SUPREME COURT OF PRINCE EDWARD ISLAND. Citation: R. v. Dingwell 2012 PESC 13 Date: Docket: S1-GC-841 Registry: Charlottetown

Transcription

1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: R. v. Dingwell 2012 PESC 13 Date: Docket: S1-GC-841 Registry: Charlottetown Her Majesty the Queen - against - Dylan Alexander Dingwell Before: The Honourable Justice John K. Mitchell Appearances: Cyndria Wedge for the Crown Joel Pink, Q.C., and Andrew Nielsen for the Defence Place and Dates of Trial Place and Date of Verdict Charlottetown, Prince Edward Island November 21, 22, 23, 24, 25, 28, 29, 30 and December 1, 2011 Charlottetown, Prince Edward Island February 28, 2012 Place and date of Oral Decision on Charlottetown, Prince Edward Island Sentence April 20, 2012

2 ACCUSED SENTENCED TO FIVE AND A HALF YEARS FOR MANSLAUGHTER LESS 17 MONTHS CREDIT FOR TIME SERVED - purpose and principles of sentencing, s denunciation, rehabilitation, deterrence - degree of moral culpability - s. 719(3) credit for time served - s. 719(3.1) if circumstances justify CASES CITED: R. v. Dingwell, 2012 PESC 8; R. v. Brander PEISC, April 6, 2009, unreported; R. v. Ricky Lee Ford, PEIPC, May 1, 2001, unreported; R. v. Dunlap (1991), 101 N.S.R. (2d) 263 (N.S.C.A.); R. v. Drake, [1995] O.J. No (Ont.Gen.Div.); R. v. Cormier (1974), 9 N.S.R. (2d) 687 (N.S.C.A.);R. v. Kipling (1992), 83 Man.R. (2d) 6 (Man.C.A.); R. v. Stone, [1999] 2 S.C.R. 290 (S.C.C.); R. v. Hardy (1976), 29 C.C.C. (2d) 84 (Que.S.C.); R. v. M.(C.A.), [1996] 1 S.C.R. 500; R. v. Rezaie (1996), 112 CCC (3d) 97 (Ont.C.A.);. v. Morris, 2011 ONSC 5206; R. v. Desjarlais, 2012 NWTTC 02; Creighton, [1993] 3 S.C.R. 3 (S.C.C.); R. v. Laberge (1995), 165 A.R. 375; R. v. Henry, 2002 CarswellNS 102; R. v. McLeod (1994), 132 N.S.R. (2d) 118 (N.S.C.A.). STATUTES CITED: Criminal Code, R.S.C. 1985, Chap. C-46 Mitchell J.: [1] On February 28, 2012, after a nine-day trial, Dylan Alexander Dingwell was found guilty of manslaughter in the death of his older brother, Kyle Dingwell. Dylan Dingwell, then 22, shot his brother, 25, twice with an unregistered.38 caliber revolver. The maximum penalty for manslaughter is life imprisonment. The minimum sentence for manslaughter involving a firearm is four years. Circumstances of the Offence [2] The circumstances of the offence are outlined in my decision at R. v. Dingwell, 2012 PESC 8. What follows is a summary. [3] Kyle Dingwell bullied both his younger brothers, Dylan and Jarred. While his relationship with Kyle was marked with violence, Dylan considered Kyle to be his best friend. Kyle had a very serious drug problem. In the month preceding his death, he consumed a vast quantity and variety of drugs. Kyle supplemented his social assistance income by selling marihuana. The police found a kitbag containing marihuana valued at $16,000 and an envelope with $3,000 cash amongst Kyle s possessions. [4] Sunday, January 16, 2011, Dylan, Kyle and Jarred were all at the home of their mother, Donna Dingwell, at 5 Ridgemount Court. They all spent the night there. That evening Dylan took Kyle to the home of a mutual acquaintance where Kyle consumed a quantity of cocaine as Dylan played Xbox. The following morning, Kyle took Dylan s car without permission. When he returned to 5 Ridgemount Court,

