Court File and Parties

Court File No.: CR-22-40000062 Date: 2025-09-12 Ontario Superior Court of Justice

Between: His Majesty the King – and – Thomy Baez-Eusebio

Counsel: Joshua Tupper, for the Crown John Fennel, for the Defence

Heard: June 23 and September 12, 2025 and in writing

Before: Pinto J.

Sentencing Decision

Overview

[1] On March 26, 2025, I convicted Mr. Baez-Eusebio of two offences:

a) Unauthorized possession of a loaded restricted or prohibited firearm, contrary to s. 95(1) of the Criminal Code of Canada; and

b) Possession of 4.8 grams of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the Controlled Drugs and Substances Act (CDSA).

[2] The Crown seeks a total sentence of seven to eight years imprisonment for the offences for which Mr. Baez-Eusebio is currently being sentenced. As explained below, credits are no longer available to Mr. Baez-Eusebio, and he has roughly 25 months remaining on a sentence that he received in June 2025. If I agreed with the Crown's lower position of 7 years for the within offences and given the remaining previous sentence, Mr. Baez-Eusebio would have to serve another 109 months or 9 years and one month in jail. However, the Crown acknowledges the application of the totality principle and submits that a further reduction of 12 to 18 months may be appropriate. Reducing the 109 month sentence by 18 months would result in a sentence of 91 months, or 7 years and 7 months.

[3] Conversely, the Defence submits that Mr. Baez-Eusebio should receive a sentence of 2 years and 9 months for the within offences which, when added to the 25 months he must serve for his previous sentence, results in him having to serve another 58 months or 4 years and 10 months in prison.

[4] For the reasons that follow, I sentence Mr. Baez-Eusebio to 4-1/2 years imprisonment for the offences for which he is currently being sentenced. Combined with the remaining 25 months that he must serve arising from his sentence for convictions in June 2025, he must serve a remaining sentence of 6 years and 7 months. Certain ancillary orders shall also apply.

Circumstances of the Offences

[5] The Toronto Police Service conducted an investigation under the Liquor Licence Act, R.S.O. 1990, c. L.19, that a commercial unit located in a strip mall in Toronto was operating an illegal bar.

[6] A Justice of the Peace authorized a search warrant for the commercial unit under the Provincial Offences Act, R.S.O. 1990, c. P.33. The warrant permitted night searches.

[7] On September 9, 2019 at 1:43 a.m., several police units executed the search warrant. Mr. Baez-Eusebio, along with four other individuals, were located in the unit. All occupants were detained upon execution of the search warrant. A handgun was located in plain view in a large rubber box directly behind the bar where Mr. Baez-Eusebio was standing.

[8] Mr. Baez-Eusebio was searched incident to arrest. Police located keys to a Honda Civic on his person and the corresponding vehicle was found parked near the entrance to the unit. The Honda Civic was sealed and towed to a police facility. Police obtained a Criminal Code search warrant for the vehicle. Police found a satchel on the front passenger seat of the Honda Civic containing two firearm-related prohibited devices. Police also found quantities of cocaine, fentanyl, and crystal methamphetamine packaged for sale.

[9] On March 24 and 25, 2025, I heard and dismissed two Defence applications: R. v. Baez-Eusebio, 2025 ONSC 2168. The first, seeking disclosure of the Information to Obtain (ITO) in respect of the search warrant under the Liquor License Act; and the second, a Charter application alleging breach of Mr. Baez-Eusebio's section 8 rights.

[10] Upon dismissal of the applications, the parties entered into an Agreed Statement of Facts (ASF). The parties did not provide additional evidence and I convicted Mr. Baez-Eusebio of the firearm possession and P4P offences. The Crown withdrew the remaining charges on a 13-count indictment.

[11] In the ASF, it was agreed that on September 9, 2019, Mr. Baez-Eusebio was not the holder of any Firearms Acquisition Certificate, Licence, or Registration Certificate that would allow him to legally possess a firearm.

[12] It was also agreed that he had possession of:

a) A Loaded Restricted / Prohibited Glock type Firearm with Ammunition;

b) A 15 Round Over Capacity Magazine with Ammunition;

c) A 31 Round Over Capacity magazine with Ammunition; and

d) An Automatic Pistol Switch for a Glock Handgun which turns a semi-automatic handgun into a fully automatic handgun.

