Decision Content
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R v Drescher, 2022 NWTSC 15 S-1-CR-2021-000079
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
-v-
MICHAEL DRESCHER
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Transcript of the Reasons for Sentence of the Honourable Justice S.H. Smallwood, sitting in Inuvik, in the Northwest Territories, on the 15th day of June, 2022.
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APPEARANCES:
T. Johnson: Counsel for the Crown
K. Arial: Counsel for the Defence
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Charges under s. 235(1) of the Criminal Code
I N D E X
PAGE
SENTENCE 18
Adjournment 19
THE COURT: Good morning. So on June 5, 2020 Michael Drescher stabbed his brother, Gregory Drescher six times at the family home here in Inuvik, Northwest Territories. One of those stab wounds pieced Gregory’s heart and caused his death.
When initially asked by the police, Michael denied any knowledge of what had happened. It was not until October 14, 2020 that he was arrested and charged in relation to Gregory’s death.
I will start out by saying I mean no disrespect to Michael Drescher, Gregory Drescher or their families, but because they share the same last name I will refer to them by their first names occasionally in this decision so it is not confusing.
Michael Drescher was charged with second degree murder initially, but yesterday he plead guilty to the included offence of manslaughter, contrary to Section 236 of the Criminal Code. My task today is to impose an appropriate sentence on Michael Drescher for this offence.
I have heard the submissions of counsel and read the cases and other materials that they have provided. Ms. Arial provided detailed information about Michael and his background yesterday. I would like to thank counsel at the outset for their work in resolving this case and for their submissions which have been very helpful to me in deciding upon a sentence.
More detailed facts of the offence are that on June 5 Michael was at Lanny Stuart’s residence here in Inuvik drinking. While there he said that he was angry at Gregory because of a fight between them the previous week which had resulted in an injury to Michael’s ribs. Michael said that he wanted to “pound his brother up.”
Around 11 p.m. Michael left the house and walked to the family home where their mother, Elizabeth and Gregory lived. Michael had stayed there the previous night. Michael arrived at the house and Gregory was the only one home. Gregory also had been drinking. And later it was determined that he had a blood alcohol level consistent with a high level of intoxication.
They got into an altercation shortly after Michael returned to the house. There is little evidence about how this altercation started, what it was about, who instigated the altercation or how a knife became a part of the altercation. There are a lot of unanswered questions.
But during that altercation Michael stabbed Gregory six times. There is no evidence that Michael received any significant injuries in this fight. The stab wounds were inflicted between 11:19 p.m. and 11:35 p.m.
The stab wounds were to Gregory’s neck, left thigh, left armpit, right abdominal area, which injured the bowel, left rear chest, perforating the left lung and the left front chest penetrating the thoracic cavity and ending in the right ventricle of the heart. The stab wound that penetrated the heart was the cause of Gregory’s death.
Elizabeth Drescher entered the house and went to her bedroom and changed. When she emerged, she became aware that Gregory was injured on the floor. She told Michael that they should call the cops. Michael said he could not be there, that he would be arrested or go to jail. Michael told Elizabeth to go and call an ambulance.
Elizabeth then went to a local convenience store and called the police. Michael left the residence. The police arrived at the home shortly thereafter and located Gregory on the floor and began to provide first aid.
Shortly after the police arrived, Michael and Elizabeth returned to the home. Michael lied to the police about his involvement in what happened and told them that he had come home and saw Gregory on the floor with blood around him.
Gregory was taken to the hospital. Michael and Elizabeth were given a ride to the hospital. Gregory was ultimately pronounced dead just after 1 a.m. on June 6, 2020. Michael later left the hospital and went drinking with friends.
The police investigated Gregory’s death over the next several months. They had reason to believe, based on the evidence, that Michael was responsible for Gregory’s death. During the investigation they became aware of two people to whom Michael had confessed to killing Gregory. Michael was arrested on October 14, 2020.
After his arrest Michael provided a statement to the police in which he admitted lying but denied responsibility for the death of Gregory. He initially blamed the death on his mother, Elizabeth, before eventually admitting to killing Gregory by stabbing him numerous times.
Michael told the police that a fight broke out between himself and Gregory which led to the stabbing. Michael said that he was scared for his life.
Those are the facts that were detailed in the Agreed Statement of Facts.
Turning now to the impact of this offence, victim impact statements were read in on behalf of Elizabeth Drescher’s niece, Michael’s former intimate partner and the mother of his two children, the spouse of Gregory and the daughter of Gregory. Gregory’s brother and wife also prepared a biography of Gregory and Gregory’s daughter provided a short statement which were both read in by the Crown yesterday.