3 Page: 2 Kyle was acting aggressively. Briefly put, he assaulted both Dylan and Jarred and threatened to bear spray Dylan s three-year-old son. [5] Dylan retrieved a gun from his kitbag and took it outside. He believed the assault was over. It was not. Kyle came out of the house yelling and holding bear spray in his hand. Dylan raised the gun. Kyle turned. Dylan shot him twice. One bullet, the fatal shot, entered Kyle s right side 20 centimetres below the nipple and exited his left side seven centimetres below the nipple. Kyle died approximately 12 hours later. The Offender [6] Dylan Dingwell was 22 years of age at the time of the offence and is 24 years old today. His father died when he was five years old, shortly after separating from his mother. Dylan seemed to be doing well until the age of 16. At that time he dropped out of school and went to live at a girlfriend s residence. He and his girlfriend developed serious drug issues. In 2005, Dylan, as a youth, was discharged from inpatient detox for disruptive behaviour and taken by the RCMP to the Sleepy Hollow Correctional Centre. On April 1, 2007, Dylan s girlfriend gave birth to their son Jordan. Dylan was following Kyle s footsteps in that he left home at a very early age (age 16), had issues with opiate addiction, and according to the pre-sentence report (p. 6) and the report of Kenneth L. Pierce, psychologist, was living a criminal lifestyle. [7] In 2007, Dylan was hospitalized after consuming 50 ecstasy pills. His secondary diagnosis from the Queen Elizabeth Hospital was polysubstance abuse, antisocial personality disorder traits, and suicidally (p. 12 PSR). [8] In 2010, he achieved his GED (general equivalency diploma). He also took a course at Maritime Drilling School, which he completed in This enabled him to work as a roughneck (p. 9 PSR). At one stage of his life, he was doing opiates to a peak of $200 a day (p. 11 PSR). On June 4, 2010, somewhere around the time Dylan came into possession of the.38 caliber revolver, Child and Family Services made a referral for Dylan to Men s Addiction Services. Dylan did not show up for his appointments, and his file was closed August 15, Dylan claims to have stopped using opiates in October 2010 when he was put on Suboxone by his family doctor. Suboxone helps him deal with his opiate addiction. His claim of stopping opiate use in October 2010 does not accord with the information contained at p. 11 of the pre-sentence report. That information indicates that his December 9, 2010 urine screen came back positive for oxycodone and cocaine. Dylan also failed to attend for his mid December followup appointment, and his doctor did not see him after December 9. Having nothing to verify Dylan s claims to having stopped opiate

4 Page: 3 use in late 2010, I am very sceptical. [9] While on remand, he has participated in anger management and in a weekly counselling session with Kenneth Pierce. He began, but failed to complete, an addiction awareness program. His behaviour towards the nurses at Sleepy Hollow Correctional Centre has not at all times been appropriate. Kenneth Pierce has been seeing Dylan Dingwell once a week since April He indicates that Dylan has come a long way during that time. He began with the attitude that he does not have much of a future except trying to be a smarter criminal (p. 4) but has progressed far beyond that. He now believes he needs an education and has plans, upon release, to spend more time with his son, upgrade his education, reconnect with his family, maintain his health and fitness, pay his outstanding fines, obtain work and build a new social network, join a community support group like AA and not associate with those in the criminal underworld. I commend him for his progress. Impact on the Victim and on the Community [10] Donna Dingwell, mother of Kyle, Dylan and Jarred, filed a victim impact statement. It is difficult to imagine the pain and grief she was and is experiencing at the loss of her first born and the sight of her second born in jail. She loves all her boys, Kyle, Dylan and Jarred, unconditionally and, as a good mother, sees very much the positive in all three of her sons. [11] Roma Dingwell, Dylan s Aunt, also filed a letter on Dylan s behalf. She has been a constant in the boys lives since the death of their father at the very least. She likewise sees the positive, and like Donna Dingwell, wants the family back together so as to heal, grieve and grow. [12] In addition to Kyle, there is, of course, another victim. That victim is the community. Prince Edward Island is a relatively quiet, peaceful place in which to live. It is, to say the least, very disquieting for the citizens of this City and the Province to learn of drug traffickers in their midst carrying guns. This shooting did not occur in the middle of the night in some seedy bar. It occurred in broad daylight in a quiet middle-class residential neighbourhood. The danger to the community of illegal guns and gun play in the midst of the community cannot be overstated. Positions of the Parties [13] The Crown is seeking a sentence in the range of six to eight years with credit for time served on a one to one ratio, as well as a s DNA order, a s. 109(1)(a) firearms order, and a s (2) forfeiture order. Defence takes no issue with the DNA order, the firearms order or the forfeiture order. Defence seeks the

