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Candace's killer asks for new trial

Defence says 18 errors made

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One of Manitoba's most notorious criminal cases is back under a microscope this week in a court hearing that could result in a new trial for Candace Derksen's killer.

Mark Grant appeared Tuesday before the Manitoba Court of Appeal, seeking to have his second-degree murder conviction overturned. Grant, 49, is citing 18 alleged errors made by Chief Justice Glenn Joyal in his handling of the jury trial, which ended in February 2011.

"It raises the spectre of a wrongful conviction," defence lawyer Saul Simmonds told the three justice panel, which will continue hearing arguments today.

Grant is also appealing Joyal's sentence, saying it was unduly harsh. Grant was given a mandatory life sentence with no chance of parole for at 25 years. Joyal said he raised parole eligibility from the minimum of 10 years and imposed the maximum sentence allowed to reflect Grant's horrific criminal record and the severity of his crime.

Derksen, 13, was grabbed off the street on Nov. 30, 1984, while walking home from school, bound with rope and left to freeze to death inside a shed. Her body was found in the shed on Jan. 17, 1985. Jurors spent three days weighing the evidence against Grant, which largely consisted of DNA evidence that finally 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 dyed 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.

During the trial, Simmonds accused 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 Tuesday, saying an American DNA expert who has reviewed the case believes evidence was manipulated against Grant. "The verdict, from our perspective, is unreasonable," said Simmonds.

The Crown plans to argue Simmonds isn't raising any new ground, considering he called another defence expert during the trial to contest the DNA findings, only to have jurors reject that evidence.

Simmonds also takes issue with Joyal's pretrial ruling that excluded jurors from hearing testimony from a Winnipeg woman who claimed in 1985 she was kidnapped by a stranger in an eerily similar fashion to Candace -- only to recant the story 26 years later.

Simmonds had filed a 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." The Crown noted police reinterviewed the now-adult woman in early January 2011 and she claimed the alleged attack never happened.

Simmonds argued Tuesday the jury should have heard the evidence.

Republished from the Winnipeg Free Press print edition April 17, 2013 B5

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