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Crown fears consequences of decision

Says allowing new trial in Derksen killing could seriously harm future criminal cases

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A bombshell decision by Manitoba's highest court to order a new trial for a man convicted in the murder of Candace Derksen leads to "arbitrary and bizarre" results that may have serious negative implications on criminal trials in Canada in the future.

That's the view of the Manitoba Prosecution Service, which is headed for a showdown in the Supreme Court of Canada as it works to see Mark Grant's second-degree murder conviction upheld after it was quashed by the Manitoba Court of Appeal.

The top provincial court ruled last fall Grant didn't get a fair trial when his defence lawyers were forbidden from presenting evidence to his jury that an unidentified third-party suspect may have been Derksen's killer.

In Supreme Court documents obtained Thursday by the Free Press, prosecutors assert not only was the decision to allow Grant a new trial a mistake, but the way the Court of Appeal came to its conclusion has the potential to open the floodgates and let virtually any suspect claim someone else may have committed the crime of which they're accused.

"(The court's) approach leads to arbitrary and bizarre results and increases the danger that criminal proceedings will be overtaken by issues that have little to do with whether the evidence produced by the Crown establishes the accused's guilt," prosecutors plan to argue at a November Supreme Court hearing in Ottawa.

"Its practical implications are troubling. There will often be 'some evidence' linking cases to other offences -- or alleged offences -- particularly where dated or 'cold' cases are involved: They may have occurred in the same geographical region, there may be similarities in the way of the offences are carried out, the victims may share certain similarities," the prosecutors believe.

"The regular admission -- and disclosure -- of this evidence will significantly complicate and delay proceedings and may even call into question the Crown's ability to satisfy its constitutional obligations," they will argue.

Grant, now 51, was charged in 2007 with first-degree murder for the death of schoolgirl Candace Derksen, who vanished one day after school in November 1984.

The 13-year-old was missing for weeks until she was discovered tied up and frozen to death in a rarely used shed at a brickyard not far from her home.

The haunting homicide remained unsolved until 2007, when police arrested Grant and alleged new analysis techniques employed at a private lab in Thunder Bay led to his mitochondrial DNA being found on the twine used to bind Derksen.

A jury convicted him after a lengthy and, at times, highly technical trial in 2011. He was sentenced to life without a chance at parole for 25 years in 2012.

Grant has always maintained his innocence.

Jurors never heard a word about a pretrial battle between the Crown and Grant's defence over what -- on its surface at least -- appeared to be an eerily similar alleged abduction of a young girl months after Derksen's body was found and when Grant was in custody on an unrelated matter.

A woman out walking her dog came across a 12-year-old girl in a rail boxcar who had been tied up.

Over the coming years, the then-young woman gave inconsistent statements to police about how she came to be there and other features of the incident, prosecutors say.

She was called to testify at a hearing days before Grant's jury starting hearing evidence.

She told Court of Queen's Bench Justice Glenn Joyal she couldn't recall details or whether what happened was a nightmare or the truth.

She ultimately told court she believed the event never happened.

Joyal refused to allow any mention of the woman or her story to the jury, despite the fact there were police reports and statements indicating investigators believed a crime had taken place and no one was ever arrested.

The Crown says Joyal correctly found any mention of the investigation may confuse or distract jurors from their job.

"Given the inconsistencies in (the girl's) statements, coupled with her (trial testimony) that she had not been abducted, he was unable to conclude that she had even been the subject of an abduction," prosecutors say.

Joyal's ruling was the reason the Appeal Court decided to overturn Grant's conviction, claiming he used the incorrect legal approach by barring any mention of the second incident.

Similarities between the two incidents the Appeal Court commented on in its ruling were "overstated," the Crown believes.

Ultimately, an accused's right to a full defence has to be balanced with the need to keep juries from being distracted or confused by "evidence of low probative value," prosecutors say.

Under the Court of Appeal's standard, criminal cases in which suspect identity is an issue will become minefields for fruitless legal fights and disclosure problems, the Crown will argue.

"For example, an accused charged with the murder of a young aboriginal sex-trade worker may wish to introduce evidence of any number of similar unsolved crimes in order to argue, like (Grant) that some unidentified third party was responsible," prosecutors say.

"If all that is necessary for admission is 'some evidence' connecting the various offences, it is hard to see how the trial judge could prevent the case from deteriorating into a series of 'trials within trials' bearing little connection to the actual evidence against the accused, leading to convoluted jury instructions, unpredictable results and a significant loss of confidence in the administration of justice."

Grant's defence lawyers have yet to file a reply to the Crown's case. The Supreme Court hearing is currently slated to take place Nov. 14.

Grant remains in provincial custody and has not made a bail application.

james.turner@freepress.mb.ca

Republished from the Winnipeg Free Press print edition July 11, 2014 A5

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