[13] Additionally, it was agreed that he had possession of the following drugs for the purpose of trafficking:

a) 37.96 grams of powder cocaine;

b) 22.91 grams of crack cocaine;

c) 4.8 grams of fentanyl; and

d) 0.48 grams of methamphetamine.

Circumstances of the Offender

Pre-Sentence Report

[14] A Pre-Sentence Report (PSR) was prepared by Angela Larke, a Probation and Parole (P&P) officer, dated June 19, 2025.

[15] Mr. Baez-Eusebio was 21 years old at the time of his arrest in September 2019, and 27 at the time of sentencing. He is a Canadian citizen who is Black.

[16] Mr. Baez-Eusebio was born in the Dominican Republic on February 26, 1998. He came to Canada with his father at the age of three. His parents were briefly married but later separated for reasons unknown to him. His mother remained in the Dominican Republic. He is not aware of any abuse in his parents' relationship. Between the ages of three and twelve, he maintained a relationship with his mother through regular phone calls and visits every few years. He has several half-siblings on his mother's side, none of whom share the same father. Government records reveal that he has five paternal siblings and four maternal siblings. His full sibling (sister) resides in Toronto and they maintain a close relationship. He maintains contact with his mother through telephone and describes their relationship as positive.

[17] Growing up, Mr. Baez-Eusebio moved around a lot, living in the Black Creek neighbourhood of Toronto, Brampton, and Etobicoke. Eventually his father bought a house in the Jane and Finch area of Toronto. His father was strict and due to their frequent disagreements over "school, friends and habits", he would often stay with his older female cousin. He also slept in abandoned cars and staircases to avoid his father. His father remarried and the cousin reported that there was no room for Mr. Baez-Eusebio in the father's home. Mr. Baez-Eusebio's current relationship with his father is improved. The father has moved back to the Dominican Republic and is no longer married.

[18] Mr. Baez-Eusebio was attracted to the rap scene in Toronto in his high school years. Gun violence was prevalent in this environment. He smoked marijuana and was around negative peers. He reported negative interactions with police due to his race. He does not view police as helpful which contributed to a lack of trust of them. Yet, he also had a positive experience with a police officer who referred him to an employment and education support program.

[19] Mr. Baez-Eusebio has three children from different mothers currently aged seven (girl), five (boy) and four (girl). He has a positive co-parenting relationship with the mother of his eldest daughter. He has full custody of his son who resides with the maternal grandmother. He is not in frequent communication with his younger daughter.

[20] Mr. Baez-Eusebio attained a Grade 10 level of education. He attended multiple elementary schools and believes this instability contributed to his behavioural changes. He recalled having an Individual Education Plan (IEP), and suspects that he may have had an undiagnosed Attention-Deficit Hyperactivity Disorder (ADHD), although he could not recall further details. He recalled fights with other Black kids because they would say that he was Spanish, not Black. During high school, he relocated for a year and a half to the Dominican Republic to attend a baseball academy. He had intentions to play professional baseball but returned to Toronto as he got discouraged.

[21] He completed a six-week job skills and training program in or around 2020 to 2021 and another program in 2023. He earned a small amount of income by making rap videos online. He is no longer involved in the music scene due to the negative environment surrounding it. Prior to his incarceration, he worked in the concrete field.

[22] At the time of the PSR, he was on a waitlist while in custody to complete his high school education. However, at present he is working towards completion of a high school literacy credit. Long term, he is motivated to support at-risk youth focused on violence and gang prevention.

[23] Mr. Baez-Eusebio stopped smoking marijuana daily in 2020 due to health issues (he would throw up after smoking). No other problematic drug or alcohol use is reported. He reported no formal mental health diagnosis, although he believes he has experienced PTSD, depression, and anxiety. He recalled shootings and robberies taking place in communities where he grew up both in Toronto and in the Dominican Republic. He has completed some counselling sessions while in custody including for anger management, parenting, and stress.

[24] Ministry records indicate that Mr. Baez-Eusebio has ten misconducts while in custody between September 2021 and March 2025 for commits / threatens assault on another. He nevertheless denied that he is an aggressive person and described the correctional institution as an environment where inmates are often pitted against each other and where fights are normal.

