A controversial ruling ordering Mark Grant be retried for the 1984 murder of Candace Derksen is now officially before Canada's top court.
Lawyers with the Manitoba Prosecutions Service have filed their notice of appeal to the Supreme Court of Canada of a decision by the provincial Court of Appeal ordering Grant, 50, be given a new day in court on the basis he wasn't afforded a full defence at his 2011 murder trial.
Grant is accused in the 1984 killing of Candace Derksen, 13.
She disappeared after school and was missing for weeks until she was found tied up and frozen to death in a rarely-used shed at a business near the Nairn Overpass.
Grant wasn't arrested until 2007, when cold-case investigators obtained DNA results from a private laboratory linking him to twine used to bind Derksen.
A jury ultimately convicted him of second-degree murder and he was sentenced to life in prison without a chance at parole for 25 years in 2012.
Manitoba's Appeals court ruled Oct. 30 Grant should be retried on the basis jurors were barred from hearing any mention of an eerily similar sounding case police investigated in September 1985 — at a time when Grant was in custody on an unrelated matter.
The case involved the Winnipeg police probe of how a girl, 12, was found tied up in a railway boxcar months after Derksen had been found.
The complainant, now an adult, came to court to testify in 2011 and denied the event ever happened.
Grant's trial judge refused to allow his defence team to present details of that case to the jury for their consideration. The top court overturned that ruling and ordered a new trial.
Prosecutors will argue the move to overturn Grant's conviction and order a retrial was a legal error, according to their recently filed notice of appeal to the Supreme Court.
"The Manitoba Court of Appeal erred in overturning the Learned Trial Judge's decision that the risk that admitting similar fact-based third party suspect evidence would prejudice the trial outweighed its probative value," the Crown's notice of appeal states.
Grant's defence lawyer, Saul Simmonds, has not yet responded to the Crown's application.
It will be up to a panel of three Supreme Court judges to decide whether to grant the Crown leave to appeal and push the case to a full hearing. If leave is denied, the Crown can either retry Grant for Derksen's killing or elect to drop the case, meaning Grant would be freed.
He was returned to remand status in Manitoba from federal prison in mid-November. Grant has yet to signal if he will apply for bail, which he has the right to at this stage.