened. Some of the first responders noted marks on the roadway which suggested Mr. Varela Granado drove into a median. What I can say is it is extremely fortunate no other vehicle or person was hit. For decades, every level of court in this country has emphasized the seriousness of impaired driving. While the focus has traditionally been on alcohol, other substances can impair as well. The results are the same. Innocent people are killed; family are destroyed. These were extremely serious offences.

[48] Defence counsel submits that Mr. Varela Granado simply skirted past PC Simpson in order to flee. I disagree. I have watched and re-watched the ICC video of the event. I am also mindful of PC Simpson’s evidence. She described asking Mr. Varela Granado to step out of the car. He opened the car door and began to step out. PC Simpson placed her left hand on the driver’s door as a “physical barrier” to control him while she reached for her handcuffs with her right hand. As he began to step out, she asked him to put his hands behind his back. She testified that he pushed her and bolted between her body and the car door (i.e. the space she had closed off with her left hand). Her right hand and arm came forward from the force and hit the car as a result, causing pain, swelling and bruising of her right thumb and wrist area (photographs were entered at trial as exhibits 4A, B, and C). The ICC does not clearly show Mr. Varela Granado’s hands on PC Simpson’s body, but shows him push between her body and the car door, and her reel back and nearly lose her balance. In all the circumstances I am satisfied beyond a reasonable doubt that Mr. Varela Granado forcefully pushed PC Simpson.

[49] It was a strong push, sending PC Simpson backwards into the adjacent live lanes of Lakeshore Boulevard West. PC Simpson turned to chase Mr. Varela Granado, but she was off balance because of the push, and nearly fell in the middle lanes of Lakeshore Boulevard West. The emotion in PC Simpson’s voice was palpable (both times she testified, i.e. during the Charter voir dire and again at trial) as she described nearly falling, and feeling like the pavement was “a few inches from my nose”. The ICC shows her nearly fall. It also shows that her face did not actually come within inches of the roadway, but I fully accept that, to PC Simpson, it felt like it did. This was a terrifying and traumatic event.

[50] Defence counsel submitted that she agreed to a number of facts that shortened the trial and this should be considered a mitigating circumstance on sentencing. I do not agree that there was anything mitigating about the way defence counsel conducted the trial. In saying this I want to be clear that I do not view anything I am about to write as aggravating. It is trite law that an accused has a constitutional right to mount a vigorous defence, and nothing in pursuit of this end can be considered to aggravate sentence. Rather my comments are directed to explaining why I do not believe that Mr. Varela Granado is entitled to mitigation because of the way the trial was conducted.

[51] Defence counsel vigorously pursued a Charter application challenging the constitutionality of the detention (see reasons at 2024 ONSC 6592). For the reasons I explained, I found the application lacked merit. Quite apart from the other grounds to stop Mr. Varela Granado, once PCs Baroudi and Winter asked Mr. Varela Granado to stop so they could speak to him, which they were manifestly entitled to do, he took off running. This alone gave them grounds for an investigative detention. A safety search was manifestly required in the circumstances, during which the handgun would inevitably be found. It took almost a full week to litigate the Charter application and all the arresting officers were subject to vigorous cross-examination. The same officers had to testify again in front of the jury during the trial.

[52] While Mr. Varela Granado admitted his guilt of the driving offence, escaping from PC Simpson, and possessing cocaine, and defence counsel admitted related facts, all were in calculated service of the defence that Mr. Varela Granado was being open and honest with the jury, and they should believe him when he testified he knew nothing of the gun, and possessed the powder cocaine and crack cocaine for his own use. The jury rejected his evidence. To be blunt, he lied to the jury. Perhaps more to the point, none of the admissions saved trial time. Because Mr. Varela Granado admitted only some of the items found on him, the Crown still had to prove exactly what was found on Mr. Varela Granado’s person and in his car in order to prove the gun possession charges, and that he possessed the cocaine for the purpose of trafficking. The Crown also had to painstakingly prove the nature of the impairment in order to show it was due to cannabis (and not cocaine).

[53] In other respects, the trial was far from a model of efficiency. The cross-examination of the DRE took over a day. Notwithstanding that PC Winter testified that Mr. Varela Granado fell asleep in the back of the squad car after being arrested, defence counsel played the entire ICC of Mr. Varela Granado in the back of the squad car. Sure enough, Mr. Varela Granado fell asleep. The jury sat patiently while they watched him sleep.

