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After a six-week retrial in a 33-year-old murder case, the Crown has conceded some of the DNA evidence used to link Mark Grant to the 1984 death of 13-year-old Candace Derksen was "problematic," and Court of Queen’s Bench Justice Karen Simonsen should not give it any weight.
The startling admission came during Crown prosecutor Brent Davidson’s closing arguments on Friday.
The DNA recovered from slightly more than four metres of twine used to bind Candace’s wrists and ankles — leaving her "hog-tied" in a lumberyard storage shed as she froze to death after she went missing on Nov. 30, 1984 — has been heavily criticized during two trials.
The results of a third DNA test on twine extracts pointed to 53-year-old Grant; the first two came back inconclusive. Two internationally recognized DNA experts testified the DNA analysis — completed by Molecular World lab director Amarjit Chahal — was "fatally flawed" and "scientifically corrupt."
Now, the Crown concedes Simonsen shouldn’t arrive at a verdict based on that analysis.
"These analytical concerns must play into the process," Davidson said.
"If you’re asking me what I would do, I can tell you. Even though I believe, based upon the evidence as a whole, that Chahal’s interpretation is correct, I would place no weight on the nuclear DNA result."
Grant, who is charged with second-degree murder, is being tried for the second time. The Manitoba Court of Appeal overturned his 2011 second-degree murder conviction. The Supreme Court upheld the appeal court’s decision. The high court ruled the trial judge erred by not allowing the jury to hear evidence that could have pointed to another suspect.
That evidence, involving a 12-year-old girl who reported being abducted and tied up in a railway boxcar about nine months after Candace’s body was found, was downplayed by the Crown Friday. Davidson argued the victim, now an adult, shouldn’t be believed because she recanted her story during Grant’s 2011 trial, leading the trial judge to decide the incident never happened. Grant’s defence team urged Simonsen to believe the woman’s account, which was reported to police as taking place in September 1985 when Grant was in jail for a separate incident.
Davidson said despite concerns with the DNA analysis — which was scrutinized during several days of testimony from Chahal, other Molecular World employees and the two defence experts, Frederick Bieber and Bruce Budowle — the "elephant in the room" during Grant’s trial is that he had the "means and opportunity" to abduct Candace and leave her to freeze to death. Davidson argued there should be no reasonable doubt Grant is responsible for her death.
"You can’t mistake weight for reasonable doubt," he told Simonsen.
DNA tests on the twine contributed to Grant’s 2007 arrest after a Winnipeg police cold-case investigation. Candace’s bound and frozen body was discovered inside the storage shed on Jan. 17, 1985.
Davidson said he didn’t have the "literary capabilities" of defence lawyer Saul Simmonds, who delivered his final arguments Thursday with an Alice in Wonderland-themed twist. But he introduced a triangle metaphor when arguing the case is about more than DNA.
"The case against Mark Grant has dealt with three things: it deals with science, it deals with means and opportunity and it deals with admission," Davidson said. "It’s not about nuclear DNA as much as Mr. Grant would like you to think. It’s about evidence."
While Grant’s defence team has urged the judge to disbelieve a Crown witness who testified she was threatened by Grant in 1988 after she heard him confess to killing Candace, the Crown argued she is credible.
Tonia Lachance, who was then a friend of Grant’s girlfriend, said she heard Grant say "I killed her" during a group discussion about Candace.
A couple of seconds later he added, "No, I didn’t. I’m just kidding," she testified.
Lachance said Grant later threatened her not to tell anyone about the remark, "or he’d do to me what he did to Candace." She didn’t speak to the police about it for 19 years. The Crown said her fear of Grant explains why she didn’t come forward sooner.
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"I can’t imagine any admission stronger than this. It is credible, it is reliable, it is worthy of great weight," Davidson said.
Throughout the lengthy, high-profile trial, Grant sat quietly in the prisoner’s box, shielded from the view of the often-packed public gallery. But he interrupted Friday when Davidson spoke about Lachance, getting the attention of his lawyer, who promptly shushed him.
Davidson urged the judge to scrutinize and weigh all of the evidence, not just "piecemeal" parts of it.
"The only other person we know of who had similar means and opportunity was (Grant’s former girlfriend) and she was excluded" after mitochondrial DNA testing, a particular type that wasn’t challenged by geneticists who testified for the defence, Davidson said.
The reserved her decision on the verdict.
Katie May Justice reporter
Katie May reports on courts, crime and justice for the Free Press.
Derksen parents 'appreciate the journey toward justice'
As court let out after Crown prosecutors completed their final arguments against the man accused of killing 13-year-old Candace Derksen, her parents were approached by a man they’d never met before. He caught up to them in the marbled hallway outside the courtroom and politely explained he didn’t know them, but he was the same age as Candace. He seemed young, but as Candace’s mother would later gently remind her husband, “I think he’s quite old now.”
He gave them a heart-shaped decoration with the word “love” emblazoned on it — a gift Cliff Derksen clutched as he and his wife, Wilma, headed out into the sunny but deceivingly chilly spring day to stand before a huddle of reporters and television cameras who sought to capture their feelings at the close of the trial.
“We just appreciate the arguing because we appreciate the journey toward justice,” Wilma said.
“We have to be prepared for either way because we just don’t know,” she said of the judge’s impending verdict, for which a delivery date hasn’t yet been set.
Mark Grant was convicted in Candace’s death after a jury trial in 2011, but that conviction was overturned on appeal and a retrial began in January.
“The first trial convinced us” of Grant’s guilt and there was no evidence introduced the second time around that changed that gut feeling, Wilma said.
With only a judge and no jury this time around, the second trial delved deeper into the details of DNA evidence.
“But on the other hand, they brought more circumstantial evidence in this time, too, so how that will balance out is hard to tell,” Cliff said.
It would be “disappointing” if Grant is found not guilty, Cliff said. “I mean, if he didn’t do it, who did it?”
“I guess I fear that if he’s free, what will happen in the future, like will he strike again somewhere... The other side of it is the justice system itself. Can they find the truth? And how can they do that? They’ve had two shots at it now and you would hope that they could do it.”
After 32 years since Candace’s death — time enough for her peers to have grown up around them — the Derksens aren’t sure what their next step will be. They’ve been enveloped in the legal case for a decade, since Grant’s arrest in 2007.
“We’re not sure how we’re going to do without it,” Wilma said. On the other hand, she added, “we have to put this on the shelf.”