[25] Ministry records indicate that while Mr. Baez-Eusebio was under community supervision, his reporting was inconsistent, and he frequently failed to report as directed.

[26] Mr. Baez-Eusebio was polite and co-operative in his meeting with the P&P officer. In the officer's assessment, Mr. Baez-Eusebio presented with risk factors for re-offending including poor decision-making, association with negative peers, exposure to violence, access to firearms and drugs, possible undiagnosed mental health or emotional challenges, and limited problem-solving abilities. The officer believes that Mr. Baez-Eusebio has the capacity to achieve if motivated to change and learn from his current situation.

Criminal Record

[27] Mr. Baez-Eusebio did not have a criminal record at the time of his arrest in September 2019. However, since that time he has accumulated a significant criminal record.

[28] In October 2019, he was convicted for assault, possession of a weapon, and uttering threats. He received a suspended sentence, probation for 12 months, and a discretionary weapons prohibition order for 5 years.

[29] In December 2022, he was convicted of conspiracy to commit an indictable offence. He received a sentence of 900 days but was credited for 880 days due to pre-sentence custody. He also received a discretionary weapons prohibition order for life.

[30] On June 27, 2025, he pleaded guilty, was convicted, and received a sentence on four counts as follows:

a) Possession for the purpose of trafficking (cocaine): 42 months minus 22 months pretrial credits resulting in him having 20 months remaining to serve as of the sentencing date;

b) Possession of property obtained by crime: 3 months concurrent;

c) Breach of a s.117 prohibition order: 3 months consecutive; and

d) Breach of a recognizance: 4 months consecutive.

[31] The ASF in respect of Mr. Baez-Eusebio's guilty plea for his June 27, 2025 conviction was made an exhibit to this sentencing proceeding.

Sentencing Position of the Crown

[32] The Crown seeks a total sentence of seven to eight years imprisonment for the current offences based on:

a) Four to five years imprisonment for possession of the loaded prohibited weapon s. 95 charge; and

b) Two to three years imprisonment for the P4P fentanyl charge under the CDSA, served consecutively to the firearms sentence.

[33] In terms of ancillary orders, the Crown seeks:

a) A DNA order under s. 487.051 of the Criminal Code;

b) A weapons prohibition order for life under s. 109 of the Criminal Code; and

c) A forfeiture order under s. 462.37 of the Criminal Code (proceeds of crime), s. 16 of the CDSA (drugs), and s. 491 of the Criminal Code (weapon, magazines, ammunition, fire switch).

[34] The Crown recognizes Mr. Baez-Eusebio as an individual who has experienced hardship and who comes from a disadvantaged background. Yet, Mr. Baez-Eusebio's decision to possess a loaded prohibited weapon with loaded magazines and a firearm switch must be met with a denunciatory sentence given the clear danger posed by such a weapon. Mr. Baez-Eusebio was in a bar with four other individuals. It is clear that he was carrying the weapon as a tool of the drug trade given his possession of fentanyl, cocaine, and methamphetamine.

[35] The Crown submits that there is no evidence that Mr. Baez-Eusebio's drug possession was a product of any addiction. Notwithstanding Mr. Baez-Eusebio's criminal record, the Crown acknowledges that because of the timing of his prior conviction, the s. 95 offence should be treated as his first firearm conviction.

[36] The Crown relies on several authorities to support its sentencing request: R. v. Mensah, 2024 ONSC 2796; R. v. Barreira, 2024 ONSC 4682; R. v. Charles, 2021 ONSC 1229; R. v. Gagnon, 2017 ONSC 7470.

Sentencing Position of the Defence

[37] The Defence submits that the appropriate sentence for Mr. Baez-Eusebio is four-and-a-half years for the present convictions.

[38] The Defence relies on the sentencing decisions in R. v. Bowen, Dale, 2024 ONSC 6189, and Mensah, where the offenders received sentences of less than five years.

[39] The Defence presented a letter of support from a Duty Chaplain at the Toronto East Detention Centre. The chaplain worked with Mr. Baez-Eusebio consistently during the latter's incarceration and described his faith practices and desire to be an active and productive member of the community following his release. The Defence also provided five Certificates of Completion / Achievement in respect of Mr. Baez-Eusebio completing workshops or activities including in the areas of Self Accountability, Effective Parenting, Use of Leisure Time, and Managing Stress. All these programs were completed in 2025.