Mr. Varela Granado’s Background and Circumstances

[54] Mr. Varela Granado does not have prior record for a s.95 offence. However, he does have a youth record for “armed robbery” contrary to s.343(d) of the Criminal Code. Despite getting the required court orders, and making best efforts, the Crown was unable to obtain transcript or even a tape of the guilty plea proceedings. The Crown was only able to obtain the information and synopsis. The synopsis outlines that Mr. Varela Granado was one of four males who entered a home and committed a vicious home invasion robbery with an imitation firearm where one of the victims was pistol whipped to the face and head so severely she had to put into a medically induced coma. The Crown argues that this record places Mr. Varela Granado in the category of a recidivist for the purposes of sentencing for a s.95 firearm possession.

[55] Defence counsel forcefully argues that the Crown has failed to discharge its high burden of proving the aggravating circumstances of the robbery beyond a reasonable doubt. Without a transcript, which the Crown cannot get, it is impossible to know exactly what Mr. Varela Granado pleaded to. I agree with defence counsel. While the offence is concerning on its face, and the synopsis does not mention any other possible offensive weapon apart from an imitation handgun, I do not consider anything beyond the finding of guilt and disposition. Without any admissible information about the kind of offensive weapon used in the robbery I cannot be satisfied beyond a reasonable doubt that Mr. Varela Granado is a recidivist for the purpose of sentencing on the s.95 offence.

[56] Mr. Varela Granado was in repeated non-compliance with the conditions of his pre-trial release. He repeatedly failed to attend court and bench warrants were issued on two separate occasions.

[57] When Mr. Varela Granado was released on bail this past September 2024, however, he appears to have begun taking important steps toward rehabilitation. He reconnected with the church he attended as a child, he reconnected with family (as evidenced by the letters of support), and he re-connected with his daughter and has attempted to be a father to her.

[58] Mr. Varela Granado has strong ties to his mother and his sister. As I have noted, his mother was in court every day throughout the trial and sentencing. His sister was in court many days. They remain supportive and committed to helping him. Perhaps more importantly, Mr. Varela Granado appears open to accepting their help and support. I accept Mr. Varela Granado’s statement that he started a company, with his sister’s help, so as to be ready with a work plan when he is released. The family support surrounding Mr. Varela Granado is a very significant mitigating circumstance. While this support also existed at the time of the offence, I accept the defence submission that Mr. Varela Granado is older and more mature now and more appreciative of his family.

[59] While in custody, Mr. Varela Granado has taken a number of programs. I accept defence counsel’s submission that he took every program available to him, even if not directly relevant to his circumstances. He is to be commended for this. Perhaps even more importantly, Mr. Varela Granado has completed his high school while in custody. Despite dropping out in grade 10, he has worked towards completing high school, finishing all the requirements this past January 2025. This openness to learn and rehabilitate is a very significant mitigating circumstance.

[60] Defence counsel submitted that Mr. Varela Granado was in the grips of terrible cocaine addiction at the time of the offence, and I should consider this as a mitigating circumstance. While I appreciate that defence counsel need only establish mitigating circumstances on a balance of probabilities, there is simply no credible evidence to support the defence submission. The only evidence of cocaine use comes from Mr. Varela Granado, who the jury disbelieved. Further, the independent evidence suggests cocaine was not the primary cause of impairment in this case. Despite vigorous cross-examination, the DRE was unshaken that Mr. Varela Granado exhibited signs of cannabis impairment. Not impairment due to cocaine, or alcohol; impairment due to cannabis.

Collateral Consequences

[61] There are a number of potentially significant collateral consequences of any sentence I impose. Collateral consequences are neither aggravating nor mitigating, because they do not relate to the gravity of the offence or the level of responsibility of the offender, but they may increase the impact of an offence or sentence on the offender. As a result, the principles of individualization and parity require that they be considered. Like a mitigating or aggravating circumstance, however, they cannot reduce a sentence to a point where it is disproportionate to the gravity of the offence and the moral blameworthiness of the offender: R. v. Suter, 2018 SCC 34.

[62] First, there are potential immigration consequences. Mr. Varela Granado is a permanent resident and a convention refugee. Defence counsel provided two legal opinions regarding the potential immigration consequences of a conviction and sentence for the offences in this case. In a nutshell, while Mr. Varela Granado’s status as a permanent resident makes him potentially liable for deportation, the fact that he is also a convention refugee means that he cannot be deported if doing so would place him at risk of harm.

