Hey there, time traveller! This article was published 18/10/2017 (1021 days ago), so information in it may no longer be current.
One of Winnipeg's most notorious criminal cases may forever remain an unresolved mystery after Mark Grant was found not guilty for the 1984 abduction and killing of 13-year-old Candace Derksen.
Court of Queen's Bench Justice Karen Simonsen said Wednesday the Crown had failed to adequately prove its second-degree murder case, leaving her no choice but to set Grant free. She said believing someone might be guilty, or even probably is guilty, isn't enough to meet the high standard required by law.
"Fundamentally, the totality of the evidence that I accept, its cumulative effect, falls short of the criminal standard of proof beyond a reasonable doubt," Simonsen wrote in her 130-page decision.
Outside court, both Cliff and Wilma Derksen said they were thankful to the justice system despite the outcome. They praised police, the Crown and the judge for their "hard work and tenacity."
Wilma said she hopes the Crown doesn’t launch an appeal and this represents the final chapter in this legal saga.
"You know it’s been 33 years. This just means it’s over for us, the process is over. In that it’s a relief," said Wilma. "Of course there was a bit of disappointment that it didn’t arrive at the conclusion that we had personally arrived at. That’s going to be a little hard to come to grips with."
Grant, 53, was first arrested in 2007 — more than 22 years after Candace was found frozen to death in a Winnipeg lumber yard shed following a massive public search that spanned nearly six weeks. She went missing Nov. 30, 1984, on her way home from school in Elmwood.
The so-called smoking gun in the case was believed to be DNA evidence which police believed pointed the finger of blame directly at Grant, a career criminal with a history of violent, sexual offences.
Grant went on trial before a jury in 2011 and was found guilty. However, the Manitoba Court of Appeal overturned the verdict and ordered a new trial. The high court ruled the trial judge erred by not allowing the jury to hear evidence that could have pointed to another suspect, and took into account potential frailties of DNA evidence linking Grant to the crime.
Grant's retrial ended this past May, with Crown prosecutor Brent Davidson conceding there were major issues with the DNA evidence that had consumed so much of the trial -- in both the way it was handled at the scene and the way it was eventually re-tested and processed. Simonsen heard from more than a dozen witnesses and many hours' worth of dense, DNA-focused scientific testimony over the course of six weeks.
The DNA recovered from slightly more than four metres of twine used to bind Candace’s wrists and ankles — leaving her "hog-tied" in the storage shed as she froze to death — was heavily criticized by expert geneticists called to testify by Grant's defence lawyer Saul Simmonds. The results of a third DNA test on twine extracts pointed to 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."
On the last day of Grant's retrial, the Crown conceded the judge shouldn't rely on the DNA results extracted from the twine, but argued the case turns on more than DNA, suggesting Grant had the "means and opportunity" to kill Candace.
That argument ultimately fell short.
"For 10 years he's been maintaining his innocence. Unfortunately this is a system that sometimes doesn't listen." –Mark Grant's lawyer, Saul Simmonds
"The DNA testing results and conclusions are fraught with difficulty. The DNA testing results are... unreliable and, therefore, of no value to the Crown," Simonsen wrote.
Simonsen also dismissed a Crown witness who testified she was threatened by Grant in 1988 after she heard him confess to killing Candace. 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.
"I have real concerns about the credibility of Ms. Lachance’s evidence about Mr. Grant’s comments; I am not satisfied of its truthfulness. Even if she was sincere, having genuinely convinced herself that these events occurred, I would question the accuracy of her recollections," Simonsen wrote.
Simonsen also had to deal with another key issue, namely that of a then-12-year-old girl who claimed she was abducted and tied up in a boxcar in similar fashion to Candace nine months later. The woman, whose name is protected by a court order, wasn't allowed to be heard by jurors in the first trial which was a big part of the successful appeal. In this second trial, her testimony was allowed. Although Simonsen expressed concerns about the woman's credibility -- she's previously recanted her story in a pre-trial hearing and now says she was lying about lying -- the judge made no findings either way because of finding reasonable doubt on the rest of the evidence.
Grant has been in custody since his arrest a decade ago. He was expected to be released late Wednesday to begin what his lawyer said would be a "very difficult transition."
"He obviously has got a lot of time to catch up on. He has to put his life back together. He's in a position in which he's been sitting in custody for 10 years and realistically for DNA that has been flawed from the outset," Simmonds said outside court. "For 10 years he's been maintaining his innocence. Unfortunately this is a system that sometimes doesn't listen."
“I ache for everybody out there who wants to believe in the justice system and I think it looks as if it’s failed again. But I think as far as resolution goes, I think all of us can resolve to be better people, better parents.” –Wilma Derksen
Simmonds said the fact a jury convicted his client on essentially the same evidence Simonsen has now acquitted speaks to the "appreciation of trying to explain DNA to the layman is not an easy thing to do."
