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New trial ordered in Candace Derksen killing

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Manitoba’s highest court has overturned the guilty verdict in the Candace Derksen murder case, ruling accused killer Mark Grant did not receive a fair trial.

The bombshell decision, released Wednesday, puts one of the city’s most notorious homicide cases back in the public spotlight.

"We’re kind of in shock and in chaos," Candace’s mother, Wilma Derksen, said of the development. She spoke to reporters while flanked by her husband Cliff outside their south Winnipeg home. "We expected all kinds of things, but not a retrial," Derksen said. "None of us expected this."

Grant, 50, was convicted by a jury of second-degree following a lengthy trial that ended in February 2011. He brought the case to the Manitoba Court of Appeal, who reserved their decision after hearing arguments earlier this year.

Derksen, 13, was grabbed off the street Nov. 30, 1984, while walking home from school. She was tied up and left to freeze to death inside a shed. Her body was found Jan. 17, 1985. Jurors spent three days weighing the evidence, which largely consisted of DNA evidence that cracked the case in 2007.

Three pubic hairs were found on or near Candace's body, although police have said she wasn't sexually assaulted. Four scalp hairs that appeared to have been lightly bleached near the roots were on her clothing. There is evidence Grant coloured his hair around the same time. DNA extracted from the twine used to tie her up was found to be a maternal match to Grant.

The Appeal Court cited one key error made by the trial judge in their decision to overturn the verdict and order a new trial. They said Justice Glenn Joyal was wrong to exclude jurors from hearing testimony from a Winnipeg woman who claimed in 1985 she was kidnapped by a stranger in a similar fashion to Candace -- only to recant the story 26 years later.

Defence lawyer Saul Simmonds had filed a pre-trial motion to put the woman in the witness box, believing it would prove Grant was innocent of killing Candace. That's because Grant was in custody on other charges at the time the woman, just 12 years old in 1985, was allegedly attacked, meaning he couldn't possibly be responsible for either crime if there was a proven link.

She was discovered by a bystander in the fall of 1985 lying inside an empty railway car on Gateway Road. She was screaming "Mommy, mommy," her wrists and legs were bound, and there was a plastic shopping bag over her head. The 12-year-old told police an unknown man had abducted her around 4 p.m. on a Friday as she left Valley Gardens Junior High School to walk home.

Police were immediately on high alert. The distance between where Candace and the other girl were found was five kilometres.

There were Wrigley gum packages found at both scenes, a connection police were quick to make note of. Even the knot used to tie the girl's arms with plastic tubing was similar to the one found on the twine around Candace's arms.

Investigators went so far as to take the girl to a memorial service for Candace to have her scan the crowd for the potential attacker. She also gave a detailed description of the man and his vehicle, which led to the creation of a composite sketch.

The investigation went cold and no arrests were made. Simmonds came across the file and sought to have jurors hear about it. The Crown was opposed, saying it would "derail" Grant's trial and had "no probative value."

"These are the kinds of similarities which should be called into court. Is (the gum wrapper) potentially a signature? The police certainly thought so," Simmonds argued during the motion. "We're talking about someone who would have to be a 12-year-old genius to create this kind of copycat situation."

Prosecutor Brian Bell had told court how police reinterviewed the now-adult woman in early January and learned she was now claiming the alleged attack apparently never happened. Those views were confirmed when she testified before Joyal just days before the trial began.

"I would suggest this never really happened," Bell asked her in cross-examination. "I would agree, yes," replied the mother of six. She went on to explain through tears she has absolutely no memory of that day or most of her childhood.

"I went through a lot of trauma as a child, had a lot of nightmares. I don't know whether some memories are nightmares or the truth," she said.

Simmonds asked the woman to read through her old police statement and look at photographs and police reports prepared at the time. She refused. Joyal asked her when she first began to realize the story as she originally told it never happened. The woman said it was about 10 years ago.

There is no disputing she was actually found in the rail car as described, because the independent witness who overheard her screams for help gave a statement in 1985. However, that woman has since passed away.

The woman gave no further explanation for her drastic change in story or why she would have been found in that state. She didn't say whether it was a cry for attention or something else.

"The witness is obviously going through a serious trauma," Simmonds told court. He argued jurors should still hear about the entire incident, despite her now claiming she wasn't actually abducted, because his client's "innocence was at stake."

Joyal decided jurors would not hear anything about the "phantom kidnapper."

"I am not able to conclude... the alleged offences even happened," he said.

Simmonds had also appealed the guilty verdict by accusing the Crown of using "bad science." He said police ignored evidence that pointed away from Grant, contaminated the crime scene and mishandled key exhibits, such as the twine. Simmonds continued that argument before the high court, saying an American DNA expert who has reviewed the case believes evidence was manipulated against Grant.

The Crown argued the strength of the case and urged the appeal court not to interfere. While they admitted it wasn't a perfect investigation or trial, prosecutors said nothing would warrant a new hearing.

The Appeal Court ultimately rejected all those grounds of appeal but said the exclusion of the witness claiming a similar attack was enough to sink the conviction.

Read the complete Court of Appeal decision:



History

Updated on Wednesday, October 30, 2013 at 12:54 PM CDT: Updated

1:10 PM: Corrects typos, adds full document.

2:53 PM: Live stream code added.

3:21 PM: Switches to replay.

5:29 PM: Adds interactive timeline.

5:57 PM: Adds quote from Wilma Derksen.

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