R. v. Giesbrecht (E.H.), (2008) 231 Man.R.(2d) 77 (CA)

• Judge: Steel, Hamilton and Chartier, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: March 06, 2008
• Jurisdiction: Manitoba
• Citations: (2008), 231 Man.R.(2d) 77 (CA);2008 MBCA 102

R. v. Giesbrecht (E.H.) (2008), 231 Man.R.(2d) 77 (CA);

      437 W.A.C. 77

MLB headnote and full text

Temp. Cite: [2008] Man.R.(2d) TBEd. SE.015

Her Majesty The Queen (respondent) v. Earl Hugh Giesbrecht (accused/appellant)

(AR 07-30-06776; 2008 MBCA 102)

Indexed As: R. v. Giesbrecht (E.H.)

Manitoba Court of Appeal

Steel, Hamilton and Chartier, JJ.A.

September 16, 2008.

Summary:

In November 1991, the accused was found guilty of first degree murder. He was sentenced to life imprisonment without eligibility for parole for 25 years. The accused appealed the conviction. On May 15, 1992, before the appeal was heard, the Criminal Code was revised and s. 742.1 (now s. 745.1) was added. Section 742.1 provided that a person who committed murder when they were under the age of 18 became eligible for parole after serving five to 10 years of their life sentence. At the time that the offence was committed, the accused was aged 17. Notwithstanding the change in the law, the only issues raised on the appeal related to the defence of insanity and the severance of counts.

The Manitoba Court of Appeal, in a decision reported at 85 Man.R.(2d) 69; 41 W.A.C. 69, dismissed the appeal. The accused obtained leave to the appeal.

The Supreme Court of Canada, in a decision reported at 168 N.R. 191; 95 Man.R.(2d) 309; 70 W.A.C. 309, dismissed the appeal. Fifteen years after being sentenced and 13 years after the Supreme Court of Canada dismissed the appeal, the accused applied for an extension of time to file a notice of appeal from sentence and raised the issue of s. 742.1.

The Manitoba Court of Appeal, per Scott, C.J.M., in a decision reported at 220 Man.R.(2d) 152; 407 W.A.C. 152, dismissed the application. The accused appealed.

The Manitoba Court of Appeal dismissed the appeal.

Criminal Law - Topic 4909

Appeals - Indictable offences - Procedure - Notice of appeal or application for leave to appeal - Time for filing or serving - Section 678(2) of the Criminal Code provided that "The court of appeal or a judge thereof may at any time extend the time within which notice of appeal or notice of an application for leave to appeal may be given." - The Manitoba Court of Appeal stated that both a single judge and the court had jurisdiction to grant an extension under s. 678(2) - The rules of practice confirmed the concurrent jurisdiction and set out in which circumstances the application was to be heard in chambers or before a panel - Case law from a variety of provinces supported the conclusion that a full panel did not have the jurisdiction to review a decision of a single judge in chambers - However, in Manitoba, jurisdiction to review was available where it could be shown that the chambers judge committed a "demonstrable and decisive error" - Besides such an occurrence, an accused could initiate a second application when the initial application was dismissed, but special circumstances had arisen, new material has been filed or the interests of justice demanded a reconsideration - See paragraphs 9 to 24 and 34 to 40.

Criminal Law - Topic 6208

Sentencing - Appeals - Variation of sentence - Extension of time to appeal - [See Criminal Law - Topic 4909 ].

Criminal Law - Topic 6208

Sentencing - Appeals - Variation of sentence - Extension of time to appeal - In 1991 the accused was convicted of first degree murder and sentenced to life imprisonment without eligibility for parole for 25 years - In May 1992, before the hearing of his conviction appeal, s. 742.1 (now s. 745.1) was added to the Criminal Code - Section 742.1 provided that a person under the age of 18 who committed murder was eligible for parole after serving five to 10 years - The accused was aged 17 at the time of the offence - The issue of s. 742.1 was not raised on the conviction appeal - The appeal and a further appeal to the Supreme Court of Canada were dismissed - In June 2005, the accused applied for an extension of time to appeal his sentence and raised the issue of s. 742.1 - The Court of Appeal, per Scott, C.J.M., dismissed the application, finding that both the accused and his counsel were aware of s. 742.1 prior to his conviction appeal and no satisfactory explanation was given why nothing happened for a decade after the dismissal of his appeals - At best, the accused had an intermittent desire, rather than a ongoing intention, to appeal - While the lack of a proper explanation was not automatically fatal, the explanation for such a long delay had to be plausible and the circumstances truly exceptional - The accused failed to establish that it was in the interests of justice that an extension be granted - The Manitoba Court of Appeal dismissed an appeal - The fact that Scott, C.J.M., did not accept the accused's uncontested affidavit evidence as providing an adequate explanation did not amount to a demonstrable and decisive error - He was entitled to accept as much or as little of the evidence as he wished - There was no misapprehension, clear mistake of fact or error in communication - No error existed that was objectively verifiable and demonstrable on its face - More was required than disagreeing with the judge's weighing of the evidence or the inferences that he drew - The accused's argument that it was not in the interest of justice to deny him relief based on an error of counsel should have been made before Scott, C.J.M., and did not change the fact that there was no demonstrable or decisive error - See paragraphs 25 to 33.