[63] In the circumstances, I cannot place meaningful weight on possible immigration consequences. Given Mr. Varela Granado’s status as a convention refugee, deportation will turn on a danger assessment made at the time deportation is sought. This is years away and impossible to predict. More importantly, given the gravity of the offences, there is no adjustment I can make to the sentence to prevent immigration consequences while still providing a fit and appropriate sentence.

[64] Second, any sentence I impose will take Mr. Varela Granado away from his daughter who is 8 years old. The Court of Appeal recently affirmed the importance of considering the “family separation consequences” of imprisonment on both an offender and his family: R. v. Habib, 2024 ONCA 830 at paras.41-47. However, evidence is generally required about the role the accused plays in the family and their reliance on him; letters of support are not enough: R. v. Brown, 2025 ONCA 164 at para.11.

[65] Mr. Varela Granado initially disconnected from his daughter out of choice. At the time of the offences, for example, Mr. Varela Granado had little to do with his daughter. He did not even spend time with her when she was brought over to be with him and his family for Christmas dinner in 2019. However, I accept Mr. Varela Granado’s evidence that since being released in September of 2024 he has sought to reconnect with his daughter. There is no evidence that the daughter relies on him, but I do not need evidence to conclude that any period of custody will be hard on them both. This is another reason that the sentence should be as short as possible while still prioritizing general deterrence and denunciation.

[66] Third, the pre-sentence custody was exacerbated by lockdowns and triple-bunking. In particular, Mr. Varela Granado was triple bunked for 32 days, from August 18 - September 6, 2024, and again from December 8 - December 23, 2024. Of those 32 days, Mr. Varela Granado was also subject to lockdown for 6 days: on August 19th (all day beginning at 8:01am), 28th (from 7 – 11 am), September 3 (all day beginning at 8:01am), December 8th (entire day), 10th (all day beginning at 8am) and 22nd (all day).

[67] The Court of Appeal has repeatedly made clear that harsh conditions of pre-sentence custody are properly considered as a mitigating circumstance, or collateral consequence, on sentence: R. v. Marshall, 2021 ONCA 344; R. v. Brown, 2025 ONCA 164. I decline to place a number on this mitigation, but it is a significant circumstance exacerbating the effect of the sentence and I take it into account and reduce the total sentence as a result.

[68] Mr. Varela Granado is a young man facing his first lengthy sentence. While all three categories of offences he has committed command emphasis on general deterrence and denunciation, rehabilitation remains important. As does the principle of restraint. The sentence I impose must be as short as possible while still achieving general deterrence and denunciation. This is a fine balance. While I cannot lose sight of rehabilitation, and must be restrained in my emphasis on general deterrence and denunciation, these principles must remain the primary objective of the sentence: R. v. Burke-Whittaker, per Favreau at paras.41-45.

Sentences for Each Offence

Sentence on the s.95 Offence and Overcapacity Magazine

[69] Defence counsel urges me to impose a sentence of three years, in other words a sentence at the bottom of the accepted three to five year range. However, all the cases defence counsel relies on in support of a sentence in this range involve guilty pleas, making them manifestly distinguishable from this case. Further, while the defence cases involve true crime s.95 possessions, most of them are at the less serious end of the spectrum of true crime possessions. For example, the firearm in question was found during a search of a home, and was not out in public, and certainly not possessed while the possessor was driving impaired and then repeatedly physically struggling with police officers seeking to lawful arrest him.

[70] I add my voice to the chorus of judicial voices at every level of court in Ontario decrying the possession of illegal loaded handguns in Toronto. Illegal loaded handguns plague our city, killing our children, friends, and neighbours. The plague is getting worse. Exemplary sentences are required.

[71] Given the enormously aggravating circumstances of this firearm possession, which I set out above, I am satisfied that this case falls at the very top end of the three to five year range for simple possession in the context of a first true crime possession. The Crown provided two detailed charts of s.95 sentences. In all the cases provided, I cannot find a true crime possession as serious as the instant case. This particularly aggravated true crime s.95(1) possession demands a five year sentence. Nonetheless I reduce it to four and a half years because of Mr. Varela Granado’s youth, rehabilitative potential, the collateral consequences, and the principle of totality.

[72] I agree with both counsel that the sentence on the over capacity magazine should be six months, concurrent to the s.95 offence.