5 Page: 4 minimum sentence of four years with credit for 460 days pre-trial custody on a ratio of one and one half to one (ie., 690 days), leaving a balance to be served of two years, eleven days. Case Law [14] Both Crown and Defence have filed an abundance of case law, which I have read. The sentences for manslaughter run the range from suspended sentence to life imprisonment, although most cases top out in the eight to ten-year range. [15] There are no cases of which I am aware in this Province dealing with sentencing for manslaughter involving a firearm. The Crown points to the Brander case (PEISC), Campbell, J., April 6, 2009, unreported, where the accused received a four-year sentence for killing his best friend with one punch and the Ricky Lee Ford case, PEI Provincial Court, May 1, 2001, where the accused was sentenced to seven years less time served where the accused caused the death of the victim in a drunken fight as Prince Edward Island cases of note. While the Crown acknowledges that both these accused had prior records and Dylan Dingwell does not, the Crown suggests that where a firearm is used, the sentence should be higher than in these two Prince Edward Island cases. [16] The Defence points out the mitigating circumstances and refers the court to several cases where the fact of the deceased s history of violence toward the accused reduces the sentence significantly (R. v. Dunlap (1991), 101 N.S.R. (2d) 263 (N.S.C.A.) - one year; R. v. Drake, [1995] O.J. No (Ont.Gen.Div.) - suspended sentence; and R. v. Cormier (1974), 9 N.S.R. (2d) 687 (N.S.C.A.) - suspended sentence). Defence refers as well to other cases to the effect that an impulsive act or immediate reaction to perceived or actual wrong will reduce the sentence (R. v. Kipling (1992), 83 Man.R. (2d) 6 (Man.C.A.), as will the mental illness of the accused, extreme stress or provocation (R. v. Stone, [1999] 2 S.C.R. 290 (S.C.C.), R. v. Hardy (1976), 29 C.C.C. (2d) 84 (Que.S.C.), poor family background or abuse as a child and self-defence as well as the age of the accused, and remorse. Mitigating and Aggravating Circumstances [17] Under mitigating circumstances, it is a fact that Dylan was 22 years of age at the time of the offence and 24 presently. He was, and remains, a young man. He has strong family support, especially from his mother. This will no doubt assist him in making a successful return to society. His brother bullied him through his life. Kyle was bigger and physically dominant. However, I hasten to add that this is not a case of battered woman syndrome. I have no evidence in that regard. The evidence that I do have is that both Kyle and Dylan left home at about age 16. Thus,

6 Page: 5 when Kyle left home, Dylan would be approximately 13. For the most part, thereafter, they lived separately, save for a period of time in Alberta for example. They were best friends. They both had drug addictions and mutual friends in the criminal underworld. Dylan advised the court that he sought his brother Kyle s approval. [18] Provocation is a mitigating factor as well, but even as to impulse killings such as those as a result of provocation, there are different degrees of moral culpability. I shall deal with moral culpability later. [19] Remorse is also a mitigating factor. I do not believe that Dylan Dingwell set out to kill his brother. I take his remorse at the death of his brother and best friend to be genuine. [20] Normally the fact that the accused has no prior record is an important mitigating factor. That is because no prior record is indicative of good past behaviour. That is not the case here. Dylan s own admission contained in the presentence report and in the Pierce report is that he was living a criminal lifestyle. His future vocational plans, according to the Pierce report, at April 2011 (three to four months post offence) was not to be a law-abiding, hard-working citizen but rather to be a smarter criminal. He was driving an unregistered car with phoney license plates. He had no driver s license and no insurance. The fact that he had no previous record appears to be indicative more of good luck than good lifestyle. [21] The one aggravating factor that stands out above all others is the sheer inevitability of this crime. From the moment that gun came into Dylan Dingwell s hands in June/July 2010, it was simply a matter of time before someone would be seriously injured or killed. [22] Dylan, around this time, failed to attend to his Child and Family Services referral to Men s Addiction Services. He was still using opiates. He knew Kyle was violent. He knew Kyle was badly addicted. He knew Kyle was dealing narcotics. He shared the gun with Kyle. His evidence at trial was that Kyle disposed of the fifth bullet sometime in the fall. He knew Kyle was angry at some unknown person who was calling Kyle a rat. Yet, he kept and shared this illegal weapon, possession of which in itself is a crime, with Kyle. He was very loose in his handling of the weapon as well. The weapon was stored overnight in a kitbag on the stairs in very close proximity to his three-year-old s toy gun. [23] Donna Dingwell describes Dylan as an intellect. While I do not have sufficient evidence before me to go that far, I did observe him on the stand and I do conclude that Dylan is a reasonably intelligent young man. Anybody with a

