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.”
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 precedence for his request that the case be stayed.