Citation No. 2017 MBPC 30
THE PROVINCIAL COURT OF MANITOBA
BETWEEN
Her Majesty the Queen
- and Andrea Giesbrecht

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Michael Bodner,
for the Respondent

Greg Brodsky, Q.C.
and Zachary Kinahan
for the Applicant
Decision on Motion delivered:
July 14, 2017

NON-PUBLICATION ORDER:
Note- there is an order of non-publication banning publication in
any document or the broadcasting or transmission in any way, of
the names or identities of the accused’s two living children.

M.P. Thompson, P.J.
Introduction
[1]

[2]

Section 11(b) of the Canadian Charter of Rights and Freedoms states that:
11.

Any person charged with an offence has the right...



b) to be tried within a reasonable time.

The Applicant brings a Motion alleging her section 11(b) Charter right to a

trial within a reasonable time has been violated and seeks a judicial stay of
proceedings pursuant to section 24(1) of the Canadian Charter of Rights and
Freedoms.

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[3]

In response, the Crown brings an application for short leave and for

summary dismissal.
[4]

This is my decision and reasons for that decision on this Motion and the

Crown’s application. I reserve the right to file further and more fulsome reasons
for this decision.
Timing of the Motion for Unreasonable Delay
[5]

In order to fully appreciate the timing of this defence Motion, some context

is required.
[6]

The Information against Giesbrecht was sworn on October 21st, 2014.

[7]

The trial commenced on April 18, 2016. One week was set. More time than

estimated was required. The trial continued on July 18 to 21 st, 2016 and to
expedite the trial I cancelled a previously scheduled week of vacation from August
29 to September 2nd in order to conclude the trial.
[8]

The evidence was completed on August 31 st, 2016 when the defence elected

not to call evidence and closed their case.
[9]

The trial was complex: the Crown called twenty-five witnesses, including

seven expert witnesses. The Crown requested an adjournment of two days to
prepare closing arguments: to Friday, September 2nd, 2016. Closing arguments did
not proceed as the Crown, Ms. Buors, was unavailable due to illness. As a result, I
ordered written submissions be provided by counsel and imposed deadlines for
filing with the Court. Closing arguments took place on October 5th, 2016.
[10] On October 5, 2016, I reserved my decision to provide a written Judgement.
On February 6, 2017, I delivered that Judgment convicting Giesbrecht.

The

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defence requested a Pre-Sentence Report and sentencing submissions were
adjourned to May 10, 2017 for preparation of that report.
[11] The May 10, 2017 sentencing date was adjourned at defence request because
defence counsel informed the Court he was unavailable until July 7 th, 2017.
Defence took responsibility for any delay in the period between May 10 and July
7th, 2017.
[12] On Friday, July 7th, 2017 sentencing submissions took place. At the end of
those submissions, at 3:30 pm, defence raised with the Court for the first time the
prospect of bringing a Motion for unreasonable delay.
[13] No Motion had yet been filed with the Court. Defence advised they were still
considering whether to file the Motion and would take the weekend to decide. I
advised defence I was proceeding to write my sentencing decision on the weekend
and that the Court intended to proceed to disposition on July 14, 2017, at 1pm, a
date confirmed for disposition since April 24, 2017.
[14] On Tuesday, July 11th, 2017 at 4:30 pm defence filed their Motion for
unreasonable delay.
[15] A last minute hearing was arranged for this morning, Friday, July 14 at 9:00
am.
[16] As we speak, the Motion is still not compliant with procedural requirements.
The Constitutional Questions Act requires that defence serve notice of any Charter
Motion on the Constitutional Law Branch, 30 days in advance of any hearing date
for a Notice of Motion. That notice requirement has been breached. Defence only
provided service to the Constitutional Law Section at 4:20 pm on July 11, 2017, 2
days notice, not the required 30.

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[17] This is not a new rule and defence counsel is very experienced.
[18] The transcripts of excerpts of proceedings and emails were only delivered to
me at 4:13 pm yesterday, July 13, 2017.
[19] Defence has ignored the Practice Directives for Contested Applications in
the Provincial Court of Manitoba, by filing this Motion without sufficient notice.
Analysis
[20] Proceeding with serious Motions means that counsel have a responsibility to
ensure they are filed in a timely way.

There are no emergent reasons why this

Motion was filed at the last possible moment.
[21] If this Motion was of such importance to the defence, it would not have been
withheld. All of these actions speak to the lack of seriousness with which the
defence has presented this Motion.
[22] Raising the specter of a Motion for unreasonable delay for the first time on
Friday at 3:30 pm, when a conviction was entered months ago, sentencing dates
have been set for months, and distracting a Judge writing an important and detailed
decision is unacceptable.
Decision
[23] Public confidence in the justice system is enhanced when important legal
issues are decided in a timely way and in accordance with rules set out by the law.
Ironically this is a Motion for delay that has been delayed and asks for further
delay.

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[24] In dismissing this Motion for delay I grant short leave to the Crown. I will
file further reasons for decision at a later date.
[25] The Motion is dismissed.

Original signed by:
THOMPSON, P.J.