7 Page: 6 modicum of intelligence could foresee that a revolver in the hands of Dylan and/or Kyle Dingwell in the circumstances that existed from June 2010 to January 17, 2011, would result in death or grievous bodily harm to somebody. Dylan s statement to the court today that he sometimes kept the gun from Kyle is an acknowledgement of that fact. Principles of Sentencing [24] The purpose and principles of sentencing are set out in s. 718 to of the Code. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. Rehabilitation [25] Dylan Dingwell is still young. He has been taking positive steps on the road to rehabilitation according to the Pierce report. He acknowledges now that he needs a better education. He appears to have the ability to be successful in that regard. His vocational outlook now is not to be a smarter criminal, but rather to obtain solid employment. His future plans include reconnecting with his family and becoming a good father. He has, however, much work to do. I encourage him to spend the time while in custody positively in this regard. Denunciation/Deterrence [26] The late Chief Justice Lamer in R. v. M.(C.A.), [1996] 1 S.C.R. 500 at para. 81 states as follows:...the objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct.

8 Page: 7 In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law.... Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code. [27] In this case, crime committed with a firearm requires a denunciatory sentence in my view. Canadians recoil at the thought of handguns being fired in residential neighbourhoods. This case also requires a sentence which will deter others, specifically others involved, in the middle or on the periphery of the illegal drug trade, from the use of firearms. The capital city of our sister province, Halifax and its twin city of Dartmouth, has recently been experiencing an outbreak of gun violence caused, according to the media, by those in the drug trade, protecting themselves or settling scores. We must send a message out in this Province to deter that sort of conduct. Dylan may not have been directly involved in the drug trade in the sense that he was not trafficking drugs, he was most certainly involved indirectly. He bought bear spray (protection) and a machete with Kyle, he chauffeured him about, he took him to consume cocaine, they spent a lot of time together, and, most ominously, he shared an illegal gun with Kyle. Credit for Pre-trial Custody [28] Dylan Dingwell was arrested shortly after the shooting on January 17, 2011, and he has remained in custody since that time; a total of 460 days. Defence takes the position that he should be credited time served at a rate of one and a half to one. That is, he should receive credit for 690 days. The Crown position is that he should receive credit for 460 days only, being a one to one ratio. Prior to February 22, 2010, s. 719(3) of the Criminal Code read: In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence. [29] While this section appears to give a trial judge a discretion as to whether or not to credit any time served in pre-trial custody, a body of case law was developed to the effect that failure to give credit for pre-trial custody without good reason was an error of law reversible on appeal (R. v. Rezaie (1996), 112 CCC (3d) 97 (Ont.C.A.).

9 Page: 8 [30] Courts in this Province routinely granted credit of one and one half to one because of the fact that time spent in pre-trial custody does not qualify for earned remission and parole eligibility. For example, a person serving a three-month sentence may, by virtue of statutory remission, be released after having served twothirds of his sentence. Thus, 60 days pre-trial may be considered the equivalent of a 90-day sentence. [31] Some courts granted credit at a ratio of two to one. They did so to reflect, not only the loss of statutory remission but also the fact that in many situations, inmates in pre-trial custody do not have full access to educational, vocational and rehabilitation programs as do other inmates. Dead time, as inmates call it, is therefore more difficult. [32] February 22, 2010, saw s. 719(3) amended by the following words to the end of that section:... but the court shall limit any credit for that time to a maximum of one day for each day spent in custody. [33] The section was further amended by adding s. 719(3.1), which reads: Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [34] These amendments received much media attention, with provincial politicians bemoaning the extra cost associated with the amendments. But the fact remains that parliament made it clear that courts shall limit any credit to a maximum of one to one. That, it appears obvious, is the starting point. If circumstances justify it, the maximum may be raised to a ratio of one and one half to one. There is paucity of case law as to nature and circumstances that would justify deviating from the one to one credit. I agree with the reasoning in R. v. Morris, 2011 ONSC 5206, where that Court found that the loss of remission cannot justify an increased credit, as every person in pre-trial custody suffers a loss of remission. To grant enhanced credit because of loss of remission or anything else which is normally associated with pretrial custody would be to render the amendments to s. 719(3) utterly meaningless. [35] There must be something other than the usual circumstances experienced by all inmates in pre-trial custody. In R. v. Desjarlais, 2012 NWTTC 02, Gorin, P.C.J., found that the circumstances do not have to be exceptional. He looked at the fact of

