Citation: R v Giesbrecht, 2018 MBCA 45 Date: 20180424 Docket: AR17-30-08875 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice William J. Burnett Madam Justice Jennifer A. Pfuetzner BETWEEN: HER MAJESTY THE QUEEN ) B. F. Bonney ) for the Appellant Respondent ) ) C. R. Savage- and - ) for the Respondent ) MARK DOUGLAS GIESBRECHT ) Appeal heard and ) Decision pronounced: (Accused) Appellant ) April 24, 2018 Burnett JA (for the Court): [1] The accused appeals his conviction for dangerous driving, assault with a weapon and mischief under $5,000, contraryto sections 249(1)(a), 267(

a) and 430(4) respectively of the Criminal Code. [2] The accused was sentenced to 15 months’ incarceration on each charge, to be served concurrently. If the convictionappeal is dismissed, the accused seeks leave to appeal sentence. [3] The trial judge found that the accused drove a truck onto the hood and roof of the victim’s car while the victim wassitting in the front seat. The accused testified that it was an accident, that when he started the truck it was in gear and that it lurchedforward onto the victim’s car.

The trial judge rejected the accused’s testimony that his actions were accidental. [4] With respect to the conviction appeal, the accused says that the trial judge failed to properly apply the test in R vW(D), (SCC), [1991] 1 SCR 742, and that he rendered an unreasonable verdict. [5] With respect to the sentence appeal, the accused says that the sentences imposed were demonstrably unfit. [6] We are of the view that there is no merit to the appeal. [7] The trial judge correctly applied the test in W(D). [8] We are also satisfied that his decision “is one that a properly instructed jury or a judge could reasonably haverendered” on the whole of the evidence, including the testimony of an independent eyewitness (R v RP, 2012 SCC 22 at paras 9-10).

Thetrial judge was entitled to accept some, all or none of the evidence adduced at trial. In particular, his inference that “the truck could nothave been driven onto the hood of the Honda without significant intentional acceleration” was supported by the evidence. [9] The appeal from conviction is dismissed. Leave to appeal sentence is denied. JA

JA JA