Friday 27 October 2017

Did Mark Grant really murder the 13-year old girl?
This is a very long article but it is also a very important one if someday you are unfortunately charged with a crime and you choose to be tried by a judge and jury, In this article, you will learn just how a judge gives instructions to the jury. Bad instructions can get you free if you are guilty and convicted if you are innocent.

Candace Derksen was a 13-year-old school girl living in Winnipeg, Manitoba, Canada who went missing on November 30, 1984.  She left her school in the afternoon of that date, presumably on her way back home, but she was never seen alive again. Her body was discovered on January 17, 1985, hogtied and frozen in a shed in an industrial yard.  She had died of hypothermia as a result of exposure.

The police suspected that Mark Edward Grant was the man who murdered the girl. Parole and court documents describe the 54-year-old's criminal past, which included victimizing girls long before he was ever accused of Derksen's murder. Before his arrest for her murder, Grant had served time for three separate assaults on females during the 1980s.  Parole documents raised consistent concerns over Grant's sexual desire for young, vulnerable women and girls for sexual gratification.

At age 14, he sexually assaulted a female of an undisclosed age and was sent to a youth detention centre. As a teen, Grant was charged with breaking and entering, fraud, forgery, breach of parole, escaping from custody and being unlawfully at large. His first sexual assault charge as an adult came in 1988. Then in his mid-20s, Grant was accused of sexually assaulting, uttering threats to and unlawfully confining a female, (age unknown) who lived with her mother at the time of the trial. Grant was found guilty on the three charges at the 1988 trial. On appeal, he was handed an 18-month sentence. The following year, Grant was accused and later convicted of sexually assaulting 16-year-old Cynthia Bent and sentenced to four and half years in prison, later reduced to just four years in prison.

Less than two weeks after being released from the Bowden Institution in Alberta, Grant was accused of a third sexual assault, in 1994.   As an aside, in 1955, I was the program director of the young offenders unit at the Bowden Institution. 

Grant, then 32, was convicted of choking and sexually assaulting a female whose age is not documented and sentenced to the maximum penalty of 10 years minus time already served while waiting for his trial.

During the Parole Board of Canada review in 2001, Grant confessed he had raped a drunk stranger and that the attack never resulted in charges.he did not say when the sexual assault occurred. The Board said, in part; “”You have been predatory in your choice of victims, often looking for unsophisticated and vulnerable post-pubescent female children.”

Grant has been diagnosed with schizophrenia and in the early 2000s, he was prescribed medication to control his symptoms, which included medication to control his sexual urges. He took his psychiatric medications off and on instead of taking them as scheduled. The parole board noted Grant has frequently attempted suicide.

The Parole Board of Canada had previously denied Grant parole repeatedly due to concerns that he was likely to reoffend because he had shown little progress with ‘internalizing sex offender relapse prevention concepts’ The parole board concluded that Grant targets young women because as he told the parole board, “they are so trusting.”

In 2003, the parole board said that he was likely to commit another sexual offence involving a child before his parole was completed.

Despite the Board’s official observations, Grant was finally released on parole. Now that doesn’t necessarily mean that he murdered Candace Dirksen.

His history of sexual attacks against young women and girls certainly is horrific but was it enough for the police to presume (rightly or wrongly) that he was the man who murdered the little 13-year-old girl?   Nevertheless, the Winnipeg police arrested him anyway.     

I will say this from the get go that having a record like Grant has isn’t necessarily proof that he murdered the 13-year-old girl but it is enough for the police to want to question the man.

They questioned him and on May 16, 2017, the police charged him with the murder of Candace Derksen on the basis of newly obtained DNA testing that matched hairs found on the deceased’s body with his own and also matched his DNA to DNA found on the twine used to hogtie her. That was pretty convincing evidence.

He was tried for her murder and found guilty of murder and sentenced to 25 years minimum in prison. He appealed that decision and on his second trial, he was acquitted. The Crown (Prosecutor’s office) appealed that acquittal and the case ended up in the Manitoba Court of Appeal.

The outcome of the second trial was decided on contradictory DNA evidence.  The expert called by the Crown, Dr. Amarjit Chahal, was of the opinion that the probability that a randomly selected and unrelated person other than the accused being a contributor to the mixed DNA profile from the twine, is one in 50 million. 

The expert called by the defence was Dr. John Waye, who said  that the scientific approach by Dr. Chahal was faulty and that the accused should have been excluded by the DNA samples Unfortunately, Dr. Waye was unable to do his own testing because all of the degraded DNA samples had been used by Dr. Chahal and his colleagues.

Please note that when I refer to the word “appellant” I am actually referring to his lawyer.

The appellant raised ten grounds of appeal with respect to his conviction including an allegation that the verdict was unreasonable.  Of the grounds raised, some dealt with the admissibility of evidence while others alleged errors made by the judge in his instructions to the jury. 

In addition, the appellant moved a motion seeking to have fresh evidence adduced at this stage in the proceedings, which, if allowed, should have justified the setting aside of his conviction and warrant the holding of a new trial.  The fresh evidence was mostly related to the issue of DNA analysis.  The reasons would later  l become self-evident.