Cases Noticed:

R. v. Harness (G.J.) (2005), 367 A.R. 259; 346 W.A.C. 259; 200 C.C.C.(3d) 431; 2005 ABCA 245, refd to. [para. 1].

R. v. Johnson (O.) (2001), 281 A.R. 368; 248 W.A.C. 368; 155 C.C.C.(3d) 506; 2001 ABCA 161, refd to. [para. 9].

R. v. Zurowski (D.) (2003), 327 A.R. 332; 296 W.A.C. 332; 175 C.C.C.(3d) 494; 2003 ABCA 174, refd to. [para. 9].

R. v. O'Malley (W.) (1997), 96 B.C.A.C. 236; 155 W.A.C. 236; 119 C.C.C.(3d) 360 (C.A.), refd to. [para. 12].

R. v. Butchko (C.L.) (2004), 257 Sask.R. 41; 342 W.A.C. 41; 192 C.C.C.(3d) 552; 2004 SKCA 159, refd to. [para. 12].

R. v. Aggek (D.I.) (1999), 209 N.B.R.(2d) 16; 535 A.P.R. 16 (C.A.), refd to. [para. 12].

R. v. Walker (1978), 46 C.C.C.(2d) 124 (Que. C.A.), refd to. [para. 12].

R. v. Mohammed (1989), 61 Man.R.(2d) 192; 52 C.C.C.(3d) 470 (C.A.), not folld. [para. 13].

R. v. Henry (1989), 61 Man.R.(2d) 227 (C.A.), not folld. [para. 13].

R. v. Scherba (A.) (2001), 146 O.A.C. 99; 155 C.C.C.(3d) 512 (C.A.), refd to. [para. 19].

R. v. Lightning (M.J.), [1993] A.J. No. 404 (C.A.), refd to. [para. 19].

R. v. Bédard, 2007 QCCA 642, refd to. [para. 19].

R. v. Stojanovski (A.) (2002), 179 B.C.A.C. 287; 295 W.A.C. 287; 2002 BCCA 679, refd to. [para. 19].

R. v. Gelz (1990), 55 C.C.C.(3d) 425 (B.C.C.A.), refd to. [para. 19].

R. v. Gillespie (G.D.) (1997), 115 Man.R.(2d) 161; 139 W.A.C. 161 (C.A.), consd. [para. 20].

R. v. Bouchard (A.) et al., [2000] Man.R.(2d) Uned. 30 (C.A.), consd. [para. 23].

R. v. Miller (K.S.) (2000), 139 B.C.A.C. 68; 227 W.A.C. 68; 147 C.C.C.(3d) 156; 2000 BCCA 329, refd to. [para. 34].

R. v. Coté (P.J.) (1990), 111 N.B.R.(2d) 404; 277 A.P.R. 404 (C.A.), refd to. [para. 35].

R. v. Audy (No. 1) (1977), 34 C.C.C.(2d) 228 (Ont. C.A.), refd to. [para. 36].

R. v. Dunbrok (1978), 44 C.C.C.(2d) 264 (Ont. C.A.), refd to. [para. 36].

R. v. Coulombe (O.) (1988), 15 Q.A.C. 76; 64 C.R.(3d) 58 (C.A.), refd to. [para. 37].

R. v. Lamontagne (Y.) (1994), 66 Q.A.C. 204; 95 C.C.C.(3d) 277 (C.A.), refd to. [para. 37].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 678(2) [para. 5].

Authors and Works Noticed:

Ewaschuk, Eugene E., Criminal Pleadings and Practice in Canada (2nd Ed.) (2008 Looseleaf Update), vol. 3, para. 23:3100 [para. 38].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), pp. 81 to 84 [para. 10].

Counsel:

G.B. Gammon, for the appellant;

R.A. Saull, for the respondent.

This appeal was heard on March 6, 2008, before Steel, Hamilton and Chartier, JJ.A., of the Manitoba Court of Appeal. Steel, J.A., delivered the following judgment on September 16, 2008.