This article below describes some of the issues discussed.
Winnipeg Free Press - ONLINE EDITION
Supreme Court hears arguments for new trial in Candace Derksen murder
By: Mia Rabson
Posted: 11/14/2014 8:35 AM Last Modified: 11/14/2014 2:38 PM | Updates
OTTAWA – Defence lawyers for the man convicted of killing 13-year-old Candace Derksen told the Supreme Court of Canada today there is new evidence the DNA used to convict him was improperly tested and that a juror in the case was clearly biased against their client.
The high court heard arguments today to determine whether Mark Edward Grant’s conviction for second-degree murder in the case should be reinstated. The 2011 conviction was overturned last year by the Manitoba Court of Appeal, which said evidence of a similar case to Derksen’s should have been admitted during Grant’s trial.
Grant’s lawyer, Saul Simmonds, argued in favour of that finding this morning, but also pointed to two other reasons the conviction should not be reinstated.
Derksen was abducted in 1984, bound with rope and left to freeze to death in a shed. The case went cold for years. In 2007 Grant was arrested based on DNA evidence found on the rope used to bind Derksen.
The DNA evidence – tested at a private lab in Thunder Bay in 2007 – was contested during the trial but Simmonds says he now has a new expert who believes there was fault with the DNA testing that was not raised at trial.
He said the sample was tested three times, and the first two times it didn’t come up with a result but the third test did and that matched to Grant.
Simmonds says he has a DNA expert who says that is improbable unless somehow the third test was run in a different way, and that if it was that is a "serious quality assurance" issue.
Grant’s defence team also argued there was clear juror bias in the original trial after one of the jurors spoke to a reporter once the trial was over. The juror, the defence team argued, indicated she believed Grant was guilty before the trial was over, and also indicated she had stopped paying attention to the evidence and was instead studying the people in the gallery of the courtroom.
Crown disputes both arguments
Manitoba Crown Attorney Ami Kotler disputed both arguments. He said the DNA evidence wasn’t improperly tested and that the explanation for the different results is available from the private lab’s reports. He said it was a matter of the quality of the first two tests not being very good.
He also said the juror’s comment was that she believed Grant was guilty after the first day of the trial on which only the Crown had presented evidence, and to infer that meant she no longer had an open mind was not fair.
The judges on the court asked no questions about the juror bias question but did express concern that the DNA evidence Simmonds was raising was not new, but more a matter of him shopping around for experts until he could find one who said something different.
Justice Rosalie Abella said she would be convinced it was new evidence only if Simmonds had an expert who could say the sample had been tampered with.
Hearing focuses on case of second girl
The majority of the hearing this morning surrounded whether or not Grant didn’t receive a fair trial because the trial judge refused to allow evidence of the second case to be presented. That case involved a 12-year-old girl who was found in an abandoned boxcar, tied up with rope, nine months after Derksen’s killing. The girl was found by a witness who is now deceased.
The victim, now an adult, testified under oath as an adult that the incident had actually never happened.
Kotler told the Supreme Court today the evidence gathered in the case did not show clear links to the Derksen murder and to allow the jury to hear the evidence was too risky. Kotler suggested allowing in evidence with such flimsy connections doesn’t meet established legal tests and could mean an accused could try to bring in evidence of cases with no clear connection to their own, but for which they have an alibi.
He said the two biggest alleged connections – the discovery of the same brand of gum wrapper in both locations and the knot used on the rope bindings – are not actually legitimate. The gum was found in different ways and the rope bindings were completely different, even if there was some similarity in the type of knot used, said Kotler.
Simmonds told the court "common sense" dictates there are clear ties between the two cases, noting the similarity in age of the girls, the fact there was no apparent motive for the crime, the fact neither were sexually or physically assaulted, were left fully clothed, and were left tied up with rope in an isolated location pretty close together.
Grant remains in custody awaiting the outcome.
The court reserved its decision. If the court agrees with the Appeal court to overturn Grant’s conviction, Manitoba Justice will have to decide whether to hold another trial or let the case drop.