Questions of spousal privilege delay Giesbrecht trial again

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This article was published 21/07/2016 (3396 days ago), so information in it may no longer be current.

The question of spousal privilege forced another delay in the trial of a Winnipeg mother accused of hiding the remains of six dead babies in a storage unit.

Andrea Giesbrecht, 42, is charged with six counts of concealing a child’s body. The remains of five boys and one girl were found inside a McPhillips Street storage unit in October 2014.

Her husband, 43-year-old Jeremy Giesbrecht, testified against her in court Wednesday, saying he didn’t know she’d rented a U-Haul storage locker and that he wasn’t aware she had ever carried six fetuses to term. Previous testimony based on DNA evidence has indicated it is highly likely Andrea and Jeremy are the parents of all six of the infants found in the storage locker, and that the babies were likely born alive, at or close to full term.

But Jeremy’s testimony was halted Thursday during cross-examination by defence lawyer Greg Brodsky because of confusion around whether, if Jeremy agreed to answer some questions about conversations he had with his wife, he could legally be forced to answer all questions about communication during their marriage.

Jeremy told court he would not waive his spousal privilege, but would still answer questions from the defence. Crown prosecutor Debbie Buors argued Jeremy’s answers could constitute a waiver of spousal privilege, opening the door for the Crown to question him again about any communication he had with his wife.

Until last year, an accused’s spouse could not be forced to testify against them except in cases of family violence or child sexual assault. That changed with the immunity-erasing Victims Bill of Rights Act in 2015. But spouses who are forced to testify still have spousal privilege, which means they don’t have to tell court about any communication they had with their husband or wife during their marriage.

The Crown’s argument to Provincial Court Judge Murray Thompson Thursday was that Jeremy should not be allowed to pick and choose which questions he would answer about his communication with his wife, saying an Ontario case that dealt with solicitor-client privilege could be applied here. The judge asked for a written submission on the case law before continuing the trial, noting it would be “untenable” to expect Jeremy to get legal advice that same morning for “an issue that doesn’t come up every day.”

After the judge left the courtroom on a break, Jeremy called out from the witness stand, “Anybody in here a lawyer that can give me advice?”

The trial, which has already seen lengthy scheduling delays since it began in April, will now resume Aug. 29. Three experts, including one from out-of-province, are already scheduled to testify at that time, and Jeremy Giesbrecht will be called to finish his testimony later that week.

Judge Thompson expressed concern that the trial, initially set for only five days, has not been able to meet any of its deadlines so far and may require additional trial dates after the beginning of September.

Brodsky brought up his client’s right to be tried within a reasonable time, as well as his concern about having proper time to present defence arguments.

“You can’t have it both ways, Mr. Brodsky. Your client’s demanding a right to trial within a speedy period of time; I’m trying to provide a reasonable framework for that and provide you an opportunity to provide me with submissions if you choose to,” he said, adding, “If we don’t complete this in the last week of August, we could be looking at a substantial delay and that’s in no one’s interest,” the judge replied.

A conviction on the offence of concealing a child’s body carries a maximum sentence of two years for each count.

katie.may@freepress.mb.ca

Twitter: @thatkatiemay