[40] The Defence also presented a letter of support from Tyiesha Morrow-Flint. She was previously in a romantic relationship with Mr. Baez-Eusebio but is now a friend. Ms. Morrow-Flint wrote that Mr. Baez-Eusebio had a difficult upbringing but has shown a strong desire to better himself and his future. She expressed appreciation for him being there for her during some of the most difficult periods in her life. She indicated that Mr. Baez-Eusebio talks often about his children and the importance of setting a better example for them.

[41] The Defence does not take issue with the ancillary orders requested by the Crown.

Applicable Case Law

[42] In Bowen, Dale, the offender was sentenced to 4 years and 8 months prior to credits after pleading guilty to possession of a loaded restricted firearm, possession of a firearm while prohibited, and possession of 23.5 grams of cocaine for the purpose of trafficking. He was 39 years old at the time of sentencing and 36 at the time of the offences. He was found with a loaded firearm tucked into the waistband of his pants as he was leaving Yorkdale mall in Toronto. He also had a satchel containing ammunition and cocaine in his car which was parked at the mall. He was under a firearms prohibition order at the time. He was exposed to violence and drug trafficking from a young age. He was shot twice, once causing serious injury. He came before the court with plans for employment, a strong support system, eight certificates from educational programming, and expressed that he no longer believed a gun would protect him – which was his prior motivation for owning one. Presser J. issued a sentence of 2 years for the loaded restricted firearm, 2 years for the drug possession, and 8 months for breach of the weapons prohibition order.

[43] In Mensah, two brothers were sentenced by Schabas J. Dennis Mensah was 27 years old at the time of sentencing and 23 when the offences occurred. He was found guilty of multiple offences, including possession of a loaded restricted firearm, and occupying a vehicle containing a restricted firearm, in addition to two offences under the CDSA for trafficking fentanyl and carfentanil. After searching his car, police seized over 10 grams of fentanyl and carfentanil. After applying the principles of Kienapple, the four overlapping firearm counts were reduced to convictions on two counts: one under s. 94 of the Criminal Code (occupying a vehicle with a restricted firearm) and one under s. 95 (possession of a loaded restricted firearm). Dennis Mensah had no prior record and an Enhanced Pre-Sentence Report disclosed significant social and personal mitigating factors, including evidence of anti-Black racism and socioeconomic hardship in his upbringing. The court noted these contexts citing Morris and accepted that they lessened his moral blameworthiness. Schabas J. determined that the appropriate global sentence was 4½ years' imprisonment. He imposed a 4½-year term on each of the two firearm counts, to be served concurrently. There was no separate sentence pronounced for the drug counts, which were considered in the totality analysis.

[44] Marvin Mensah, Dennis's older brother, was 31 years old at sentencing. He was found guilty of drug offences arising from the police searching his apartment: possession of fentanyl and carfentanil for trafficking and possession of the proceeds of crime. Police seized nearly 113 grams of carfentanil. Marvin, like Dennis, was a first offender with strong familial support, stable housing and employment, and his own child. Marvin was sentenced to a global term of 5½ years' imprisonment. This was apportioned as 5 years on the drug trafficking count and 6 months on the proceeds count. The 6-month term for Count 6 (proceeds) was ordered consecutive to the 5-year term on Count 1 (trafficking), for a total of 66 months.

[45] In R. v. Ansah, 2021 ONSC 6339, the offender was 21 at the time of sentencing by Baltman J. He had been only eight months past his 18th birthday at the time of the offence. He was convicted of two offences arising from a police raid: possession of a loaded firearm (a handgun seized on his premises) and possession of 85 grams of fentanyl for trafficking. Ansah had no prior criminal record. An Enhanced Pre-Sentence Report revealed that he had been raised in a socioeconomically disadvantaged, predominantly Black community and had experienced racism, factors which the court treated as significant mitigation. His supportive family ties and community support were also noted. Considering the objectives of denunciation and deterrence (especially given the crisis of gun violence and fentanyl trafficking), the court fixed separate terms and then applied totality. The appropriate sentence for Ansah, after totality adjustment, was 6 years: 2 years for the firearm offence and 4 years for the fentanyl offence, to be served consecutively. The court expressly recognized Ansah's youth and first-offender status, supportive family, and the social‐context evidence of racial disadvantage as important mitigating factors while being mindful of the location and handling of the firearm and the profit driven motive for the crime as aggravating factors.