The judge who wrote the decision of the three judges in the Manitoba Court of Appel decided that he didn’t need to rule on that particular motion however he decided that he would do so at the end of his reasons since he would have some obiter (Latin for a word that says in other words, (by the way) comments with respect to that motion as well as certain disclosures made by a juror following the sentencing of the accused.
The judge said that he didn’t think that some of the grounds submitted were worthy of consideration however, he decided to look into other grounds that were raised with respect to the sentence imposed against the accused. They were: (1) that the verdict was unreasonable; and (2) that the judge erred in not providing a proper instruction to the jury (3) that the judge’s instructions to the jury did not reflect a proper balance of the evidence led by the Crown and the accused; 4) that the judge failed to deal in his instructions with the concern that the jury might be overwhelmed by DNA profiling evidence; and (5) that the judge erred in not allowing the accused to lead evidence of an incident similar in nature to what occurred in this case and which the accused alleges would have helped exonerate him.                                 

The judge said, “I am not persuaded that the trial judge erred in how he instructed the jury.  While I have concerns about the verdict given the DNA evidence, those concerns do not permit appellate intervention on the basis that the verdict was unreasonable.  However, I am of the view that appellate intervention is warranted with respect to the fifth ground articulated above.

The judge said, “Firstly with the ground of appeal that the verdict was unreasonable because it is such a crucial ground of appeal for the accused, and because it will provide helpful background to explain the nature of this trial.  In dealing with this ground, there is no doubt that the DNA evidence linking the accused to the deceased was crucial to his conviction and that, without that evidence, there was no possibility that the Crown could have proven the accused’s guilt beyond a reasonable doubt.  Not surprisingly therefore, the thrust of the accused’s argument with respect to the unreasonableness of the verdict is directed to the unreliability of the DNA evidence generally, but more specifically, to the Crown’s main expert, Dr. Chahal.  The accused puts into issue his expertise in dealing with degraded DNA, the methods he followed in his analysis and the conclusions that he reached.  Counsel for the appellant also argues that, in his evidence, Dr. Chahal was unclear, often times unresponsive and generally vague in many of his responses.” unquote

The appellant further argued that, in the face of the expert DNA evidence that he led, Dr. Chahal’s evidence should have been rejected, or at the very least, should have raised legitimate reservations and a reasonable doubt in the minds of the jurors as to its reliability.  He argued that there was no reason to reject the evidence of Dr. Waye who opined that Dr. Chahal had simply disregarded evidence that excluded the accused as a donor of the DNA on the twine that bound the deceased.  In other words, the issue at trial was the credibility of the experts.

All of the issues raised by the Appellant with respect to this ground of appeal had to be considered in light of the most recent decision of the Supreme Court of Canada dealing with appellate intervention in cases where the issue of an unreasonable verdict is raised by the Supreme Court of Canada which was released within days of this appeal being heard.  Cromwell J., in writing for a unanimous Supreme Court, set out the issue the court was dealing with in these words;

“A jury found the respondent guilty of sexual assault, but the Court of Appeal concluded that the jury’s finding was unreasonable, set it aside and entered an acquittal.  The Crown appeals, arguing that the Court of Appeal wrongly substituted its assessment of witness credibility for that of the jury.  The appeal therefore raises the issue of an appellate court’s role when it assesses the reasonableness of a jury’s guilty verdict based on the jury’s assessment of witness credibility.”

He then stated the following with respect to the standard by which an appeal court is to conduct the review when he wrote in his decision:

“Of course, a jury’s guilty verdict based on the jury’s assessment of witness credibility is not immune from appellate review for reasonableness.  However, the reviewing court must treat the verdict with great deference.  The court must ask itself whether the jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conclusion reached by the jury.  Here, the Court of Appeal did not follow this approach.  It asked itself instead whether an experienced trial judge could give adequate reasons to explain the finding of guilt and, having answered that question in the negative, found the verdict unreasonable.  In my respectful view, the Court of Appeal applied the wrong legal test and reached the wrong conclusion.” unquote

He then went on to explain more fully the limited role that an appellate court can exercise when reviewing a conviction for reasonableness.

“Appellate review of a jury’s verdict of guilt must be conducted within two well-established boundaries.  On one hand, the reviewing court must give due weight to the advantages of the jury as the trier of fact who was present throughout the trial and saw and heard the evidence as it unfolded.  The reviewing court must not act as a “13th juror” or simply give effect to vague unease or lurking doubt based on its own review of the written record or find that a verdict is unreasonable simply because the reviewing court has a reasonable doubt based on its review of the record.” unquote

On the other hand, the review cannot be limited to assessing the sufficiency of the evidence.  A positive answer to the question of whether there is some evidence which, if believed, supports the conviction does not exhaust the role of the reviewing court.  Rather, the court is required to review, analyse and, within the limits of appellate disadvantage, weigh the evidence and consider through the lens of judicial experience, whether judicial fact-finding precludes the conclusion reached by the jury.

Thus, in deciding whether the verdict is one which a properly instructed jury acting judicially could reasonably have rendered, the reviewing court must ask not only whether there is evidence in the record (transcript) to support the verdict, but also whether the jury’s conclusion conflicts with the bulk of judicial experience.  

