Mark Edward Grant could get new trial in abduction, murder of Candace Derksen

Cliff and Wilma Derksen remain convinced that Mark Edward Grant is responsible for their daughter's 1984 abduction and murder but understand why the man is happy he's been awarded a new trial.

"If I was on the other side of the fence, if I [felt I] was falsely accused I would appreciate this kind of thing," Cliff Derksen said, speaking to reporters from his living room on Thursday morning.

The couple lauded the justice system, calling it one of the best in the world, but admitted they were not prepared for Thursday's decision by the Supreme Court.

​"To me it's so unrealistic, [I'm] totally flummoxed, totally in shock," Wilma said. "I was ready for it to be over."

Two hours earlier, the Supreme Court ordered a new trial for Grant, who was found guilty by a jury of second-degree murder in February 2011 and sentenced to life in prison with no parole eligibility for at least 25 years.

​Grant repeatedly denied killing 13-year-old Candace Derksen and appealed that decision to the Manitoba Court of Appeal.

In 2013, the appeal court agreed the original trial judge did not consider some evidence that could have cast doubt on Grant's guilt and ordered a new trial.

The Crown appealed that decision to the Supreme Court and in a unanimous 7-0 decision released Thursday, the country's highest court upheld the appeal court ruling for a new trial.

"In this case, I conclude that the trial judge erred in evaluating and assessing the credibility of the unknown third party suspect evidence on a balance of probabilities," Justice Andromache Karakatsanis wrote on behalf of the Supreme Court on Thursday.

"I agree with the Court of Appeal that a new trial is required."

Justice Michel Monnin wrote that some evidence not presented at trial "could provide the basis upon
which a reasonable, properly instructed jury could acquit."

When first informed of the decision Thursday, Wilma couldn't speak, telling CBC News over the phone that she had to go.

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The couple then called a news conference in their living room, during which they swung from being dumbstruck to being ready to deal with having all of the evidence and memories raised back up again.

"We have resolved right from the beginning to make the best of it, so that's what we continue to want to do and she [Candace] would be behind that," Wilma said.

She then reiterated her certainty about Grant's guilt and faith in the justice system.

​"I have to admit I am convinced. I can't not be convinced — I went through the trial," she said.

"We wanted to know what happened to Candace, and we will always be grateful to the justice system for taking it up. We have the answers for ourselves. No one else has to have them.

​

"[But] everyone else needs to be satisfied, and we trust the process. We believe the process is good and needed. If there is doubt out there, let’s talk about it or drop it, whatever has to happen."

Derksen was 13 years old when she disappeared on her way home from school on Nov. 30, 1984.

Her body was found six weeks later, bound and frozen, in a storage shed not far from her family's home in Winnipeg's East Kildonan neighbourhood.

Derksen's death remained a public mystery until May 2007, when police came forward with new forensic evidence — numerous tests on a piece of twine used to bind the teen — linking Grant to the murder scene.

Despite their disappointment in possibly heading into another trial, the Derksens praised Grant's lawyer Saul Simmonds.

"I do appreciate the defence lawyers and we do admire Saul Simmonds. He's incredible," Wilma said.

"He's a bulldog, that man. That's awesome," said Cliff. "We need to clarify the questions and the situation and do it right, right? So that's good."

He then added, with a smile: "We made the mistake of asking him to make sure he did a good job, right at the beginning."

Defence lawyer plans to ask for bail

Grant has been behind bars since his conviction in 2011. Simmonds said he expects to apply for bail for his client.

"Of course from our perspective, Mr. Grant's DNA should have exonerated him, but we are thrilled we're in a position in which we have another opportunity to appear before a jury and be in a position in which we're able to demonstrate that," he told CBC News.

"You can well understand that a person who is faced with the trauma of a conviction, learning that they're in a position in which they can go back and try and prove their innocence again has a huge sense of relief, but meanwhile an innocent man sits in jail."

[We] still hope that clearer heads would prevail and that they would not proceed against Mr. Grant, but if we have to go to trial again, then so be it.- Saul Simmonds

Although the court has opened the door to a new trial, it is up to the Crown prosecutors to decide if they want to pursue that, or just drop the case against Grant altogether.

If the Crown does decide to proceed to trial, it will likely take some time before the case is in court again, because evidence has to be reviewed and witnesses have to be gathered, Simmonds said.

"Our hope would still be that the Crown would balance the evidence that we have now presented, including the new DNA evidence, in order to establish the fact that they are in review of the case,” he said.

“[We] still hope that clearer heads would prevail and that they would not proceed against Mr. Grant, but if we have to go to trial again, then so be it.

"I think the fresh evidence that we made available to them at the Court of Appeal level should demonstrate very strongly that Mr. Grant is not the person who is responsible for the Derksen death.

"From our perspective, they now have that in their possession. They've obviously been able to consult with their experts, and they should be taking that into account before they put him to trial again." 

Province weighing whether to retry Grant 

Manitoba Justice Minister James Allum said his department is reviewing the Supreme Court's decision. 

In a statement, he said Manitoba Justice will make its decision about a possible new trial for Grant for the murder of Candace Dersken "within the shortest time frame possible."

"Our thoughts go out to the Derksen family on this very difficult day," he added.

Grant's rights compromised, says law prof 

David Milward, associate professor of law at the University of Manitoba, said while he sympathizes with the Derksen family, the Supreme Court made the right call. 

"The basic problem was that the defence in the original trial raised the possibility that there was another suspect," he said. "This was an ongoing police investigation while Mr. Grant was himself in detention awaiting trial." 

Milward said the goal of the justice system is to get the right person, and questions have been raised about whether that happened in this case. 

"That other investigation bore marked similarities to what happened to Candace Derksen. Another girl got abducted, was left in an empty remote boxcar, tied with twine, the same knot and also a markedly similar gum wrapper - blue brand - was left at each scene. In fact, to take it a little further, the police during this investigation took this other girl to Candace Derksen's funeral service in hopes that that other perpetrator would show up at the funeral service and that girl could identify him." 

Milward said the information was all noted in the trial, at the appeal, and in the Supreme Court decision. 

"It's pretty easy to say there's something substantial to fingering this other unknown perpetrator. It's not mere speculation, so it should have been allowed in. And it was a legal error to not allow the defence to bring that other evidence of that other police investigation into the original trial so the accused, Mr. Grant's, right to a fair trial was compromised." 

Milward said it will not be an easy decision for the province and it may take Manitoba Justice weeks or even months to decide whether to proceed with a new trial for Grant.

"There's a Charter right that everyone has to be tried within a reasonable time," he said. "As time goes by, witnesses' memories start to fade, or physical evidence deteriorates or goes missing or gets thrown out. So to not try an accused within a reasonable time, it also has implications for getting a fair trial. And I think there are similar concerns that apply here. All the concerns about eyewitnesses' memory and the loss of physical evidence - they're even more pronounced now. So I am concerned this is a difficult trial to really hold." 

Milward said it if were up to him, he wouldn't. 

"My advice to the Crown might lean in favour of letting this go," he said, even as he acknowledged that would be an unpopular decision for Manitobans.