[46] In R. v. Thompson, 2025 ONSC 2768, the offender was 24 at sentencing and 21 at the time he committed the offences. He pleaded guilty before Stribopoulos J. to three charges: trafficking in cocaine, possession of cocaine for trafficking, and possession of a loaded restricted firearm. Police evidence at arrest showed that over three controlled buys, he sold a total of about 10.44 grams of cocaine, and a search of his residence uncovered 124.76 grams of cocaine, along with tablets and drug paraphernalia. The handgun (a Glock 27 .40 cal.) with ammunition was found inside his bedroom. Thompson, who had no criminal record, was Black, came from a supportive family, and had stable employment, and presented as remorseful. The court was guided by the unique circumstances and considerations in sentencing youthful first offenders outlined in R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110. Having addressed both the firearms and drug aspects, the court settled on a global sentence of 30 months' imprisonment. Stribopoulos J. explicitly noted Thompson's youth, first-offender status, guilty plea, and strict bail conditions as mitigating factors balanced against the aggravating factors surrounding his offences, including his possession of a large quantity of cocaine, his online advertising, and selling of the substance to an undercover police officer, and the possession of the loaded firearm.

[47] In R. v. Barreira, 2024 ONSC 4682, Stribopoulos J. sentenced an offender following a trial for possession of a firearm without a license, possession of a restricted firearm together with accessible ammunition without authorization, and possession of 16.5 g of cocaine. The offender was 38 years old at the time of sentencing, 34 at the time of the offences with an extensive criminal record, but one that ended when he was 23 years old. He had three children and one on the way, was in a new relationship, and had various health issues. Stribopoulos J. found that the appropriate sentence was five years but credited the offender for restrictive bail conditions and pre-sentence custody such that the sentence was 35 months.

[48] In R. v. Mitchell, 2025 ONSC 2695, the offender was 29 when the offences occurred and 32 at the time of sentencing before Nishikawa J. He was convicted of multiple offences: Counts 1–5 were firearm offences (unlicensed possession of a prohibited Glock handgun and related devices), Count 6 was breach of a weapons prohibition order, and Counts 7–9 were drug offences (312.67 g of cocaine for trafficking, 2.67 g of fentanyl, and possession of the proceeds of crime). The handgun was loaded and found under the driver's seat of Mitchell's car. At the time, he was subject to a s. 110 order banning weapons. Mitchell had no prior criminal record. A pre-sentence report and references described him as a devoted father with a loving extended family. He grew up with ADHD and overcame significant trauma (his mother died when he was 21), factors acknowledged as part of his life history. Letters of support portrayed him as mature, remorseful, and committed to making positive changes. The court gave Mitchell a total sentence of 4 years and 7 months' imprisonment. It was apportioned as 32 months for Counts 1–5 (firearm offences), to be served concurrently with each other; 5 months for Count 6 (breach), to be served consecutively to Counts 1–9; and 18 months for Counts 7–9 (drug and proceeds offences), concurrent with each other but consecutive to Counts 1–6. Mitchell's youth and lack of record, his supportive family environment, and the harsh conditions in custody (as evidenced by the lengthy credit granted) were considered mitigating. The court noted that consecutive sentences for firearm offences and breach were necessary under public safety principles. Still, it adjusted the total sentence downward in recognition of his relatively limited culpability and good prospects, while keeping in mind the aggravating factors in this case: the improperly stored and unlawfully processed semi-automatic handgun while Mitchell was under a weapons prohibition order.

[49] R. v. Griffiths, 2019 ONSC 358, affirmed 2021 ONCA 302, is a factually similar decision to the case at bar. Griffiths was 22 at the time of the offences. He was convicted after trial of possession of a loaded prohibited firearm, possession of cocaine and crack cocaine for trafficking, breach of probation, and breach of a lifetime firearms prohibition. Police observed a hand-to-hand drug sale near a schoolyard. On a different day, after he left a meeting at the John Howard Society, officers arrested Griffiths in a laneway. They removed a handgun from his waistband that had a round chambered and 11 in the magazine. They found 34.29 g of crack and powder cocaine and $440 cash in his satchel. The sentence reflected denunciation and deterrence for guns-and-drugs: four years for the firearm plus one year consecutive for the drug-trafficking offences. For the breach offences, the court imposed one year consecutive for breaching the firearms prohibition order and six months for the probation breach concurrent to keep totality at six years. The global sentence was six years, with 22 months' pre-sentence custody credit (Summers) leaving four years and two months to serve, with ancillary orders.