It is apparent that the death of Gregory has affected many members of his family. He was a son, a brother, a husband, an uncle, a father and now a grandfather to a grandchild he will never meet. He liked to engage in traditional activities like fishing and hunting. He will be remembered for many things, including his laugh.
It was apparent yesterday from the victim impact statements and from the submissions of counsel that Gregory and Michael’s family have experienced a lot of trauma and grief, and the death of Gregory is another loss that they have to endure. As Michael said yesterday as a family they have lost so much.
The death of their father, Michael Sr. has been described as causing the family to fall apart. Their mother, Elizabeth, relapsed after many years of sobriety and began drinking again. Michael is now responsible for taking Gregory’s life, and Elizabeth has since died, after Michael was in custody.
It is a lot for any family to endure. Michael and his brothers Dwayne and Josh now have to live with this reality, and that extends to their families and other relatives. What the future looks like is hard to say. It depends on each member of this family, whether there can be forgiveness and healing.
Once the court process is over perhaps people will be able to grieve and begin to heal. As Ivy Mangelana said in her victim impact statement:
When court is finally over, I am hopeful that I will finally be able to grieve, because so long as court has gone on, I haven’t been able to grieve properly, not for Greg and not for Elizabeth.
I expect that what Ivy described and what she is experiencing is also experienced by others in this family.
No sentence I impose can bring back the life of a loved one or take away the grief and loss felt by those who are left behind. No sentence can ever make up for the life of Gregory. All I can do is impose a fit and appropriate sentence as best I can based on the applicable sentencing principles knowing that it may seem inadequate to some.
While this is a sad, tragic event that has affected this family there is also the public interest to be considered because this is unfortunately not the first time that this type of incident has occurred in the Northwest Territories. Deaths resulting from drunken fights occur far too frequently in this jurisdiction. Sometimes they involve knives, sometimes they do not.
Often these cases involve relatives or close friends, community members. The aftermath of these incidents are long-term and they affect family, friends, communities. As we have heard here there was alcohol abuse and dysfunction which are common elements in many of these offences, as well as so many offences of violence and other offences that occur in the Northwest Territories.
As Chief Justice Charbonneau stated in the case of R v Emile, 2008 NWTSC 50, at page 5:
Alcohol abuse, anger and violence cause ravages in communities all across the Northwest Territories and elsewhere. The solutions to the underlying problems will not come from the outside, from the police or from the courts, because the criminal justice system responds after the fact. It can do very little to get at the root causes.
Change will have to come from the community, from increased government resources devoted to alcohol and substance abuse treatment, aftercare and counselling, and from individuals taking the steps to address their problems, if not for themselves then for their family, for their children, for their futures to hopefully end the cycle of substance abuse and violence.
Until that happens, the Court must continue to sentence individuals like Michael Drescher who under the influence of alcohol and driven by a background of anger and dysfunction take another person’s life.
The sentencing principles that are applicable in cases like this are well established. The fundamental purpose of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of reasonability of the offender.
Section 718 of the Criminal Code speaks of the objectives of sentencing which include the denunciation of unlawful conduct and the harm done to victims or the community; to deter the specific offender and other people generally from committing crimes; to separate the offender from society, where it is necessary; to assist in the rehabilitation of offenders; to provide reparations for harm done to the victims or the community; and to promote a sense of responsibility in the offender and an acknowledgement of the harm done to victims or the community.
Many of the cases speak of the applicable sentencing principles in sentencing an offender for manslaughter. All of the factors must be considered, placing additional emphasis on the protection of the public, deterrence, denunciation and the rehabilitation of the offender.
Mr. Drescher is of Inuvialuit decent, and this also requires me to specifically consider Section 718.2(e) of the Criminal Code where all available sanctions, other than imprisonment, that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
The case law is clear, and the Supreme Court of Canada has stated several times how sentencing courts are to consider this section. I have considered the principles set out in those cases and the requirement to consider the unique systemic or background factors which may have played a part in bringing an Aboriginal offender before the courts and the types of sentencing procedures and sanctions which might be appropriate in the circumstances because of his background.
Looking at the circumstances of the offence, the offence of manslaughter is a serious offence, one of the most serious crimes in Canada. The maximum punishment for manslaughter is life imprisonment, but unlike murder there is no automatic sentence of life imprisonment and there is no mandatory minimum sentence of punishment.
The sentences imposed for manslaughter can vary widely, and this reflects the circumstances under which manslaughter can occur. Manslaughter has been described as covering:
A wide range of cases extending from those which may be classified as near accident at the one extreme and near murder at the other.
