Judge allows key DNA evidence to be used in Candace Derksen retrial

A Manitoba judge has decided to allow key DNA evidence to be presented in Mark Grant's retrial for the 1984 killing of Candace Derksen.

In her decision this afternoon, Justice Karen Simonsen also dismissed a defence application to stay Mark Grant's retrial. The judge said she wasn't going to go into detail about her decisions and would address that when she delivers her verdict.

In February, Saul Simmonds, Grant's lawyer, filed a motion to stay the case, arguing DNA tests on twine gathered at the murder scene in 1985 were flawed and the twine can't be re-tested.

He said the judge should either throw out the evidence or release his client and end the retrial.

Simonsen disagreed.

Candace, 13, was found frozen to death in an Elmwood storage shed in January of 1985, seven weeks after she went missing. Her hands and feet were bound with twine.

Forensic investigators extracted DNA from that twine, and sent it to a lab in Thunder Bay for retesting in 2007.

Wilma Derksen, Candace's mother, was in the courtroom on Friday to hear the judge's decision. She says she was confident the evidence would be allowed.

"I wasn't worried about it but I'm now surprised at how relieved I am, that it's all going to be in there, and that we are going to have the chance to do justice right," she said.

Derksen said she is happy that the judge will consider the DNA evidence along with the rest of the witness testimony.

"The whole story has to come out. Science has to match the narrative and vice-versa," said Derksen.

"There's part of me that's still a citizen and I want our justice system to work. I want it to say who is guilty and who isn't. Because that's part of creating trust again in the community and safety for our children," she said.

DNA evidence questioned

The lab performed three DNA tests on the twine, using up parts of the original sample with each test. The third yielded a link to Grant, but also consumed all of the DNA extracts, court heard.

• Timeline of the Candace Derksen case
• Inaccuracy in DNA report called out at Candace Derksen murder retrial

DNA played a key role in Grant's 2007 arrest and his 2011 conviction in Candace's murder. A forensic specialist told the jury at his first trial there was a one-in-50-million chance DNA found on the twine could belong to anyone except Grant.

Two years later, a Manitoba Court of Appeal granted a retrial in the case after ruling evidence about a possible "third-party suspect" was withheld from jurors during the first trial.

• Defence lawyer for the man accused of killing Candace Derksen files motion to stay case
• DNA results were 'unreliable and flawed,' expert at Candace Derksen retrial says

During the retrial, Simmonds introduced other cases where key evidence was lost and destroyed, arguing police would not have had grounds to arrest his client if not for the "scientifically corrupt" DNA results.

David Milward, associate professor of law at the University of Manitoba, said that while there are concerns about the DNA evidence, the court has a duty to re-examine all of the evidence.

"In some respects, that's the reason why we have the right to be tried within a reasonable time. The further ahead in time, the less you can go back and really look at things," he said.

"But if the evidence was actually clear that there were problems back then, it still needs to be re-examined, no matter how many years after the fact," said Milward.

"Because freedom is freedom for somebody who may have been wrongfully convicted whether it's 10 years after the fact or 30 years after the fact." 

The court was adjourned Friday until May 11.