[50] In R. v. Garcia-Reeleder, 2025 ONSC 4336, the offender plead guilty to five offences: possession of a loaded restricted firearm, possession of a prohibited device (a fire-selector/"auto sear"), possession of cocaine for trafficking (P4P), possession of a firearm while prohibited, and dangerous operation of a conveyance. While bound by a prior release order that prohibited him from possessing weapons, he fled a traffic stop, made a U-turn, ran a red light, crashed, and ran from the scene with his passenger, leading to a foot pursuit and arrest. Police found a Glock 26 in his pant leg loaded with 32 rounds in the magazine and one in the chamber; the pistol had an auto-sear that made it fully automatic. Nearby, officers recovered a blue bag containing a second loaded magazine and drug-trafficking paraphernalia, and a search of the vehicle yielded $33,260 and 165.4 g of powdered cocaine. Garcia-Reeleder admitted possession for the purpose of trafficking. He was 24 at sentencing. The court accepted that he had no criminal record at the time of these offences, and noted his background: a supportive family; a father with a Master of Science who was working on a PhD; and his completion of high-school credits while in custody. He had left school after Grade 11 following his father's death; he was single and had no children. The court imposed a global sentence of five years' imprisonment, apportioned as: two years for the s. 95(1) offence; one year consecutive for the prohibited device; one year consecutive for P4P cocaine; one year consecutive for possession while prohibited; and six months concurrent for the dangerous-operation count.

Mitigating and Aggravating Factors

Mitigating Factors

[51] Mr. Baez-Eusebio is now 27, but he committed the offences for which he is being sentenced at the young age of 21.

[52] He experienced a difficult childhood being raised primarily by one parent for most of his life. His parents separated when he was very young. His mother moved back to the Dominican Republic. He moved around a lot leading to educational and social instability. Growing up, he was exposed to living environments with high gun, gang and drug violence.

[53] He did not finish high school, attaining a Grade 10 level of education. He had an IEP, and believes he may have undiagnosed ADHD. He experienced racism as a Black man, but also from other Black youth who considered him Spanish, given his Dominican background.

[54] Mr. Baez-Eusebio's career and life plans were upended when his training at a baseball academy in the Dominican Republic ended. He has had limited employment and he became disenchanted with the rap scene which had him running with the wrong crowd. His interactions with police have been negative leading him to believe he has been treated unfairly because of his race.

[55] Mr. Baez-Eusebio does not appear to have any substance abuse issues. He was on a waiting list to complete his high school credits. He has a close relationship with his sister, and he maintains a positive relationship with his mother in the Dominican Republic. His relationship with his father, who is also in the DR, is improved. He has been in a relationship with his current girlfriend for the past two years.

[56] He has three children aged 7, 5 and 4 from different mothers. He appears to be a present father to two of his children, being actively involved in their lives.

[57] While Mr. Baez-Eusebio did not plead guilty, once I dismissed his disclosure and Charter applications, he reached agreement with the Crown on an ASF, effectively avoiding a full-blown trial.

[58] Finally, Mr. Baez-Eusebio was cooperative with the P&P officer. The Crown considers him to have decent rehabilitative potential.

Aggravating Factors

[59] In September 2019, Mr. Baez-Eusebio was found with a dangerous, loaded, prohibited weapon at his feet in a public setting, a private "booze can" that was likely operating as an illegal bar. It may have been in the early hours of the morning and but this was still a public setting. Just outside the bar in his Honda Civic, Mr. Baez-Eusebio kept two firearm-related prohibited devices. Police also found quantities of cocaine, fentanyl, and crystal methamphetamine packaged for sale. It is evident that Mr. Baez-Eusebio was carrying the firearm as a tool of the drug trade: R. v. Nur, 2015 SCC 15, [2015] 1 SCR 773, at paras. 25 and 28.