Cromwell J. wrote;

“It is for the jury to decide, notwithstanding difficulties with a witness’s evidence, how much, if any, of the testimony it accepts.” unquote 

It turns not only upon such factors as the assessment of the significance of any alleged inconsistencies or motives for concoction, which may be susceptible of reasoned review by a court of appeal, but on the demeanour of the witness and the common sense of the jury, which cannot be assessed by the court of appeal since that court wasn’t at the trial.  The latter domain is the “advantage” possessed by the trier of fact, be it judge or jury, which the court of appeal does not possess and which the court of appeal must bear in mind in deciding whether the verdict is unreasonable. The jury is entitled to decide how much weight to give to factors such as inconsistency and motive to concoct. 

In considering the reasonableness of the jury’s verdict, the court of appeal must also keep in mind the fact that the jury may reasonably and lawfully deal with inconsistencies and motive to concoct, in a variety of ways. 

The jury may reject the witness’s evidence in its entirety.  Or the jury may accept the witness’s explanations for the apparent inconsistencies and the witness’s denial that her testimony was provoked by improper pressures or from improper motives.

Finally, the jury may accept some of the witness’s evidence while rejecting other parts of it; juries are routinely charged that they may accept all of the evidence, some of the evidence, or none of the evidence of each witness.  It follows that judges cannot infer from the mere presence of contradictory details or motives to concoct that the jury’s verdict is unreasonable.  A verdict of guilty based on such evidence may very well be both reasonable and lawful. 

To sum up on this particular issue, the reviewing court must be deferential to the collective good judgment and common sense of the jury.  The court of appeal reviewing for unreasonableness must keep in mind that the jury may bring to the difficult problem of determining where the truth lies and special qualities which appellate courts may not share.

The judge in the Court of Appeal said, “In light of the above, I conclude that the accused cannot succeed on this particular ground of appeal.” unquote 

The judge then considered the issue as to whether or not the jury’s decision was reasonable?

The judge said;

“While the accused’s arguments dealing with the reliability of Dr. Chahal’s evidence and the reasonableness (or lack thereof) of a conviction grounded on that evidence cause me some unease with respect to the verdict, that unease, however, is not enough to establish an unreasonable verdict.” unquote

The next ground of appeal was one that was not specifically pleaded by the appellant, but came about at the court’s bidding during the course of argument because of conflicting evidence on a critical issue that was left with the jury. It was whether the instruction should have been provided to the jury given the fundamental conflict between the expert DNA evidence adduced by both the Crown and the appellant, notwithstanding the fact that the appelant himself did not testify at his trial.

The now classic instruction with respect to the rule of reasonable doubt and how it applies to credibility findings that are to be made on conflicting evidence relating to critical issues.  It is normally called into play when an accused has testified and the trier of fact is left with an issue of credibility as between the Crown’s witnesses and the accused’s denial. 

In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to whatever issue is proposed.  The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused.  Second, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole.

A trial judge might well instruct the jury on the question of credibility along these lines: “First, if you believe the evidence of the accused, obviously you must acquit.  Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”

In this present case I am submitting to you.  the accused  in his trial did not testify, but, in his statements which had been allowed into evidence, he denied that he committed the offence.  The judge provided the above instruction to the jury with respect to those statements and previous statements made to the police as follows:

“When you review any of the out of court denials made by the accused, either in the December 10th, 1984 conversation, or in the May 16th, 2007 video statement, it is important that you remember the following direction.  If you believe the accused’s denials to the police, you must find him not guilty of the offence charged.  Even if you do not believe the accused’sdenials or explanations that he did not kill Candace Derksen, if any part of them leave you with a reasonable doubt about his guilt or about an essential element of the offence charged, you must find him not guilty of the offence charged. Even if any part of [the accused’s] denials or explanations to the police do not leave you with a reasonable doubt about his guilt or about an essential element of the offence charged, you may convict him only if the rest of the evidence (in court) that you do accept proves his guilt beyond a reasonable doubt.” unquote

The key issue, however, still came down to a question of the credibility of the two DNA experts.  It was because of this fact that members of the court of appeal while hearing this appeal asked appellant’s counsel to address the issue of whether a specific  instruction (one suggested by a higher coiurt) should also have been given to the jury in order to help it in its deliberations with respect to this conflicting evidence.

The trial jusge when addressing the jury said, “Insofar as the testimony of Dr. Waye challenges processes, analyses and conclusions of Mr. Hildebrandt and Dr. Chahal, there is obviously a disagreement between the expert opinions.  The issue about which these experts differ touches critical evidence which goes to an essential element of the offence charged.  It goes to the question of identity and whether or not the DNA evidence will satisfy you that the accused was in the shed in question and, more importantly, whether the accused, abandoned the hogtied Candace Derksen and thereby caused Candace Derksen’s death.   The essential element, is something the Crown must prove beyond a reasonable doubt before you may find the accused guilty.  You must not decide this issue simply by feeling that you must choose one expert opinion over the other. Before you accept the opinions of the Crown counsel’s experts on this issue you must be satisfied beyond a reasonable doubt that they are correct.  If you are not sure that they are correct, then Crown counsel has failed to prove beyond a reasonable doubt the element of identity, or put differently, the accused’s connection to the unlawful death of Candace Derksen.” unquote

