11/07/2014 12:22 EST | Updated 01/07/2015 05:59 EST

Autopsy hearing told Winnipeg storage locker babies found in garbage bags

WINNIPEG - Police who searched a storage locker where six dead infants were discovered said the remains were in kitchen garbage bags, plastic containers and, in one case, a pail.

Parts of a police report were read out in court Friday during a hearing over who should be allowed to observe the autopsies. The report said officers were called on Oct. 20 to a Winnipeg U-Haul facility after employees went into the locker, smelled a strong odour and saw "squishy bags."

Police notes indicate the officers found bodies wrapped in garbage bags and placed in either a duffle bag, a tote bag or plastic containers. One body was wrapped in a towel, as well as a garbage bag, and stored in a pail.

One officer managed to pry open one container and saw "limbs that belonged to an infant," said Crown attorney Debbie Buors.

She said the storage locker wasn't full of personal effects. It was sparse and contained only the bags and containers apparently meant for the sole purpose of storing the remains.

"They were all found in a small contained area."

The medical examiner's office was immediately called since it has jurisdiction over human remains, Buors said.

Andrea Giesbrecht was arrested soon after on four counts of homicide, but was charged with six counts of concealing a body and one count of breaching probation. The 40-year-old showed little emotion as the details of what police found were discussed in court.

Police have said the state of the remains was such that it could take months of forensic examination before it might be known who the parents were, how the infants died and whether they were full term.

Greg Brodsky, Giesbrecht's lawyer, is trying to get a court order to allow a pathologist of his choosing to observe the autopsy, even though the medical examiner's office has said it is virtually complete.

At the hearing on Friday, Brodsky referred to the remains as "fetuses" and said they would not be considered people under the law if they turn out to be less than 20 weeks gestation.

The autopsy also has to determine if the infants were stillborn, he said. That determination may come down to a matter of opinion, Brodsky suggested.

"It's like a traffic accident," he told provincial court Judge Brian Corrin. "Two people see different things although they're looking at the same thing."

Thambirajah Balachandra, Manitoba's chief medical examiner, is opposed to Brodsky's request. He said it would be like having the accused in the examination room.

Brodsky said police are allowed to observe the autopsies so his client should be given the same right.

"The person who has the most to lose is not entitled to be there, according to the Crown," Brodsky said. "If you look hard enough, you may find evidence that doesn't exist."

He pointed to the notorious case of a woman in Australia charged with the death of her baby, even though she always said the infant was killed by a wild dingo. She was eventually exonerated.

"People looking at the same injuries saw different things," Brodsky said.

The judge asked the lawyer if he would be satisfied if police were also excluded from the autopsy room. Brodsky said he would take that suggestion under advisement if a pathologist is not allowed to watch the examination.

Buors argued the provincial court doesn't have jurisdiction over the medical examiner's office. The remains were seized by that office under the Fatality Inquiries Act and not the Criminal Code, which could be enforced by the provincial court, Buors said.

She indicated the Crown would be filing a motion with Court of Queen's Bench that the hearing is outside the scope of Corrin's courtroom.

"The medical examiner has the exclusive jurisdiction to conduct the investigation," she said. "The court has no jurisdiction to interfere with the Fatality Inquiries Act.

"It can't be any clearer than that."

Corrin reserved his decision and said he will try to rule as soon as possible.

If the remains are determined to be less than 20 weeks gestation, "everyone may not even be here," Buors conceded, but that hasn't been determined yet.

"We won't know the results until the autopsy has concluded."

Note to readers: This is a corrected story. An earlier version spelled the Crown attorney's last name incorrectly.