[60] That he was found in possession of three controlled substances, including fentanyl and cocaine, which are lethal drugs, is an aggravating factor.

Sentencing Decision

[61] I am guided by the principles of sentencing that are set out in ss. 718, 718.1, and 718.2 of the Criminal Code. The sentence must be proportionate to the gravity of the offence and degree of responsibility of the offender. An appropriate sentence is one that reflects a realistic appraisal of the offender's prospects for rehabilitation, his individual and family circumstances, and the principle of restraint.

[62] I adopt the comment of Nishikawa J. in Mitchell:

[28] The Supreme Court of Canada has observed that s. 95(1) of the Criminal Code casts its net over a wide range of potential conduct. Most cases within the range may well merit a sentence of three years or more, but conduct at the far end of the range may not: R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 82, aff'g 2013 ONCA 677, 117 O.R. (3d) 401. In Nur, the Supreme Court upheld a 40-month sentence in relation to a 19-year-old first offender for one count of unlawful possession of a firearm under s. 95(1).

[29] The Ontario Court of Appeal has held that "[m]ost s. 95 offences will attract a penitentiary term.": R. v. Smickle, 2014 ONCA 49, 306 C.C.C. (3d) 351, at para. 19. For individuals who bring guns into public spaces, a sentence of greater than three years is generally imposed: R. v. Mohaidin, 2021 ONCA 122; R. v. Camara, 2019 ONSC 115, aff'd 2021 ONCA 79, 400 C.C.C. (3d) 490.

[30] Handguns are a menace to society. When located with drugs, they are properly seen as tools of the trade: R. v. St. Clair, 2018 ONSC 7028, at para. 47. As the Court of Appeal stated in R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 68:

Gun crimes involving the possession of loaded, concealed firearms in public places pose a real and immediate danger to the public, especially anyone who interacts with the gun holder…. A person who carries a concealed, loaded handgun in public undermines the community's sense of safety and security. Carrying a concealed, loaded handgun in a public place in Canada is antithetical to the Canadian concept of a free and ordered society. [Citations omitted.]

[63] The offences for which Mr. Baez-Eusebio is now being sentenced occurred in September 2019. Although he has subsequent convictions in October 2019, December 2022, and June 2025, they are not prior convictions to his September 2019 offences so they cannot be treated as aggravating circumstances pursuant to "Lord Coke's principle": see R. v. Wisdom, 2024 ONSC 4047, at para. 42. However, it would be irrational not to recognize the relevance of repeat offending to the prospect of rehabilitation or even the need for incapacitation. This is so, regardless of the order in which the convictions occurred: R. v. R.M., 2020 ONCA 231, at paras. 6, 31-37; Wilson, at paras. 65-67 quoted in R. v. M.V., 2023 ONCA 724, at para. 65 and cited in Wisdom, at para. 40.

[64] Overall, I would describe Mr. Baez-Eusebio's prospects of rehabilitation as guarded. I cannot put it more optimistically than that, because it will take a strong commitment to further programming and discipline for him to adopt a more pro-social mindset. Ministry records indicate that he has had 10 misconducts while in custody. When Mr. Baez-Eusebio was previously under community supervision, his reporting was inconsistent with frequent failures to report. Subsequent to his September 2019 criminal conduct, he has been convicted in October 2019, December 2022, and June 2025. Yet, Mr. Baez-Eusebio is in his mid-twenties, the father of three young children. He has family support, particularly through his relationship with his biological sister.

[65] Prior to consideration of the principle of totality, I find that a penitentiary sentence of 5-1/2 years for Mr. Baez-Eusebio is appropriate. The total is based on a sentence of 3-1/2 years for the s. 95 firearm offence, and 2 years for the P4P fentanyl offence, served consecutively.

[66] Courts have held that sentences for possession for the purpose of trafficking should be consecutive to the sentences for gun offences in that they have "different legally protected interests": see R. v. Crevier, 2015 ONCA 619, 330 C.C.C. (3d) 305, at paras. 127-130; R. v. Mark, [2018] O.J. No. 270 (S.C.J.), at para. 27; R. v. Graham, 2018 ONSC 6817, at para. 43, aff'd 2020 ONCA 692 as discussed in R. v. Wisdom, 2024 ONSC 4047, at para. 34.

