Justice based on evidence

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The abduction-slaying of Candace Derksen 26 years ago was a watershed event for Winnipeg. Parents held their children closer, Child Find was created, the term streetproofing was born and police re-examined their practices for searching for missing children. In the courtroom, however, none of that mattered. It was just another case bound by the rules of law and evidence.

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Opinion

Hey there, time traveller!
This article was published 22/02/2011 (4298 days ago), so information in it may no longer be current.

The abduction-slaying of Candace Derksen 26 years ago was a watershed event for Winnipeg. Parents held their children closer, Child Find was created, the term streetproofing was born and police re-examined their practices for searching for missing children. In the courtroom, however, none of that mattered. It was just another case bound by the rules of law and evidence.

The legal system has been criticized for setting the guilty free, but also for convicting the innocent. The principles of justice are not perfect and they are too often misunderstood and scorned by the general public, but they are based on centuries of precedent and trial and error.

The outcome of the five-week murder trial of Mark Edward Grant, then, is an opportunity to consider a few of the rules that affected the case for both the defence and the Crown.

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The jury in a criminal trial is frequently in the dark on some issues. They might wonder, for example, if the accused is a person of bad character or if he or she has committed similar crimes in the past. They might also wonder why the accused does not take the stand to scream out his innocence, even though judges go to pains to explain defendants do not have to testify and jurors should not draw any conclusions from such silence.

In the Grant trial, there were many things the jurors did not hear. They were never told a case with similar facts happened within a year of the disappearance of Candace. A 12-year-old girl was tied up in a train car located near the Derksen home and abandoned by her abductor. At the time, police said the incident was eerily similar to the Derksen case. No one was ever arrested.

The defence was not allowed to tell the jury about the case, nor the fact Grant couldn’t have been the culprit because he was in jail at the time. It might have raised reasonable doubt about Grant’s guilt, but the problem was the victim today says the story was not true.

The judge ruled against admitting the story because it was unreliable and lacked credibility. Similar-fact evidence can be allowed, but it must meet a high standard of relevance and probative value, a test the recanted abduction story failed to achieve, which doesn’t mean it won’t be a ground for appeal.

The Crown also had powerful evidence the jury did not hear, but it was the kind of evidence that is rarely allowed. The prosecution could have shown Grant had a record of sexual assault and a history of mental illness, that he was a very bad man, the very kind of man capable of abducting a young girl, tying her up and leaving her to die.

The prosecution did not even attempt to tell the jury all of that because it was inadmissible. That’s because Grant’s character was not on trial and evidence of his past conduct would have been overwhelmingly prejudicial, distracting the jury from considering only the facts linking him to Candace’s abduction and death. It would have been different if Grant had taken the witness stand. Then his credibility would have been fair game.

The argument for admitting his record as evidence might be valid if his past crimes were identical to the Derksen case, but they were not. Telling the jury a defendant is a bad person is a prescription for a wrongful conviction.

Everyone is entitled to a fair trial and an appeal. But victims and their families are also entitled to know defendants have been convicted or acquitted on the basis of the highest standards of justice. Tainted evidence and tainted verdicts affect them, too, particularly in the case of wrongful convictions, but also when verdicts are overturned because of critical errors made during the trial.

At this point, notwithstanding the appeal process, Wilma and Cliff Derksen can be comfortable with the idea that justice has been done, and that Candace can rest in peace.

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