He then said,” Now in presenting to you, as I have, the positions of the Crown and the defence one after another or side by side, I wish to caution you against a comparative analysis whereby you simply choose one position that you may prefer over the other. To reason in that manner and to come to a verdict as a result of simply choosing between the position of the Crown and the defence is wrong in that it neglects what I have repeated to you throughout my instructions, that is, it is the Crown that has the onus of proving the charge beyond a reasonable doubt. That responsibility never shifts.” unquote

 The appellant argued that the judge effectively shifted the burden of proof to him.He argues that the jury should have been told specifically that only if they did not accept his denial and Dr. Waye’s evidence should they go on to consider if there was evidence on which to convict.  Instead, the judge incorrectly left it to the jury to choose between his (the witness)  evidence and that led by the Crown, which of course included Dr. Chahal’s evidence, and committed the credibility contest error

The judge writing the court of appeal decision said in response;

“The Crown, and quite rightly so I find, argued (during his argument in the court of Appeal hearing) that the judge never instructed or invited the jury to choose which expert they preferred.  The Crown further argued that an (based on a higher court deceison) instruction was not required in this case, relying on (R. v. Paul decision). However, if such was not the case, the judge nevertheless covered the essential elements that needed to be covered and did so in an acceptable manner.” unquote

 The Paul  decision of the Ontario Court of Appeal was where the accused was charged with first degree murder and the sole issue was one of identity, with DNA evidence being relied upon to prove the identity of the accused. 

Counsel for the appellant made several closely linked submissions concerning the DNA evidence and the burden of proof. Ultimately, he argued that the jury should have been told that if it had a reasonable doubt as to whether the accused could be excluded as the donor of the DNA at any of the sites tested, it must acquit the accused.

While the DNA evidence did not stand alone, it was certainly central to the Crown’s case.  It is fair to say that a jury acting reasonably could not have convicted the appellant without accepting the evidence of the Crown expert.  The trial judge’s instructions made the importance of the expert DNA evidence crystal clear.  There can be no doubt that the jury appreciated the importance of that evidence.  

The judge writing the decision said;

“We reject the submission that the trial judge was obliged as a matter of law to tell the jury that a doubt about one aspect of the testimony given by the expert, as important as that piece of evidence might have been, would necessitate an acquittal.  The jury had to assess the totality of the expert’s evidence and place it in the context of the rest of the evidence.  The burden of proof and the appellant’s entitlement to an acquittal if the jury had a reasonable doubt on the totality of the evidence was properly and repeatedly explained to this jury.” unquote

The Appeal Judge said, “The principles underlying (another decision) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses.  They have a broader sweep.  Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown’s case, the trial judge must relate the concept of reasonable doubt to those credibility findings.  The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused’s guilt  In that event, they must acquit.” unquote

The Court of Appeals said; “In the present case, I am satisfied that the judge’s charge to the jury complied with the principles underlying W.(D.), even though he did not use the wording suggested by Cory (of the Supreme Court of Canada) in  W.(D.) with respect to the conflicting expert evidence.  The jurisprudence is clear that he did not have to do so.  By using the language that he did, the judge avoided the credibility contest error identified by Justice Binnie (of the Supreme Court of Canada),  When the charge is read as a whole, it is clear that the judge respected the substance of the proper  principles and never placed the jury in the position of choosing between the evidence of the two experts.  The judge made it clear that if the jury accepted the evidence of Dr. Waye or if that evidence made them unsure about the evidence of Dr. Chahal, the Crown could not prove its case beyond a reasonable doubt and the accused should be acquitted.  The trial judge  never shifted the burden away from the Crown. Accordingly, I would dismiss this ground of appeal. unquote

The appellant asserted that the judge’s instructions to the jury did not reflect a proper balance of the evidence led by the accused and the Crown and that he failed to deal explicitly with the concern that the jury might be overwhelmed by DNA profiling evidence.  The accused’s major contention with respect to lack of balance is that, when reviewing the evidence for the jury, the judge did not do so in a similar fashion as between the evidence called on behalf of the accused and that called by the Crown.  More specifically, the appellant alleges that when referring to the evidence of Dr. Chahal, the judge only referred to his evidence in chief and left the impression that the accused’s perspective, with respect to Dr. Chahal’s evidence, was grounded in the “contention of the defence” rather than evidence.

The appellant also strongly argued that the judge failed to sufficiently caution the jury as to the frailties with respect to the DNA evidence that was before it or that he failed to warn the jury of the potential pitfalls in considering and relying on such evidence.

He also alleged that the judge failed to properly put Dr. Waye’s evidence before the jury.  By not doing so, the Apellant argue that the judge failed to point out to the jury in a sufficiently forceful and clear manner, the deficiencies and the lack of reliability that should be attributed to Dr. Chahal’s evidence, especially in the face of Dr. Waye’s evidence, which he asserted was more accurate, more detailed, more scientifically sound and therefore more credible than that of Dr. Chahal.

