‘Glimmer of hope’ for man acquitted in Candace Derksen’s murder after province loses 2nd try to toss suit

Posted on June 4, 2024 by Peggy

A Manitoba judge has rejected the province’s second attempt to toss a lawsuit filed by the man who spent a decade behind bars for the 1984 murder of Winnipeg teen Candace Derksen, but was later acquitted of the crime.

In a decision dated May 31, Manitoba Court of King’s Bench Justice Jeffrey Harris says Mark Grant has grounds to argue he was maliciously prosecuted, after he was acquitted during a 2017 retrial of second-degree murder in the death of the 13-year-old.

“It is not plain and obvious that Mr. Grant’s claim has no chance of success” — a requirement for legal proceedings to be tossed, Harris’s decision says, allowing Grant’s suit to go ahead.

“Mark Grant spent 10 years in jail for a murder that he didn’t commit,” Lawrence Greenspon, Grant’s lawyer, told CBC on Tuesday.

“This decision, and the ability to proceed with the civil claim going forward, does give him — I would say — a glimmer of hope.”

A jury initially convicted Grant, now 61, of second-degree murder in 2011. A retrial was ordered after his defence team argued possible evidence suggesting a different killer was improperly excluded from the first trial.

In 2019, Grant filed a lawsuit naming 13 defendants, including the government of Manitoba, and seeking $8.5 million in damages, alleging “negligent investigation, malicious prosecution, breach of his Charter rights and wrongful conviction.”

The province later moved, unsuccessfully, before the court’s then senior master, Karen Clearwater, to have the claim struck.

After Clearwater ruled against the province in 2023, it appealed her decision.

The province argued Grant has not demonstrated two of four elements needed to prove malicious prosecution: that there was an “absence of reasonable and probable grounds” for the Crown to prosecute him, and that there was malice in the prosecution, according to Harris’s decision.

He ruled Grant has “adequately” argued that the Crown prosecutors in his initial 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.

Prosecutors relied on ‘flawed science’: suit

Grant was arrested and charged for Derken’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 were bound with twine.

A teen girl with shoulder-length dark hair smiles. — Candace Derksen, 13, disappeared in November 1984. Her body was found in January 1985. (CBC)

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

In 2013, the Manitoba Court of Appeal ordered a new trial for Grant, saying the original judge didn’t consider some evidence in the 2011 trial that could cast doubt on Grant’s guilt.

At the end of Grant’s retrial, Justice Karen Simonsen concluded that DNA evidence used to convict him was “seriously flawed,” Harris’s decision says.

Grant claims prosecutors 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.

If validated, Harris says any of those claims would serve as proof of malicious prosecution.

The province has argued Grant’s lawsuit abuses the court process, calling it “a collateral attack” on the court’s previous decisions in Grant’s case.

Harris rejected that argument, citing the Crown’s “alleged failure to continually evaluate the prosecution in light of evidence that the DNA evidence and DNA expert were demonstrably unreliable.”

WATCH | Grant acquitted in 2017:

‘Mr. Grant is crying and grateful that the system has worked’

7 years ago

Duration 1:01

Lawyer Saul Simmonds on what’s next for Mark Edward Grant, after being found not guilty of second-degree murder in the 1984 death of 13-year-old Candace Derksen.

However, Harris did strike down parts of Grant’s lawsuit that he determined “are 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.

A provincial spokesperson declined to comment on the decision to CBC Tuesday, but said it is being reviewed.