10 Page: 9 statutory remission as being earned, and therefore not all inmates would receive benefit of statutory remission. Therefore, he found that affidavit evidence from the case manager within the correctional centre that housed the inmate to the effect that had the inmate been sentenced, she would have earned remission of one-third sentence to be sufficient circumstances to justify increasing the credit ratio. He states at para. 21, and I quote: In this matter the affidavit material has been very helpful. However, it may be that under similar circumstances it will be unnecessary for an Accused to file affidavit material in order for his position to be accepted. For example, the submissions of defence counsel on what he has been advised by the Accused's case manager may be sufficient. The rules of evidence are relaxed during the sentencing process. The unsworn statements of counsel, as officers of the court, are a frequent and necessary evidentiary source in many aspects of the administration of criminal justice, such as bail matters, adjournments and remands, sentencing and publication bans:... [36] Were I to consider the issue of good behaviour while in custody, I believe I would require an affidavit or at least something in writing from the institution. That is not to denigrate the position of counsel before the courts but it rather to get a full and impartial picture. [37] In any event, the only writing before me today is that of several incident reports from the Sleepy Hollow Correctional Centre. It is true, as defence points out, that some of them are trivial and none resulted in criminal charges. However, when a person on remand for killing another human being utters a threat, that is not something to be ignored. It appears to me plain from the pre-sentence report and the incident reports that the nurses at the institute did not see these matters as trivial. Likewise, having a device in one s cell to light contraband, even if that contraband is as innocent as tobacco, is not indicia of a prisoner on good behaviour. [38] The defence lists 12 conditions that Mr. Dylan Dingwell has encountered while on remand. It appears to me that these 12 conditions are no more or no less than what any other prisoner on remand experiences. One of them, that being no contact with brother Jarred, has as its rationale that Jarred was a witness to the crime. The authorities did not want the two brothers communicating before the trial. This is not unusual. After the trial, according to the pre-sentence report, Jarred was free to contact Dylan, which Jarred did on two occasions, but then he left the Province. I can therefore find no reasons therein to depart from the one to one credit. [39] However, in this case, there are certain post-trial delays that are certainly not the fault of Dylan Dingwell. The trial ended December 1. Dylan Dingwell had a right to expect a decision within a reasonable time. The decision was rendered February 28, a full three months after the trial. The reason for that delay was because

11 Page: 10 of Christmas holidays, the court s schedule (including two weeks when I was out of Province), and counsel s schedule which, to my recollection, included some holiday time. Thereafter, it took a further six weeks to obtain a pre-sentence report. I believe it would be unfair to deny Dylan Dingwell one and one half to one credit for these delays as they are through no fault of Mr. Dingwell. [40] It is pointless, however, to parse the days for the exact period of time for which to grant credit. Therefore, I will credit Dylan Dingwell on a one to one basis from the date of arrest, January 17, 2011, to December 31, 2011, a total of 349 days. For the 111 days since, being January 1, 2012, to today s date, I will credit him at a rate of one and one half to one for a total of 167 days. The total credit for time served then will be 516 days, which I will round to 17 months. Sentence [41] The primary reason that sentences for manslaughter run the range of suspended sentence to life is because of the wide variety of circumstances in which this crime can be committed. Those offenders with a greater moral culpability receive the greater sentences. In Creighton, [1993] 3 S.C.R. 3 (S.C.C.), McLaghlin stated at p. 375: Because manslaughter can occur in a wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing a minor offence, for example, properly attracts a much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender.... In R. v. Laberge (1995), 165 A.R. 375, at para 9: Unlawful acts may be divided into three broad groups: those which are likely to put the victim at risk of, or cause, bodily injury; those which are likely to put the victim at risk of, or cause, serious bodily injury and those which are likely to put the victim at risk of, or cause, life-threatening injuries. Only when the offender s proven mental state at the time of commission of the offence is evaluated in the context of the crime itself, in other words in terms of its relative degree of seriousness, is it possible to classify for sentencing purposes the degree of fault inherent in the crime committed. In my view, this case fits into the latter category. [42] The Defence respectfully submits that this case is closer to accident than to murder. I respectfully disagree. There is a razor thin line that separates this case