The  appellant also argued that the judge’s instructions were not specific enough in explaining how the statistical evidence derived from DNA should or should not be used.  He argued that the judge had a duty to insure that the jury was not mesmerized by the DNA evidence it had to sift through, and that he should have provided them with a specific caution as was done in  the cse, R. v. Terceira (1998).

The issue in Terceira revolved, to a certain degree, around the reliability of what was then in 1998 considered novel evidence, with respect toDNA.  The judge had provided the following instruction to the jury as set out in the Ontario Court of Appeal reasons. He quoted part of what that vourt said when reviewing hat particular case .

“There was evidence that challenged the conduct of the DNA tests and evidence that challengedthe results.  These were reasons for the court to take a good close look at the DNA evidence and  all the evidence the trial judge heard from the Crown and the defence and scrutinize it to see if the judge considers it reliable as a piece of circumstantial evidence. You have obviously followed it closely, spent a lot of time in court looking at the autorad projections, various aspects of the bands and their measurement and interpretation.  You’ve seen those from both sides. I don’t intend to repeat all of that. You have part of it, or small parts of it, anyway, in some of the material in front of you.  You followed it very closely.  I am confident you will use your common sense, you won’t be overwhelmed by any aura of scientific authority advanced by any of the DNA witnesses.  The assessment of the evidence really does boil down to a common sense assessment of the evidence, of the various opinions that you have heard, your assessment.

The DNA tests in yhat case were conducted soon after the Toronto Centre of Forensic Labs opened itself for DNA case work. (as an aside, I wrote a paper on that subject at that time for a law journal with the lelp of the director of that Centre)

The appellant in this case I am submitting to you relied on that passage from Terceira, saying that this is what should have been provided to the jury in the present case.

At the conclusion of the evidence, the trial judge in his instruction should advise the jury in the normal way as to the limits of the expert evidence and the use to which it can be put. Additionally, in the case of DNA evidence, he or she would be well advised to instruct the jury not to be overwhelmed by the aura of scientific infallibility associated with scientific evidence. The trial judge should tell them to use their common sense in their assessment of the all of the evidence on the DNA issue and determine if it is reliable and valid as a piece of circumstantial evidence.

The apperal court judge in respoinse to the above said;

I disagree with these contentions.  The judge provided the jury with an extensive and detailed review of all of the DNA evidence as it was lead, by both the Crown and the accused.  He placed squarely before the jury the differences between the evidence and conclusions of Dr. Waye and Dr. Chahal.  The judge dealt with DNA evidence in a general manner and then went on to deal with more specific issues that were germane to the issue that the jury had to decide.  In my view, the judge dealt with a difficult and complicated matter in a manner that was more than adequate, and managed to render a difficult subject understandable to a non-scientist.”  unquote

The judge also said, “ I do not agree with the appellant that the instructions lacked balance.  In my view, the charge is well balanced, thorough and fair.  The accused is correct in alleging that the judge used different words in his review of the evidence, and possibly in setting out the theories of the defence and the Crown, but, in my view, those are distinctions in style and not substance.” unquote

He also said, “The judge presided over a long, complex and demanding trial and provided the jury with helpful instructions to help them understand the evidence they heard and, in particular, the complexities associated with DNA evidence.  The judge provided the jury with a general review of DNA evidence and what use could be made of it and then proceeded to review the evidence of all of the witnesses that provided such evidence.  As I have stated earlier in these reasons, in my view, he explained a difficult concept in a manner in which a lay person could relate and understand.  The judge provided the jury with a more than adequate charge and the grounds of appeal attacking that charge have not persuaded me that this court should intervene.  I would accordingly dismiss them.” unquote

The judge then moved to another argument submitted by the appellant.

“I now move on to the critical issue of the judge’s refusal, following a voir dire, (trial within a trial) to allow the accused to adduce evidence of an alleged unknown third-party suspect.  The appellant contended that some nine months after the deceased was found, there was a strikingly similar event perpetrated on another girl, P.W., at a time when the accused was in custody.  The police never arrested a suspect in connection with that event.  It was argued before the judge that the modus operand (method of operation) and other physical evidence suggested that the same person abducted both P.W. and Candace Derksen.” unquote

The trial judge set out the parameters of the inquiry before him as follows:

“And just to be clear for the record, we’re now into a voir dire in respect of the question of whether or not the defence should be permitted to either adduce evidence about or refer to details of an investigation involving the alleged complainant in this matter, P.W., (a woman in Winnipeg  )either under the auspices of the legal principles relating to third party suspect involvement or, as counsel for the accused suggested as well, what might be similar act evidence led at the behest of the defence.  So o the extent that I’ve already ruled that third party suspect evidence is evidence that normally has to be, has to be admitted only after some threshold evidence has been demonstrated respecting a link between the third party, known or unknown, and the crime before the court, it was determined that this voir dire would be, amongst other things, for the purposes of having counsel for the accused adduce that evidence.  It will also be, given what I think is the broader question about whether or not this might also be potentially similar act evidence, an opportunity for me to hear and assess all of that evidence under the rubric ( scale of values on which to rate each dimension of the case).

