Andrea Giesbrecht's lawyer wants conviction for disposing dead infant remains thrown out

The lawyer for a Winnipeg woman convicted of hiding the remains of six infants in a rented storage locker is trying to get the case dismissed.

Greg Brodsky has filed a motion to have the case thrown out because it has taken 33 months to conclude.

A Supreme Court ruling last year said legal proceedings can be presumed to be unreasonably delayed if they take more than 18 months in provincial court or 30 months in a higher court.

Andrea Giesbrecht was arrested in October 2014 after the remains were found in a U-Haul storage locker she rented.

Medical experts testified the infants were Giesbrecht's, were at or near full term and were likely to have been born alive.

She was convicted in February and a provincial court judge is to decide her sentence on Friday, but Brodsky says he will be in court that morning to try to have the case thrown out.

"I'm filing the motion because we think it's taken too long," Brodsky said Wednesday.

He said the courts did not set aside enough time to complete the trial.

"It was set down, then it was set down again, and it was set down again. They kept not adequately determining how much time is necessary," Brodsky said. 

"Whether it's heard or not on Friday is a matter that is not in my control. The transcripts ... of the proceedings have been ordered. Whether they're here or not by Friday, I don't know."

'It's an interesting proceeding': defence

In an interview with CBC, Brodsky wouldn't say why he waited until now to file a delay motion and didn't do so prior to Giesbrecht's conviction earlier this year.

"It's an interesting proceeding and what would be determined is if an inadequate time was allotted for the trial. On whose shoulders does the responsibility lie?" Brodsky said that responsibility "surely" does not rest on the defence.

A spokesperson for the Criminal Defence Lawyers Association of Manitoba said if a judge accepts the delay motion and enters a judicial stay of proceedings, the case will be thrown out.

"That's the end of the case and it's the equivalent of the charges never having been laid in the first place," said defence lawyer Scott Newman.

He said the only remedy for a stay of proceedings would be to challenge the decision in the Manitoba Court of Appeal.

"I think Manitobans need to be really concerned about cases taking more than two-and-a-half years to reach a conclusion," said Newman.

"That's not reasonable and the Supreme Court has really put their foot down and said it's not fair to victims, it's not fair to people accused with crimes, it's not fair to witnesses, it's not fair to anyone. We need to get better at the way that we prosecute and defend these cases and the net result will be multiple stays of proceedings for many people if we can't get our house in order," said Newman.

Cause of deaths a mystery

How the infants died remains a mystery. Medical experts testified the remains were so decomposed, a cause of death could not be determined. Giesbrecht did not testify and the defence did not call any witnesses.

Giesbrecht, 43, was convicted of six counts of concealing newborn remains — an offence that carries a maximum penalty of two years for each count.

At a sentencing hearing last week, Brodsky asked provincial court Judge Murray Thompson to spare Giesbrecht any more time in custody beyond the 168 days she spent between her arrest and when she was granted bail.

Crown attorney Debbie Buors asked for an 11-year sentence minus time served — one year for the earliest infant remains and two years for each of the other five, to be served consecutively.

The judge's decision Friday afternoon is to be live streamed by CBC and other media. He will first have to decide whether to hear immediately Brodsky's motion to dismiss, reject it outright or postpone matters and hear the motion at a later date.

According to a provincial spokesperson, 29 delay motions have been filed in Manitoba in 2017, including 12 in provincial court and 17 in Court of Queen's Bench.

Newman said the numbers are skewed because the government doesn't include cases where the defence files a delay motion and the Crown stays charges without going before a judge.

He said the only numbers that are tracked are cases where a hearing is held. But the province said it tracks all applications that are filed.

"We report on all applications that are filed.  We also report the number that are granted by the court.  We also indicate the number of matters that were resolved without a determination of the motion. This could be a stay by the Crown for delay or it could be some other reason that the motion was never resolved," a provincial spokesperson said.