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Supreme Court to hear appeal on Mark Grant retrial

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Canada’s top court will decide whether a Manitoba court’s decision to order a retrial for Mark Edward Grant in the 1984 killing of schoolgirl Candace Derksen was the right one.

The Supreme Court of Canada ruled this morning it will hear the Manitoba Prosecutions Service’s appeal in the Grant case after Manitoba’s Court of Appeal ruled late last year he should get a new murder trial.

Manitoba’s top court found a judicial error at Grant’s 2011 trial barred him from making a full defence. He was ultimately convicted by a jury of second-degree murder and sentenced to life in prison without a chance at parole for 25 years.

Grant was arrested in 2007 after Winnipeg police cold-case investigators linked him to a mitochondrial DNA profile extracted from twine used to tie Derksen up in a rarely used toolshed near the Nairn Overpass in November 1984.

The 13-year-old simply disappeared after leaving school. Despite a massive search effort she wasn’t found for weeks. Pathologists found she froze to death.

Prior to the jury hearing evidence in Grant’s trial, Court of Queen’s Bench Justice Glenn Joyal ruled against him being allowed to present evidence suggesting an unknown "third-party suspect" was responsible for killing Derksen.

His defence team hoped to show police were involved in an eerily similar investigation months after Derksen was found — and when Grant was in custody on an unrelated matter.

Joyal’s ruling was a mistake, Manitoba’s top court said, and ordered a new trial for Grant.

That prompted Crown attorneys to immediately seek an appeal of that decision to the Supreme Court.

Appeal could take months

The news was bittersweet for Wilma Derksen, the victim’s mother.

"We’re feeling a relief because the thought of it going to a retrial is just very disappointing," Derksen said. "It had been a good trial and to have it overturned was just a shock and didn’t do it justice."

It will likely take many months, if not more than a year, before the Crown’s appeal is heard. As with virtually all Supreme Court hearings, it will be televised.

Grant remains in custody, but it’s open to him at any time to make a bail application given the developments in his case.

"We go through the sadness again that it isn’t over," said Dersken. "We as a family remain in kind of a public conversation which is tough sometimes. We are looking at the positive that, again, something good might come out of all of this. That’s been our wish from the beginning."

Crown's fight surprises Grant's lawyer

Grant’s lawyer, Saul Simmonds, said Thursday the Supreme Court’s decision doesn’t change Grant’s view of the whole case.

"Our position has been all along that we will continue to vigourously defend Mr. Grant’s innocence," Simmonds said.

He said it’s surprising prosecutors continue their fight to uphold Grant’s conviction in light of challenges to their DNA evidence Grant tried to introduce on appeal.

The Manitoba Appeals court refused to introduce expert opinions as "fresh evidence" from Grant’s side.

The experts, one of them a renowned U.S. genetics expert and former FBI scientist, cast doubt on the work done by the private DNA lab police used in the case.

Despite the court’s refusal, prosecutors still have those reports at hand to consider, Simmonds suggested.

"It’s very disappointing the Crown continues to pursue Mr. Grant in light of the DNA evidence that’s in their possession," Simmonds said.

james.turner@freepress.mb.ca

-- with files from Canadian Press

History

Updated on Thursday, March 20, 2014 at 12:20 PM CDT: Adds reports from Canadian Press.

2:11 PM: Adds comments from Grant's lawyer

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