The appeal judge said; “As I understood it, the Crown counsel insisted that P.W. attend as the complainant in the investigation, to give evidence as part of counsel for the accused’s threshold evidentiary foundation and that’s about whom counsel for the appellant is now making a submission and whom he now intends, I think, to adduce as a witness.  So with that background and hopefully context, the record will be clear as to what this voir dire is about.” unquote

The trial judge was provided with evidence that suggested that on September 6, 1985, at a time when the accused was in custody, an adolescent by the name of P.W. had been abducted from a Winnipeg street and then found with her hands and feet tied in an empty railway boxcar situated in an area 2.6 kilometers from where Candace Derksen had been located in January 1985.  A Wrigley’s blue gum wrapper was found at both scenes.  The bindings on Candace’s wrists were tied with a “Granny Knot” and the bindings on P.W.’s wrists were described as a “Granny Knot.”

That would certainly be powerful evidence that could imply that thr appelant  didn’t murder the 13-year-old Candace. That is because is is highly unlikey that two murders would have the same  modus operand in such detail.

There was before the trial judge, extensive police reports of the incident involving P.W. and of the subsequent intensive investigation.  Those reports clearly seemed to indicate that the incident had occurred and that there were similarities between it and how the deceased was murdered.  There is even a report of investigators escorting P.W. to Camp Arnes, north of Gimli, Manitoba, where a memorial service for Candace Derksen was being held in the hope that her murderer might be in attendance and might be recognized by P.W. as her abductor.

As well, the judge had before him the statement of a now-deceased person (Ms Wadien) which was submitted for its truth with the consent of the Crown.  She was the person who had found P.W. in the boxcar while walking her dog.  She provided the following statement to police:

“On Sept. 6/85 at approx. 4:25pm I was walking my dog north bound along the CP railway tracks from Chalmers Av.  I was walking along the box cars.  I heard someone calling Help Help.  I kept walking and I could hear it getting louder.  It sounded like somebody was really scared.  So I called out where are you?  She didn’t say anything except help help.  I kept going towards the sounds.  When I came up beside the box car I could tell it was comming from inside there.  I looked inside because the door was open.  I saw her propped up against the north end of the box car.  She was sitting on her bum with her legs straight out in front of her with her back against the wall.  She was wearing black shoes suede, blue jeans and it was a brown kangaroo type jacket with the hood over her head.  She had a Super Valu plastic bag over her head but it wasn’t tied.  Her legs were tied at the ankles with a rubber type cord that was wrapped around her ankles once or twice.  Her wrists were tied in front of her in the same manner as her ankles.  She was crying and sobbing and kept repeating mommie mommie.  I untied her and took the bag off and she started getting up on her own and I helped her and she was a little unstable walking.  I told her it was okay and she was still sobbing and calling for her mom.  I helped her down from the car.  (box car) I asked her where she lived and she said McLeod.  I said she was a long way from home.  I explained that I lived close by and if she walked with me I’d drive her back.  I asked her what her name was and I thought she said P but she was some what incoherent and she was very quiet in speaking and she was sobbing the whole time.  We got to my house and she stayed by my car while I ran in to get my car keys.  We drove up Gateway and then McLeod.  On the way I asked her what the no. was and she told me 1056.  She directed me to her place.  I stopped at her place on the front street and she said we just passed her brother.  We went to her house and when we got to the door she pulled out the keys.  I asked her if anyone was home and she said no.  I offered to stay with her but she said her brother would be here shortly.  I asked her if she wanted to call police and she said no and that’s when her brother showed up.  He came in and she ran to him crying and hugged him.  I told him what happened.  I left them my name and phone no. (number) and left for home.  I told my family of the incident and they suggested I call police and I did.  I don’t know how she became bound or what happened and I did not ask her but her brother asked who had done it and if she knew who it was and she shook her head No.”  unquote

It certainly wasn’t the appellant in this case I am writing about since Grant was in custody at that time while wating for hs trial.

During the appellant’s trial, the trial judge heard testimony from P.W. Her evidence was problematic for two reasons, which the crimes might or might not be related to one another. 

Firstly, P.W.’s recollection of the events in 1985 was, to a certain degree, vague and seemed to contradict the statements that she had provided to the police at the time of the incident.  She often indicated that she could not remember and that she had dreams and not real memories.  When provided with an opportunity to review her 1985 statement during the course of her testimony, she declined.  In her cross-examination, she agreed with a suggestion put to her by the Crown that the 1985 incident had never occurred. 

Secondly, P.W. was interviewed at her home by two police officers several days before she was scheduled to testify.  It was a lengthy interview.  A reading of the transcript of that interview indicates that despite persistent and unrelenting questioning by the police doubting the veracity of her story, she maintained that the abduction had occurred.  Indeed, this prolonged and persistent questioning fairly raises the concern that the nature and manner of the inquiry may well have been the cause of her subsequent recantation.  Furthermore, on the day that she was to testify, P.W., notwithstanding the fact that she was being called upon to testify by the accused and not the Crown, was brought to the courthouse by the same police officers who had interviewed her previously.  When questioned about this, she testified that they gave her no option.