12 Page: 11 from second degree murder. This is not a case of an unfortunate punch where the accused intends a bloody nose but kills his victim, nor is this the case of a fist fight such as was the case in R. v. Henry, 2002 CarswellNS 102 (four years) and R. v. McLeod (1994), 132 N.S.R. (2d) 118 (N.S.C.A.) (four years). Neither is it a case of a stabbing where the accused may foresee more grievous bodily harm but does not foresee a likelihood of death. This is a case of a shooting at a range of about 10 feet. As previously indicated, this crime was inevitable from the moment the gun came into the hands of Dylan Dingwell. It may not have been inevitable that Kyle would die, but it was inevitable that someone would suffer grievous bodily harm or death sooner or later. [43] Dylan was an active enabler in Kyle s addiction and in his criminal lifestyle. As the pre-sentence report indicates, he followed Kyle s footsteps and they shared friends in the criminal underworld. Dylan chauffeured Kyle to his date with the half gram to gram of cocaine the previous night. Dylan was prepared to take Kyle wherever it was he wanted to go the next day. While Dylan says he knew nothing of Kyle s drug business, I do not believe him any more than I believe he innocently found the gun in Joe Ghiz Park. He was close to his brother and spent a great deal of time with his brother. I conclude he knows a lot more about his brother s drug dealings than he was prepared to admit. [44] I do not know why Dylan took the gun outside. I do know, and I found as a fact, that Dylan either loaded the gun before taking it outside or knew that it was loaded. He did not unload the gun when he had the opportunity. It would have been a very simple matter to keep the gun and the bullets separate if in fact the gun was not loaded. It would have been a very simple matter to unload the gun if in fact it was loaded. He chose however to take the gun outside knowing it was loaded. While I did find that provocation pushed him over the line, I confess it was a very fine line indeed. [45] Dylan Dingwell did intend to shoot and he did in fact shoot from close range knowing that this would cause bodily harm and was likely to cause death. [46] Taking all this into account, the mitigating factors and the aggravating factors, the potential for rehabilitation, the need for denunciatory sentence to denounce the use of firearms, the need for a deterrent sentence to deter especially those in the illegal drug trade and criminal underworld from using firearms and taking into account what I believe to be a high degree of moral culpability for Dylan Dingwell: [47] Mr. Dingwell, I know this may be one of the most difficult days in your life but you are today at a crossroads. You may use the months in custody to continue with the positive steps that you ve made and to become the man your mother thinks you

13 Page: 12 are and the Dad your son deserves, or you may use the time to become bitter and a smarter criminal. I urge you to choose the former, not the latter. [48] Mr. Dingwell, I sentence you to a period of five and a half years incarceration, that being 66 months less credit time served of 17 months, to leave you with 49 months left to serve. [49] As the Crown requested, there will be an order under s authorizing the taking of bodily substances for forensic DNA analysis. [50] There will be a firearms prohibition order pursuant to s. 109 of the Criminal Code of Canada whereby Dylan Alexander Dingwell is prohibited from possessing any firearm, cross-bow, restricted weapon, ammunition, explosive device, prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life. [51] As to the request for the forfeiture order, there is evidence at the trial that the police seized the sum of $3,000 Canadian currency together with several pounds of marihuana in a kitbag. I find that this money did not belong to Dylan Dingwell, but it did belong to his brother Kyle. Kyle was drawing social assistance and was involved, according, to the evidence heard at trial, in the drug trade. I have absolutely no doubt and I am convinced well beyond a reasonable doubt that the $3,000 is proceeds of crime. I hereby order, pursuant to s (2) of the Criminal Code of Canada that the sum of $3,000 is forfeited to Her Majesty the Queen to be disposed of as the Attorney General directs or otherwise dealt with in accordance with the law. April 20, J.