Different degrees of moral culpability attach to each along a continuum within that spectrum. It is precisely because a sentence for manslaughter can range from a suspended sentence up to life imprisonment that the court must determine for sentencing purposes what rung on the moral culpability ladder the offender reached when he committed the prohibited act.
And that’s from R v Laberge, 1995 ABCA 196 at paragraph 6.
Stabbing someone with a knife has been regarded as conduct that falls at the high end of moral blameworthiness:
Stabbing someone in the chest with a knife, even if it happens in a context where there has been arguing and fighting leading up to it, is conduct that falls at the high end of moral culpability and moral blameworthiness…. Stabbing someone through the chest is almost certain to cause serious harm or death to the person. When it does not, when it is an inch to the right or an inch to the left or the knife hits a bone and the victim ends up with a few stitches, that is the result of pure luck. It has nothing to do with the seriousness of the act.
R v Emile, 2008 NWTSC 50, at page 12 to 13.
The case of Emile, a case from the Northwest Territories was a similar case in that it involved a stabling to the chest that resulted in the death of the offender’s brother. It also involved multiple stab wounds.
In Emile there were four stab wounds whereas in this case there were six. Emile also had the seriously aggravating factor of the offender grabbing a knife and pursuing his brother down the street before stabbing him. Emile entered a guilty plea. He was a young indigenous man with a minor unrelated record. In that case a sentence of six years imprisonment was imposed.
I do not intend to review all of the cases that counsel have provided, but they generally demonstrate a range of five to six and a half years that have been imposed in this jurisdiction on a guilty plea for offences of manslaughter that have involved a stabbing. The case of Larson from Alberta Queen’s Bench also endorsed a range of five to six and a half years for this type of offence. In that case the sentencing judge also reviewed a number of the cases to determine that that was the appropriate range.
The case of Makpah in the Nunavut Court of Justice was also included in the sentencing cases that were provided. And in that case there was a sentence of four years that was imposed after trial in a case involving a stabbing. That case appears to be an outlier and not in line with the precedents established in this jurisdiction and Alberta.
Stabbing someone in the neck or in the chest, as occurred in this case carries with it the risk of serious bodily harm or lethal injury. Regardless of whether the act was impulsive or thought out carrying out the act of stabbing someone in the neck comes with it the real risk that death will result. Stabbing someone in the chest also brings with it a risk that serious bodily harm or death will result, both are very serious actions.
In the circumstances, Mr. Dresher’s moral blameworthiness is high and the gravity of the offence is serious. It is also important to remember that while Mr. Dresher is responsible for the death of Gregory that his moral culpability is for the offence of manslaughter and not that of murder.
In terms of mitigating factors, Mr. Dresher entered a guilty plea. In this case he has pled guilty to the included offence of manslaughter and not murder as was originally charged on the indictment. The Crown’s case, I am told, would not have inevitably resulted in conviction and there were triable issues, notably the issue of self-defence would have been in consideration.
A trial would have also been difficult for family members and the guilty plea saves the family and witnesses from having to endure a trial. So Mr. Dresher’s guilty plea has real value. He has taken responsibility and it provides certainty of result. And it is an expression of remorse.
In addition to the guilty plea which was entered Michael Dresher has also expressed his remorse and acceptance of responsibility in his words to the Court and to his family members yesterday. His plea removes any doubt about whether Michael Drescher is responsible for the death of Gregory. In the circumstances he will be given full credit for his guilty plea.
Looking at the circumstances of the offender, Michael Drescher is a 39-year-old indigenous male. I have heard from counsel about his background as well as read the letter from the psychologist that Michael saw while in custody. I will not repeat what counsel relayed yesterday, but it is apparent that Michael has had a difficult background, with family dysfunction, substance abuse, trauma and abuse.
The abuse of alcohol has been a longstanding and ongoing problem for Michael. There have been periods where he was in a relationship, had children and was employed, that he has been sober for periods of time. And he has engaged in traditional cultural activities. He has engaged in hunting, fishing and trapping activities with his family. And he has fond memories of engaging in fishing with his father.
While in custody he also attended counselling. He was reluctant to participate initially, but ultimately attended 17 sessions which demonstrates a commitment once he began to continuing on with the sessions. The letter from the psychologist demonstrates that Michael has many issues that he needs to address, but hopefully he gained something from those sessions and hopefully he will be able to continue with another psychologist or counsellor as that psychologist has left the custodial facility.
The letter also indicates that meaningful change for Michael will be a challenge and will require active work on his part, participation in programs and the support of programs in the community when he is released from custody. His initial reluctance to participate in counselling and cynical world view can be serious challenges to the process and to progress.
