Defence lawyer for the man accused of killing Candace Derksen files motion to stay case

The defence lawyer for the man accused of killing Candace Derksen has asked that the retrial be stayed, given that the DNA evidence used to link Mark Edward Grant to the murder was flawed and cannot be independently verified because it no longer exists.

Lawyer Saul Simmonds filed the Charter motion Friday, arguing at best his client should be released and failing that he asked the judge exclude the nuclear DNA evidence presented in the trial.

"The complaint is twofold," Simmonds told the judge. "The lack of the DNA from the twine to be analyzed independently and of course the fact that the assessment and the process is fatally flawed in the first place which exacerbates the problem."

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Candace, 13, was found frozen to death and bound with twine on the floor of an Elmwood storage shed in 1984. DNA extracted from the twine was sent to a Thunder Bay lab for retesting in 2007, when the cold case was revisited.

The lab conducted three DNA tests on the twine, after each run some of the original sample is used up. The third test yielded the result to link Grant, however it also consumed all of the DNA extracts, court heard. 

Molecular World provided the results to Winnipeg and officers arrested and charged Grant with second-degree murder in 2007. 

A jury found Grant guilty of second-degree murder in 2011. Two years later, a Manitoba Court of Appeal judge ordered a retrial because evidence about a possible "third-party suspect" was withheld from jurors during the first trial.

In the course of Grant's new trial, two top forensic experts, brought in by the defence, raised serious concerns about the reliability of the DNA results. Both experts accused the lab of suspect bias and ignoring DNA markers that would have excluded Grant as a match and therefore a suspect.

On Friday, Simmonds brought forward other cases where key evidence was lost and destroyed as precedents for his request that the case be stayed.

"In many of these other cases there is not a suggestion of the kind of negligence that we suggest occurs here," Simmonds told the judge. "The basic reliability of the evidence is not in question in those cases."

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Simmonds argued if it weren't for the "scientifically corrupt" DNA results, police would not have had reasonable grounds to arrest Grant in the first place.

Defence lawyer Adam Hodge later added that, had the DNA not been completely consumed in the last round of testing, another independent test may have had yielded the information needed to exonerate Grant.

Was all the evidence consumed?

"Based on all of the evidence, which we say is inconsistent data and unreliable results, we say that that has caused a level of prejudice to Mr. Grant that cannot be remedied."

The Crown challenged the defence's Charter motion.

Crown attorney Brent Davidson told judge Karen Simonson, "you're who decides whether the evidence satisfies you beyond a reasonable doubt as to the guilt or innocence of an individual," he said.

He added that Simmonds was "wrong" to suggest they wouldn't be in court without the DNA evidence.

"Did Molecular World consume, as is alleged, all of the evidence? We say no," he said, adding nothing precluded the defence from having materials re-analyzed.

"The court can consider all of the evidence," he said. "We have also presented other evidence that proves all of the DNA was not extracted from that twine."

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Simmonds said you could re-test the remains of the twine "a thousand times" but it would not produce a profile of any substance.

All of the evidence from the Crown and the defence has now been heard at the trial. Closing arguments have been tentatively scheduled for May 11 and 12.

It's now up to the judge to decide whether to accept the defence's position to stay the proceedings, or have the nuclear DNA evidence excluded from consideration in the trial. 

She will inform the court of her decision before May 11.