[67] I find that a 3-1/2-year sentence for the firearm offence is warranted, given the circumstances, which include the ready access of a loaded handgun, with a fully loaded magazine and switch in a nearby car. While the quantity of fentanyl found (4.8 g) was limited, its presence, along with 60.87 g of cocaine (in powder and crack form), and 0.48 g of methamphetamine, confirms that Mr. Baez-Eusebio was trafficking in deadly drugs and had armed himself fully in connection with that criminal activity. This was not a situation where the firearm was stored in a private residence. The offender in Mitchell was older than Mr. Baez-Eusebio and received a lower total sentence of 4 years and 7 months, but Mitchell had no previous criminal record. Similarly, the offender in Griffiths received a sentence of 5 years for the combined s. 95 and drug offences, but the quantity of drugs (34.29 grams of cocaine) was less, and did not include fentanyl or methamphetamine. In Ansah, the offender received a 6-year sentence for the offence, but the quantity of fentanyl, 85 grams, was significant, resulting in a 4-year sentence for the drug offence alone. I also find that a 5-1/2 year sentence for Mr. Baez-Eusebio is consistent with Garcia-Reeleder, since the offender there received a 5-year sentence but had plead guilty and had no prior criminal record.

[68] I would distinguish Bowen, Dale, where the offender received a sentence of 4 years and 8 months, on the basis that the case involved a guilty plea, and the quantity of cocaine was 1/3 of what Mr. Baez-Eusebio possessed. In Mensah, Dennis Mensah received a 4 1/2-year sentence, but he had no prior criminal record. The other brother, Marvin, received a 5-1/2 year sentence for the possession of carfentanil alone. Marvin was not convicted of possession of a firearm.

[69] Before reaching a conclusion on Mr. Baez-Eusebio's ultimate sentence, I must take into account the principle of totality.

[70] In the case of R. v. England, 2024 ONCA 360, Zarnett J.A. wrote as follows:

The totality principle "requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender": R. v. M.(C.A.), [1996] 1 S.C.R. 500, at para. 42. A "combined sentence must not be unduly long or harsh in the sense that its impact simply exceeds the gravity of the offences in question or the overall culpability of the offender": R. v. Johnson, 2012 ONCA 339, [2012] O.J. No. 2255, at para. 18.

[71] I understand that, presently, Mr. Baez-Eusebio has roughly 25 months left to serve for the sentence he received in June 2025. He used up all his credits in the previous sentencing process so none apply now. If I imposed a sentence of 5-1/2 years, given that he has 25 months left to serve from his previous sentence, he would have to serve 7 years and 7 months more in custody. I find that such a cumulative sentence is excessive. I would reduce the overall sentence that I am imposing by one year, so that Mr. Baez-Eusebio must effectively serve a remaining sentence of six-years and seven months in prison.

[72] At his sentencing submissions, Mr. Baez-Eusebio addressed the court and expressed a strong desire to work towards rehabilitation, so that he could contribute to society, and be a better father to his children.

[73] I have kept in mind the principle of restraint, the socio-economic and racialized background of Mr. Baez-Eusebio, as well as the importance of denouncing the pernicious crimes of firearm and illegal drug possession. I have also weighed the fact that Mr. Baez-Eusebio is the father of three young children, and his absence from their life due to his incarceration will likely affect them profoundly.

Conclusion

[74] In conclusion, Mr. Baez-Eusebio is sentenced to:

a) Three-and-a-half years in custody, for unauthorized possession of a loaded restricted or prohibited firearm, contrary to s. 95(1) of the Criminal Code of Canada; and

b) One year in custody, for possession of 4.8 grams of fentanyl for the purpose of trafficking, contrary to s. 5(2) of the CDSA, consecutive to the s.95(1) sentence.

[75] In terms of ancillary orders, Mr. Baez-Eusebio is subject to:

a) A DNA order under s. 487.051 of the Criminal Code;

b) A weapons prohibition order for life under s. 109 of the Criminal Code; and

c) A forfeiture order under s. 462.37 of the Criminal Code (proceeds of crime), s. 16 of the CDSA (drugs), and s. 491 of the Criminal Code (weapon, magazines, ammunition, fire switch).

[76] Mr. Baez-Eusebio requested, and I ordered, the waiver of the victim fine surcharge.

Pinto J.

Released: September 12, 2025