The accused’s lawyer argued before the trial judge that the “police interference” was cause for the court to be concerned about a wrongful conviction.

I should point out that when the Crown, the defence lawyer and the trial judge are discussing legal issues, it is always after the jury has been sent to the jury room. That is so they don’t hear the arguments before the final summations are presented to them.  

In the end, the judge refused to allow the accused to present evidence of what clearly occurred, at least based on the evidence of Rita Wadien and supported by the extensive police  reports. The judge ruled as follows:

``The defence sought a ruling from the court which would permit it to make reference to and adduce during the course of the trial evidence respecting police investigation number 85-4-152909. That investigation arose from an alleged kidnapping in 1985 involving the complainant, as she was then known  as P.W. `` 

The defence contended that such references to evidence from that file should be admissible as evidence of a potential third party involvement and/or on the basis of it being properly characterized as similar act evidence as proof that someone else used the same  method of tying up the victim as was done with the victim that Grant was acused of having done

The Crown opposed submitting that proposal based upon the applicable and governing test as set out in such cases. The evidence was neither relevant ‘nor probative’. (not having the effect of proof)

On an even more basic level the Crown submited that the defence application could not get out of the gate given the doubt that the court should have considered the question as to whether the kidnapping of P.W actually took place. 

The triall judge said; “I have concluded, after considering all of the evidence on this voir dire, including consideration for their truth the previous statements made by P.W., that notwithstanding what the defence argues is the possible involvement of an unknown third party and what the defence submits are certain strikingly similar aspects to the alleged kidnapping of P.W, that I am not, even on a balance of probabilities, able to conclude that the alleged offence happened.” unquote 

He then said; “Accordingly, pursuant to my role as gatekeeper and the person charged with the responsibility of ensuring the admission of only relevant, probative and admissible evidence, I have determined that there is an absence of sufficient probativeness such that was to justify in an already long and complex trial references to a crime which on a balance of probabilities I repeat I have found did not happen.” 

“Accordingly, pursuant to my role as gatekeeper and the person charged with the responsibility of ensuring the admission of only relevant, probative and admissible evidence, I have determined that there is an absence of sufficient probativeness such that was to justify in an already long and complex trial references to a crime which on a balance of probabilities I repeat I have found did not happen.  More specifically, I have determined that the defence not be permitted to make reference to anything from investigation number 85-4-152909 on the basis of the possible involvement of an unknown third party and/or on the basis of the defence arguments respecting similar act evidence. In that regard, respecting the argument concerning a possible third party suspect, given what I have concluded respecting  given that I have concluded that the alleged offence set out in investigation 85-4-152909 did not take place, there can be no unknown third party suspect arising from that investigation.” unquote

Without the information given with respect to another person committed the so-called other abduction, Grant was faced with being convicted of the murder of Candace.

The appellant argued before the Court of Appeal that, in denying his application to include the information about the other abduction,  the trial judge failed to provide adequate reasons, in the face of what was clearly contradictory evidence, as to the occurrence of the incident itself.  He alleged that the judge chose to give little weight to P.W.’s two statements in which she recounted her abduction and that he seemed to completely ignore the evidence of the extensive investigation the police conducted surrounding the incident, as well as Ms Wadien’s uncontradicted statement in which she described finding P.W. in the boxcar in 1985.  The accused further argued that the judge’s reasons fail to address those facts and further fail to address the law and its application when there are contradictory statements.

The fact that Ms. Wadien found P.W in the box car doesn`t necessarily mean that P.W didn`t fake her abduction in order to get some form of sympathy just like the dead girl`s family did. After all, she was cognizant of the fact that Grant had been arrested for abduction and murder and knew from the media as to how Grant t allegedly  tied up his so-called victim.

In reply, the Crown addressed this issue as being one of a third-party suspect.  The Crown argued firstly, that as the trier of fact in a voir dire, the judge was entitled to make the findings that he did and that those findings are entitled to deference from this court.  Secondly, the Crown argued that when the judge’s reasons are read in the context of the full voir dire they are adequate and supportable on the facts.

The Appeal Court judge said; “I find little merit with the accused’s argument that the judge’s reasons for refusing to admit the evidence are insufficient.”

The appeal jusge also said; “In R.E.M., (another court decision) this Court also explained that a trial judge’s failure to explain why he rejected an accused’s plausible denial of the charges does not mean the reasons are deficient as long as the reasons generally demonstrate that, where the complainant’s (P.W) evidence and the accused’s evidence conflicted, the trial judge accepted the complainant’s evidence.  No further explanation for rejecting the accused’s evidence is required as the convictions themselves raise a reasonable inference that the accused’s denial failed to raise a reasonable doubt. I am, however, concerned with the judge’s application of the law in refusing to admit this evidence.  The accused wanted to present evidence to the jury that, while he was in custody, a strikingly similar incident had occurred some nine months after the murder of Candace Derksen.  The theory of the defence was that the person who had committed the most recent incident was also responsible for her murder.” unquote

I can see where the appeal court judge was coming from. The appellant when he was then the accused, was denied the opportunity to have the jury decided if P.W was telling the truth because if she was, then it would have been highly unlikely that Grant would have murdered the 13-year-old girl and as such, he would have been acquitted of the crime of murder. The jury might have concluded that the girl was murdered by the man who abducted P.W. Of course if they didn’t accept her testimony, then Grant would be out of luck.

