Winnipeg woman imprisoned for concealing remains of 6 infants was trying to preserve them, lawyer says
Andrea Giesbrecht was sentenced to 8½ years behind bars after remains found in storage locker
A Winnipeg woman convicted of keeping the remains of six infants in a storage locker was preserving the bodies, not trying to get rid of them, her lawyer argued during an appeal hearing Wednesday.
Greg Brodsky was in the Manitoba Court of Appeal asking a panel of judges to toss the 8½ year prison sentence delivered to Andrea Giesbrecht, in a case the trial judge described as "unprecedented."
The 44-year-old was sentenced in July 2017 after being found guilty on six counts of disposing a body of a dead child with intent to conceal the delivery. A panel of judges are expected to deliver their written decision on her appeal within six months.
"We contend that her actions do not constitute disposal. Her products of conception were stored, kept and saved," Brodsky said at the Law Courts Building in Winnipeg.
If ditching the remains was her intention, she wouldn't have obtained a large, heated storage locker or prevented the contents from being auctioned off, after she failed to make her payments, her lawyer said.
Her decision to not cover her bills led U-Haul employees to open her storage unit in 2014 and find the remains.
"You say this is a case of simple storage," Justice Chris Mainella said in response. "The question that begs to me is why? Why would anyone store six bodies?" he asked.
'She may have wanted to visit'
"She may have had a facetious or not realistic expectation. She may have wanted to visit. She may have wanted to preserve [them]," Brodsky answered. "She doesn't have to explain."
But to justify her actions, Brodsky needs to provide some foundation for her motivations, Mainella countered.
"All we have here is a rental locker and six dead babies."
Giesbrecht, who was never called to testify during the trial, sat quietly at the corner of the courtroom during the appeal hearing, wearing a grey prison suit, blue sneakers and ankle shackles. She appeared to show no emotion.
Giesbrecht has offered no explanation for why she concealed the remains of six infants, leaving unanswered questions.
The trial was told the infants were Giesbrecht's, the children were likely born alive and they were at or near full term.
Mainella added an individual shouldn't escape punishment if that person is good at hiding bodies.
"Essentially, that's what you're saying, you can defeat this charge by burying your body in the backyard," he said to Brodsky. "You're still in possession of it."
Crown attorney Jennifer Mann said the law prohibits disposal "in any manner," and Giesbrecht's purported desire to keep the remains has no bearing on that.
Any act of concealing a child who has been born would be considered an act of disposal, says Crown. All births must be reported whether stillborn or not, Mann adds.—@glowackiCBC
She said storing the infants' remains in buckets and pails, alongside clothing, toys and garbage, is proof of discardment.
Brodsky reasoned that Giesbrecht was never granted the presumption of innocence by her trial judge nor police, and was sentenced as though the infants were alive at birth. Brodsky suggests the infants were likely stillborn.
Infants stillborn, lawyer argues
"I just don't see the air of reality that this was a self-induced abortion," Mainella said.
Brodsky argued the trial judge should not have dismissed his application that the case be tossed — presented the same week as the sentencing — because of the length of time it took.
Mainella said the trial judge, Murray Thompson, was likely frustrated the request was sprung on him at the last minute.
"Everything's about to be announced, it's all ready to go and now all of a sudden you're saying there's another act to this play?" Mainella said.
Brodsky's colleague, Zachary Kinahan, argued the imposed sentence is "demonstrably unfit."
He said the "maximum sentence is imposed multiple times over," which is two years per case, and jail sentences in similar matters rarely last longer than six months.
This is not a crime of violence says, defence. They are not sentencing a violent killer but a woman who was trying to hide her pregnancies.—@glowackiCBC
Similar cases, however, bear certain resemblances: the mother is a single, marginalized member of society who panics over what to do with the child, Mainella said. In this case, the appellant was mature, had experience with children and hid multiple remains, not just one, over a prolonged period, he added.
Kinahan said it was unfair of the sentencing judge to discount the letter from the Elizabeth Fry Society, which spoke highly of Giesbrecht's ability to reintegrate into society after her arrest. The note amounted to "advocacy," Thompson said.
"It's a true reflection of effort on someone who would know, and I'd even say know best, of where the individual is at," Kinahan said.
Cause of deaths not determined
The trial was unable to determine the time the infants died and what caused their deaths because the remains were too badly decomposed.
Thompson ruled that each of the remains represented a separate offence and Giesbrecht's moral culpability increased after the first crime. He sentenced her to six months for the first infant, one year for the second, and two years for each of the four other infants found, for a total of 9½ years. The sentence was later reduced by one year.
The panel of judges asked the Crown why Giesbrecht deserved harsher sentences over time when each concealment was fundamentally similar.
There was only one act of concealment.- Defence attorney Greg Brodsky
"It's contrary to the way we tell trial judges to do things," Justice Chris Mainella said.
Mann, however, felt the escalating consequences were appropriate.
"By the time you get to the sixth time, you've had a lot more opportunity to consider what you did and how you should behave in the future," the attorney said.
Brodsky said the trial judge shouldn't have considered the discovery of each remains as a separate crime.
"There was only one act of concealment."
Brodsky filed a notice of appeal of the conviction in the fall of 2017. He also sought bail for his client while she waited for the appeal hearing to be held, but was denied in April 2018.
At the time, Court of Appeal Justice Michel Monnin said the case was unprecedented and the "accused has been found guilty of a number of serious crimes."
With time already served factored in, Giesbrecht is expected to spend another six years and five months in prison if her appeal is unsuccessful.
Andrea Giesbrecht appeal: Full video of hearing