The Crown has 30 days to decide whether they wish to appeal Simonsen's decision. Simmonds said they'd face an uphill battle after conceding the DNA evidence is flawed.
"My heart goes out to anyone who loses a child, as I'm sure everyone else feels. The Derksens have lost a child and I can't in any way replace that. Nor can anyone," said Simmonds. "The sad thing is that sometimes in our zeal to try and find someone responsible, we sometimes go the wrong way. That's what's happened in this case."
The Derksens said Wednesday's outcome "doesn’t change anything about Candace."
"We know that her legacy now continues to live. And that’s what important to us," said Wilma. She said the major concern now is public safety, considering Grant is going to return to society where he clearly hasn’t functioned well throughout most of his life.
The latest updates on the novel coronavirus and COVID-19.
"We want safety for our children. We’ve experienced what it’s like to have an unsafe community," said Wilma, adding she’s hoping for the best. "You know in some ways, I hope he’s been given a second chance. And I’m hoping the clarity we’ve had will be there for him".
The family honoured Candace Wednesday night at their home with family and friends by lighting 33 candles, one for every year that has passed since her death.
"There’s no resolution in the legal sense, that’s true. But we know what we know," said Cliff. "I’m sure it was very difficult for her but she made the call that she had to make, so I respect that."
"It has been a real precious journey of learning so much. We cherish the journey of 33 years," said Wilma. "I ache for everybody out there who wants to believe in the justice system and I think it looks as if it’s failed again. But I think as far as resolution goes, I think all of us can resolve to be better people, better parents."
Mike McIntyre Reporter
Mike McIntyre grew up wanting to be a professional wrestler. But when that dream fizzled, he put all his brawn into becoming a professional writer.
Nov. 30, 1984: Candace Derksen, 13, leaves Mennonite Brethren Collegiate Institute in the afternoon, presumably on her way home from class, but never arrives at her home.
Dec. 1, 1984: One of the largest police and public searches in Winnipeg's history is launched for Candace, a Grade 7 student.
Jan. 17, 1985: Candace's frozen body is found inside an old machinery shed on private industrial land near the Nairn Avenue overpass, about 500 metres from her home. Her hands and feet were tied behind her back with thick rope, making it impossible for her to walk and nearly impossible to move. She died of hypothermia caused by exposure.
Jan. 24, 1985: Candace's funeral takes place.
2006: Project Angel is quietly launched by Winnipeg police in a renewed effort to catch Candace's killer. The cold-case unit takes over and reviews all evidence, including forensic samples that are sent to a private Ontario lab for testing that wasn't previously possible. Police begin taking another look at suspect Mark Edward Grant and put together a comprehensive undercover plan to obtain his DNA and place him under regular surveillance.
May 16, 2007: Grant is arrested and charged with first-degree murder.
Jan. 18, 2011: Grant's trial begins. Dozens of witnesses are called, including forensic experts and retired police officers who worked on the original investigation.
Feb. 18, 2011: A jury convicts Grant of second-degree murder. Outside court, Candace's parents, Wilma and Cliff Derksen, say they often wondered whether their journey for justice would ever end. "I think the jury was tremendously courageous," Wilma says, wiping her eyes while clutching a fresh white rose she planned to lay at Candace's headstone.
May 26, 2011: Grant is given a mandatory life sentence with no chance of parole for at least 25 years. Queen's Bench Justice Glenn Joyal says he is raising the parole eligibility from the minimum of 10 years and imposing the maximum sentence allowed by law to reflect Grant's horrific criminal record and the severity of his crime.
Oct. 30, 2013: Manitoba's Appeal Court overturns the guilty verdict, ruling Grant did not receive a fair trial. The court cites one key error made by the trial judge in its decision to order a new trial. It says Joyal was wrong to exclude jurors from hearing testimony from a Winnipeg woman who claimed in 1985 she was kidnapped by a stranger in a similar fashion to Candace — only to recant the story 26 years later.
March 20, 2014: The Supreme Court rules it will hear the appeal in the Grant case.
March 5, 2015: The Supreme Court agrees with the Manitoba Court of Appeal's decision to overturn the conviction of Grant, now 51. The Manitoba Crown will now have to decide whether it will prosecute Grant a second time. Wilma Derksen says the family is "completely surprised... We are stunned — again."
Jan. 16, 2017: Second trial begins with a promised focus from Crown attorney Brent Davidson on DNA evidence.May 12, 2017: Crown and defence lawyer Saul Simmonds complete closing arguments.October 18, 2017: Grant is found not guilty. Justice Karen Simonsen ruled the Crown did not prove its case beyond a reasonable doubt.