Sentence on the Possession of Cocaine for the Purpose of Trafficking

[73] While cocaine is no longer “the worst of the worst” it is nonetheless a serious drug plaguing our community. The circumstances suggest Mr. Varela Granado was somewhere between a street level trafficker and a mid-level dealer. I believe a three-year sentence is appropriate, but I reduce it to two years because of the principle of totality, and Mr. Varela Granado’s youth and rehabilitative potential, and the collateral consequences.

[74] I considered the drug trafficking charges in relation the handgun possession only as an indicia that the handgun was possessed in the context of criminal activity, i.e. it was a true crime possession. I did not otherwise consider the drug trafficking as an aggravating circumstance. In any event, it is now well-established that sentences for s.95 firearm possession and trafficking should be consecutive: R. v. Crevier, 2015 ONCA 619; R. v. Wisdom, 2024 ONSC 4047 per Code J. at para.34. The drug trafficking sentence in this case should be consecutive but, as noted, I have reduced it because of the principle of totality.

[75] I impose 3 months on the proceeds charge, concurrent to the trafficking sentence.

Sentence on the Impaired, Refuse Demand, and Escape Lawful Custody

[76] I have considered the fact that Mr. Varela Granado was impaired, and driving, as significant factors aggravating the seriousness of the handgun possession. As a consequence, I believe the sentence for impaired driving must be concurrent. I impose 15 days for impaired driving, concurrent to the handgun sentence.

[77] The refuse demand speaks to different legally protected interests, not already taken into account as aggravating the handgun possession. I agree with the submission of both counsel that it should be 15 days; I make the sentence consecutive.

[78] I have considered the fact that Mr. Varela Granado endangered PCs Simpson, Baroudi and Winter when he physically resisted arrest while carrying a loaded handgun, racked, with a cartridge in the chamber ready to fire. However, the circumstances of the escape lawful custody go beyond what I just described. Mr. Varela Granado also pushed PC Simpson into live lanes of a very busy thoroughfare. She nearly lost her balance and fell on her face. It was dark outside. She was alone. She could easily have died. This conduct alone could merit a penitentiary sentence: R. v. Knox. But I am mindful of totality, Mr. Varela Granado’s youth, rehabilitative potential, and the collateral consequences. I impose six months. It must be consecutive.

[79] The total sentence is seven years and 15 days.

Analysis of Pre-sentence Custody

[80] Mr. Varela Granado has spent time in pre-sentence custody and on bail. Counsel do not agree how the pre-sentence custody should be treated. The Crown submits that portions should attract only 1:1 credit, and not the 1.5:1 generally required by R. v. Summers, 2014 SCC 26 (absent good reason) because Mr. Varela Granado found himself back in custody through his own actions (i.e. a good reason to depart from the ordinary 1.5:1 ratio). Defence counsel submits that this would be unfair in the circumstances, where the length of the custody flows in large part through state misconduct in the form of late disclosure in relation to other charges Mr. Varela Granado was facing.

[81] Counsel did not agree about the break-down of the pre-sentence custody. As defence counsel acted for Mr. Varela Granado on many if not all of the appearances, where counsel differ, I have relied on defence counsel’s memory of what happened and its timing. The pre-sentence custody includes the following:

• Dec 28/19 to March 25/20 – in custody from arrest to the date when Mr. Varela Granado released on house arrest bail – 89 days of custody
• Mar 25/20 to Feb 6/21 – on bail (initially a house arrest bail but varied in July/20 to permit him to work); he failed to attend court on Feb 6/21 and a bench warrant was issued
• Feb 6/21 to Apr 28/21 – (unlawfully) at large
• Apr 28/21 to May 28/21 - arrested on April 28 and the bench warrant executed on May 28, 21 at time of bail hearing when Mr. Varela Granado was released on bail – 31 days of custody
• May 28/21 to Sep 29/21 – on bail; failed to appear and a bench warrant was issued Sept 29/21
• Sep 29/21 to July 9/22 – (unlawfully at large); arrested at Salsafest on St. Clair on July 9, 2022, after fleeing from police; bench warrant executed July 10/22. Mr. Varela Granado was charged with failing to comply with his house arrest, escaping lawful custody, and being in possession of a firearm found under a vendor stall near where he was first seen by police. Defence counsel reports that she did not seek bail once Mr. Varela Granado had these new charges, and Mr. Varela Granado remained in custody until the eve of his trial on the July 9/21 charges
• July 9/22 to Sept 6/24 – in custody – 791 days
• On the eve of trial on the Salsafest charges, the Crown discovered previously unknown and undisclosed body worn camera footage showing that Mr. Varela Granado did not throw the gun found under the vendor stall. The firearm charge was withdrawn by the Crown and Mr. Varela Granado pleaded guilty to fail to comply, escape lawful custody. He was given an absolute discharge, and none of pre-trial custody was noted as being used or considered on sentence. He was released on bail in relation to the present offences.
• Sept 6/24 to Dec 6/24 – on bail; bail revoked upon jury verdict of guilty on all counts on which they were asked to deliberate
• Dec 6/24 to Mar 27/25 – pre-sentence custody of 112 days

