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This article was published 30/10/2013 (2754 days ago), so information in it may no longer be current.
The equivalent of a legal landmine detonated Wednesday with the sudden reopening of one of Winnipeg's most haunting homicide cases, leaving the parents of a slain schoolgirl in a state of shock and Crown prosecutors pondering their next step.
Manitoba's Court of Appeal overturned Mark Edward Grant's second-degree murder conviction for the 1984 killing of 13-year-old Candace Derksen, citing a legal error the top court ruled severely compromised the 50-year-old's defence.
"We're kind of in shock and in chaos," Candace's mother, Wilma Derksen, said of the development. She spoke to reporters while flanked by her husband, Cliff, outside their south Winnipeg home. "We expected all kinds of things, but not a retrial," Derksen said. "None of us expected this."
A jury convicted Grant in early 2011 following a lengthy and complex trial. The Crown's case hinged on DNA evidence allegedly linking him to twine used to hog-tie Derksen, who went missing after school Nov. 30, 1984, and was found weeks later frozen to death in a rarely used machinery shed in a brickyard near the Nairn Avenue overpass.
'We're kind of in shock and in chaos' ‐ Candace's mother, Wilma Derksen
Grant was arrested 2007 after cold-case homicide investigators reopened the file and had DNA tested at a private lab in Thunder Bay, Ont.
Although the Appeal Court found "concerns" with the DNA evidence, its decision to order a new hearing stems from Court of Queen's Bench Chief Justice Glenn Joyal's decision to prohibit Grant's lawyer from presenting evidence about an unknown suspect his defence says shows Derksen was killed by someone else.
"It seems to me that this evidence, which I view as very relevant, could provide the basis upon which a reasonable, properly instructed jury could acquit," Justice Michel Monnin wrote on behalf of a three-member panel of the Appeal Court.
Grant fought to introduce evidence regarding a police probe from September 1985, months after Derksen was found dead -- and, most importantly, at a time when Grant was in custody on an unrelated matter. A 12-year-old girl reported she was abducted, tied up with cord and left in an empty railcar not far from where Derksen was found.
At both scenes, police found Wrigley's gum wrappers and there was an indication both girls had been bound in granny knots. "There is even a report of investigators escorting (the living girl) to Camp Arnes... where a memorial service for Candace Derksen was being held in hope that her murderer might be in attendance and might be recognized by (the living girl) as her abductor," Monnin wrote.
Joyal was given a written statement of a now-deceased witness who came across the second girl, which appeared to corroborate the event had taken place. But the now-adult woman at the centre of that case recanted her story in court, testifying she had no memory of it. This prompted Joyal to declare any mention of the incident at Grant's trial off-limits. "I am not, even on a balance of probabilities, able to conclude that the alleged offence happened," he said.
That was an error, the high court ruled.
Joyal applied an incorrect standard of evidence and appeared to rely only on what the woman testified to in court, seemingly ignoring all the other evidence he had, Monnin wrote.
"There was before the judge, extensive police reports of the incident... . Those reports clearly seemed to indicate that the incident had occurred and that there were similarities between it and how (Derksen) was murdered," Monnin wrote. "In the end, in my view, this was relevant evidence upon which a properly instructed jury could acquit if it believed the evidence to be true," he stated.
Wilma Derksen said she believes Joyal and Crown attorneys Brian Bell and Michael Himmelman did "an amazing job."
"We're a little bit shocked that their work didn't hold up," she said, adding the reversal of Grant's conviction feels rooted in a technicality.
"I wish I could believe that these were real grounds," she said. "I know that it's a trial that's very nuanced... it's old... . Sometimes I think the nuances may have been lost in the appeal process," said Derksen.
Derksen said she wants Grant to have his day in court. "We want the full defence, we do. We want all of that," she said.
Joyal's ruling during the trial was a "significant blow" to Grant, defence lawyer Saul Simmonds said.
The Crown must decide whether it will retry the case.
"It's our hope that maybe the Crown will take the time now to review the case... and make a determination as to whether or not there will be another prosecution," said Simmonds.
A Manitoba Justice spokeswoman said the appeal decision "will be reviewed in detail."
The Crown could try to have the Appeal Court's decision overturned by applying to the Supreme Court.
The Crown also has the option of not proceeeding with another prosecution if it finds there is no reasonable likelihood of a conviction.
The ruling means Grant can apply for bail.
-- with files from The Canadian Press