It is clear that Michael loves his kids, and giving his children a stable home was very important to him, but if you want to give your children a stable homelife and be a good father then you need to make changes. Children are not destined to live the life of their parents and do not have to endure the school of hard knocks to survive.
The negative experiences you have endured growing up in your family do not have to carry over to your children. You have been apart from them for a significant period of time, and unfortunately you are going to be apart from them for even longer. I hope that you are able to rebuild a relationship with them when you are released and that you use the time in custody to take and engage in programs that will assist you when you are released from custody.
Looking at the aggravating factors, there is a criminal record that was presented to the Court. Michael Dresher has a criminal record with 11 convictions between 2009 and 2020. Seven of those convictions are for offences against the administration of justice.
The last conviction was entered on May 19, 2020 when Michael was convicted of assault and two counts of failing to comply with release convictions. He received a sentence of 32 days imprisonment, essentially one of time served and 18 months of probation.
Overall, Michael Dresher’s criminal record is relatively minor and is limited given that he is now 39 years old, but he is not a first-time offender and it is apparent that he has a poor history of compliance with Court ordered conditions. The main significance of the criminal record is that it had only been about two weeks between the May 19, 2020 convictions when he was convicted of an offence of violence and when he committed this offence. So he was on probation and required to comply with a number of conditions, including that he keep the peace and be of good behaviour.
The Crown is seeking a sentence of six years' incarceration less credit for remand time, as well as a DNA order and a lifetime firearms prohibition order. The defence is recommending a global sentence of four and a half to five years, less credit for remand time to be followed by 18 months of probation with conditions aimed towards substance abuse treatment and counselling and grief counselling.
Michael Dresher has been in custody since his arrest on October 14, 2020, that equates to a little over 20 months in custody. Mr. Dresher will receive remand credit which will be deducted from the sentence that I impose today. As is standard, credit of one and a half days for every day spent in
pre-sentencing custody will be granted which amounts to about 30 months.
Starting with the ancillary orders, the Crown has sought a DNA order. Manslaughter is a primary designated offense pursuant to the DNA provisions of the Criminal Code. The collection of his DNA for inclusion in the DNA databank is mandatory, so there will be a DNA order.
Pursuant to Section 109 of the Criminal Code a firearms prohibition order is mandatory for a minimum of 10 years, the maximum possible duration being for life. The Crown is suggesting that the firearms prohibition order be imposed for life. The defence is suggesting that the minimum 10 years prohibition order is appropriate.
Having considered the circumstances of the offence and of the offender and looking at his prior criminal history and the circumstances of this offence which involved an offence of violence involving a knife, I am going to impose a firearms prohibition order in excess of the minimum, but I am not going to make it for life. It is going to be for a period of 15 years.
The defence is seeking an exception to the firearms prohibition order for sustenance purposes pursuant to Section 113 of the Criminal Code. The Crown made no submissions on that issue. It is apparent that Michael has engaged in the past in traditional activities like hunting and fishing, and those have been positive activities in his life, therefore I will grant the Section 113 exemption for sustenance purposes.
The defence is also seeking the victim of crime surcharge be waived and the Crown also made no submissions on that. In the circumstances, given the period of time that Mr. Drescher has been in custody, that he has not been employed and that the sentence that I will be imposing today to impose the victim of crime surcharge would be a hardship, so I am going to waive that surcharge.
All right. Please stand, Mr. Drescher. So taking into account the circumstances of the offence, taking into account your circumstances, including your Aboriginal status and the applicable sentencing principles for the offence of manslaughter I sentence you to a period of imprisonment of six years. You will receive credit of 30 months of remand time, leaving a sentence of three and a half years left to serve. You may have a seat.
All right. Is there anything else that I need to address, Counsel?
T. JOHNSON: Just one minor issue, Your Honour. There were a number of items seized by the RCMP. I have a draft forfeiture order for disposition of those items for Your Honour’s consideration.
THE COURT: Okay. And have you reviewed that, Ms. Arial?
K. ARIAL: Yes, it’s by consent. I signed it this morning.
THE COURT: Okay. All right. So I will grant that order as drafted, so that is fine. All right. Thank you, Counsel, and we will adjourn.
THE CLERK: All rise. I declare the Supreme Court closed.
(PROCEEDINGS CONCLUDED)
Veritext Canada, the undersigned, hereby certify that the foregoing pages are a complete and accurate transcript of the proceedings transcribed from the audio recording to the best of our skill and ability. Judicial amendments have been applied to this transcript.
Dated at the City of Toronto, in the Province of Ontario, this 28th day of July, 2022.
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