[82] Defence counsel does not seek any “Downes” credit for harsh conditions of pre-sentence release. Not only was the initial house arrest bail quickly varied to permit Mr. Varela Granado to work, but Mr. Varela Granado repeatedly failed to attend court, in violation of the terms of his release.

[83] Defence counsel seeks full Summers credit at the standard rate of 1.5:1 for all the pre-sentence custody. The Crown argues that Mr. Varela Granado should only be given 1:1 credit for the period following his arrest at Salsafest, on the basis that Mr. Varela Granado found himself back in custody due to his own bad conduct (namely his fail to attend court in breach of bail, flight from police when they tried to arrest him): R. v. Jeyakanthan, 2024 ONSC 1665.

[84] While it is true that Mr. Varela Granado was arrested at Salsafest for different reasons than the charges in this case, and the charges in this case were not the only thing keeping Mr. Varela Granado in custody for the period that followed, the reality is that the other gun charge was withdrawn, and none of the pre-sentence custody was used up on the guilty plea in relation to failing to comply and fleeing from police. In these circumstances, I agree with the defence that I must give Mr. Varela Granado the full Summers credit of 1.5:1 for this period (and indeed all the periods of pre-sentence custody).

[85] Defence counsel also seeks recognition for the harsh conditions of pre-sentence custody in the form of a six-month reduction in sentence. She recognizes that post R. v. Marshall, 2021 ONCA 344, harsh conditions of pre-sentence custody are properly viewed as a mitigating circumstance, and not a credit, but asserts that according a six month reduction in sentence would ensure they are adequately recognized while leaving the final sentence fit and appropriate. I agree that the conditions of pre-sentence custody must be recognized as a significant collateral consequence aggravating the sentence. But, as discussed above, I decline to attach a number. Instead I have taken the harsh conditions into account in fashioning a fit sentence.

[86] I total the presentence custody at 1023 days. When grossed up by the 1.5 multiplier, Mr. Varela Granado must be given credit of 1535 days. The total sentence I impose of seven years and 15 days equals 2570 days. 2570-1535 = 1035 days left to serve or 34 months and 11 days.

Ancillary Orders

[87] Sections 95, 320.14(1) of the Criminal Code, and s.5(2) of the CDSA are all secondary designated offences under s.487.051, leaving me with a discretion to impose a DNA order at the request of the Crown. The Crown made the request. Defence counsel did not object. In the circumstances of this offender and these offences, I am satisfied that it is in the best interests of the administration of justice to make a DNA order in this case.

[88] The conviction for the s.95 offence makes a weapons/firearms prohibition under s.109(1)(b) mandatory. Given that this is Mr. Varela Granado’s first conviction for a s.95 offence I make the order for ten years.

[89] I signed forfeiture orders in relation to the illegal handgun, the cocaine, and the proceeds of crime.

[90] Section 320.24(1) provides for a mandatory driving prohibition of at least one year, in addition to any other punishment. I order the mandatory minimum driving prohibition of one year. By operation of s.320.24(2) and (5.1), it commences at the time of sentence, thus to be effective I must add the period of custody. As a result I make the driving prohibition for 46 months (12 months plus the balance of 34 months to be served).

[91] Counsel made no submissions about the victim fine surcharge. The new, constitutional, provision applies to offences committed after July 22, 2019. Mr. Varela Granado has largely been in custody for the past two years thus I do not believe it would be appropriate to levy the victim fine surcharge. While he told me he started his own business this past fall, this is in preparation for his release. In other words, at present, the company provides hope, not cash. I do not want to do anything to dim this hope and waive the victim fine surcharge.

G. Roberts
Released: March 27, 2025