R v Giesbrecht, 2015 MBCA 88

Citation: R v Giesbrecht, 2015 MBCA 88 Date: 20150928 Docket: AR15-30-08453 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HER MAJESTY THE QUEEN ) N. J. Whitling ) for the Appellant Respondent ) ) C. R. Savage - and - ) for the Respondent ) HARVEY JOHN GIESBRECHT ) Chambers motion heard: ) September 10, 2015 (Accused) Appellant ) ) Decision pronounced: ) September 28, 2015 MICHEL A.

MONNIN JA [ 1 ] This is an application for leave to appeal sentence and, if leave is granted, for judicial interim release pending the hearing of the appeal . [ 2 ] The accused seeks to be released pending his appeal of a sentence of nine months’ incarceration plus restitution of $85,567.72 following his plea of guilty to 14 counts of fraud under $5,000 and seven counts of fraud over $5,000. [ 3 ] The accused and the Crown provided the sentencing judge with a joint recommendation that the accused be sentenced to a term of two years less one day to be served conditionally, followed by three years of supervised probation.

A term of the conditional sentence order was that the accused would make payments of $600 per month to be applied against the restitution amount ordered. At the sentencing hearing the sentencing judge informed counsel that he had difficulties with the joint recommendation and the matter was adjourned to another date for further submissions.

Ultimately, the judge refused to accept the joint recommendation, stating that he did not consider that it was the result of a true plea bargain and that the circumstances of the case required the imposition of institutional incarceration. [ 4 ] In order for me to consider granting the accused his release he must first convince me that leave to appeal should be granted. To do so, he must convince me that he has an arguable case to present on appeal.

In order to do this, the accused must demonstrate that the sentencing judge committed an error in principle, or failed to consider a relevant factor or overemphasized one or more of the appropriate factors or pronounced an unfit sentence.

See R v Gill , 2010 MBCA 92 . [ 5 ] If I grant leave, pursuant to section 679(4) of the Criminal Code , the accused must then establish, in addition to his appeal having merit, that his remaining in custody will cause unnecessary hardship, that he will surrender himself into custody in accordance with a release order, and finally, that his detention is not necessary in the public interest. [ 6 ] The only issue before me was whether or not the accused had an arguable ground of appeal. [ 7 ] The accused argues that the sentencing judge erred in law in rejecting the joint recommendation, as contrary to what the sentencing judge stated, it was in fact a true plea bargain.

He also argues that the resulting sentence imposed was unfit. [ 8 ] The Crown argued that the accused in reality gave up nothing by his pleading guilty to the charges and that the Crown would have had little difficulty in proving its case had the accused not pleaded guilty.

To a degree, this argument is somewhat contrary to what the Crown advanced at the sentence hearing. [ 9 ] I have been persuaded that the accused has an arguable case, and accordingly, I am prepared to grant leave. [ 10 ] As there is really no issue as to the accused’s attendance in Court in the future and as it is not against the public interest that he be released, I would grant the accused the judicial interim release that he seeks on the following conditions: that he be released on his own recognizance in the amount of $1,000 along with a surety of $25,000; that he reside at 5005-45 Avenue in Drayton Valley,

Alberta, and must not move without prior permission of the Court; that his appeal factum be filed by October 30, 2015; that he keep the peace and be of good behaviour; and that he attend personally in Court at the hearing of the appeal and as further directed. The accused shall report to the Clerk of the Court of Appeal, Room 330, Law Courts Building, Winnipeg, no later than ten minutes before the scheduled hearing of the appeal. J.A.