Manitoba can challenge lawsuit by man acquitted in Candace Derksen's murder, judge rules

The Manitoba government has grounds to appeal a 2024 decision that allowed the man who spent a decade behind bars for the 1984 murder of Winnipeg teen Candace Derksen — but was later acquitted of the crime — to sue the province and the city, a judge has ruled.

In 2023 and 2024, provincial lawyers failed to have the court toss Mark Grant's 2019 lawsuit — which names 13 defendants, including the province, and seeks $8.5 million in damages, alleging he was maliciously prosecuted and wrongfully convicted of Derksen's death.

The province's lawyers argued that Grant's lawsuit had not demonstrated two of four elements needed to prove malicious prosecution: that there was no "reasonable or probable cause" for the Crown to prosecute him, and that prosecutors were motivated by malice.

Last year, a judge ruled Grant "adequately" argued that the Crown prosecutors in his initial 2011 murder trial did not have reasonable grounds to continue their case against him, after they received evidence that put the reliability of their DNA evidence and DNA expert in question.

But Manitoba Court of Appeal Justice Marc Monnin says that decision did not acknowledge the fact that an appeals court panel said in 2013 that while they had some concerns with the DNA evidence used to convict Grant, it "did not make the conviction unreasonable."

The panel also said there was evidence that a "properly instructed jury could (reasonably) convict," according to Monnin. 

The province argued that Grant's accusation of a lack of reasonable grounds in his conviction could not be proven because it was inconsistent with the panel's 2013 findings, and was an abuse of the court process, Monnin said.

"I am satisfied that the grounds of appeal raised by the provincial defendants are of sufficient importance to merit the attention of a full panel of this court," Monnin said in a written decision dated Friday.

"The issue of whether there is a reasonable cause of action is an issue that can determine the outcome of the proceedings and bring it to an early conclusion without the necessity of what will likely be a long, drawn-out trial."

Grant was arrested and charged for the 13-year-old's killing in 2007, more than 20 years after the Winnipeg teen's frozen body was found in a brickyard storage shed near the Nairn Overpass.

She was found less than 500 metres from her family's home in January 1985, almost seven weeks after she went missing while walking home from her school. The teen, who died of exposure, was found wrapped in blankets, and with her hands and feet bound with twine.

Grant's lawsuit claims prosecutors in his initial 2011 trial knew the only evidence linking him to Derksen's murder was "based on flawed science."

The Manitoba Court of Appeal overturned Grant's conviction and ordered a new trial in 2013, saying the trial judge erred in not allowing the defence to present evidence that pointed to another possible killer, after a second girl tied up in a similar way to Candace was found in a boxcar along the CP railway tracks near Chalmers Avenue in 1985 while Grant was in custody.

'Simply bald conclusions': province

The Supreme Court of Canada later upheld the appeal court's ruling in 2015. Grant was acquitted in a 2017 retrial, with the judge concluding that DNA evidence used to convict him was "seriously flawed."

Grant's lawsuit alleges he was maliciously prosecuted because the Crown pushed their case against him through both trials, either to solve an outstanding cold case, prevent legal action by Grant and/or to protect their reputations.

But provincial lawyers argued that that claim was based upon "simply bald conclusions" that were not elaborated and were therefore insufficient proof of malicious prosecution, according to Monnin.

Monnin also ruled that the province's lawyers had grounds to appeal whether Grant's malicious prosecution allegation was sufficiently proven.

CBC News reached out to Grant's lawyer, Lawrence Greenspon, for comment, but did not hear back prior to publication.

While the province failed to have Grant's lawsuit dismissed twice, his statement of claim was also amended twice, Minnon wrote.

Last year, a judge struck down parts of Grant's lawsuit that were "not supported by the facts or the law or are an abuse of the court's process," including a claim that there were no reasonable grounds for prosecutors to initiate legal proceedings against him for Derksen's murder.

In 2023, another judge struck down a paragraph of the lawsuit that alleged systemic bias had a part in Grant's conviction but did not provide further detail, according to Monnin.