With respect to the evidentiary standard applicable to the air of reality test, the court must set out the following two-pronged question to determine whether there is an evidentiary foundation warranting that a defence be put to a jury; Is there (1) evidence (2) upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true?

This analysis requires the trial judge to consider the totality of the evidence and assumes the evidence relied upon by the accused to be true or not to be true. This is most applicable if the trial is by judge alone.

 The evidentiary foundation can be found or inferred from the testimony of any witness, the factual circumstances of the case or from any other evidentiary source. However, unless the trial is conducted by judge alone in which he or she determines what facts are to be believed and not believed, it is the jury that makes those final decisions.  A properly instructed jury acting reasonably could acquit if it believes that the evidence they heard or seen appears to be true.

In this case, the voir dire to determine whether the accused had met the threshold test was approached primarily on the basis of the law with respect to third-party suspects and whether the evidence to be adduced by the defence could be similar fact evidence.  

An accused charged with a crime is entitled by way of defence to adduce evidence that a third party and not the accused, committed the crime.  The evidence must meet the test of relevancy and must have sufficient probative value to justify its reception.  In order to be relevant and probative, the evidence must connect the third person with the crime.  If there is an insufficient connection between the third person and the crime, the evidence will lack the requisite air of reality 

The evidence may be direct or circumstantial. Inferences based on the evidence may be drawn, but speculation is not permitted.  The evidentiary burden on the accused is discharged if the defence shows that there is some evidence upon which a reasonable, properly instructed jury could acquit based on the proposed defence.

 A review of the judge’s reasons, in this case, indicated that he was aware of many of the relevant legal issues.  He remained, however, unconvinced on a balance of probabilities that the incident pertaining to P.W. had even occurred.  As a result, he found that there could be no useable similarities between the two events and that this evidence was insufficiently relevant and insufficiently probative.  In reality, he found that the theory of the defence lacked the required air of reality.

The Appeal judge didn’t agree with the trial judge when he said; “With respect, I have difficulty in reconciling the judge’s decision to deny the tendering of the evidence on the basis that the incident never occurred in the face of very strong evidence to the contrary.  It appears that he applied the balance-of-probabilities standard when all that was required was the “some evidence” standard.  In arriving at his decision, it is clear to me that the judge made factual and credibility findings, conclusions which he was not entitled to make at this point.  He appears to rely almost exclusively on the viva voce evidence of P.W. to the exclusion of all of the other evidence before him, including P.W.’s two prior statements, that would, in my mind, justify, at minimum, an issue for the jury to decide as to whether she was in fact abducted and left tied in a boxcar in 1985.” unquote  

I want to bring to you attention an important fact about witnesses recalling events of the past.

Eyewitness memory is a person's episodic memory for a crime or other dramatic event that he or she has witnessed. Eyewitness testimony is often relied upon in the judicial system. It can also refer to an individual's memory for a face, where they are required to remember the face of their perpetrator. However, the accuracy of eyewitness memories is sometimes questioned because there are many factors that can act during encoding and retrieval of the witnessed event which may adversely affect the creation and maintenance of the memory for the event. Experts have found evidence to suggest that eyewitness memory is fallible.  It has long been speculated that mistaken eyewitness identification plays a major role in the wrongful conviction of innocent individuals. A growing body of research now supports this speculation, indicating that mistaken eyewitness identification is responsible for more convictions of the innocent than all other factors combined.

 The Innocence Project determined that 75% of the 239 DNA exoneration cases had occurred due to inaccurate eyewitness testimony.

It is important that judges are aware of the flawed nature of eyewitness memory and the difficulties relating to its use in the criminal justice system so that eyewitness accounts are not viewed as the absolute truth or alternatively, the witness may have forgotten certain aspect of what he or she said to the police earlier. I believe that P.W probably forgot some of what she told the police. This would have occurred in the courtroom because of P.W simply forgetting what she wrote in her statement to the police or she was rattled in in the court setting or both. She should have been given a copy of her statement so she could refresh her memory of what she wrote in her statement. That way, she could then recall the event she was subjected to more clearly.

Many years ago, I was assaulted in my office by a stranger. I filed a charge against him after I learned who he was. Months later, I was asked if the man in the courtroom was the man who assaulted me. I couldn’t remember his face so the case was dismissed. The next time I was to be a witness, I watched the person get into his car. I noted the licence number of the car. Months later when the trial was scheduled, I waited in the parking lot and sure enough, his car appeared. When he got out of his car, I immediately recognized his face.   

One time I was the only witness to a hit and run. The driver who was a woman was easy to identify because she was enormously fat. I noticed her licence plate and reported it to the police. Six months later, the woman appeared in court. I recognized her immediately. Then suddenly, her twin sister who was also fat appeared in the courtroom. I had picked the right one for two reasons. I presumed that the real culprit would have entered the courtroom first to see if her lawyer was in the courtroom. Further, when I smiled at her, she winced. That means that she recognized me when our eyes first met when she smashed into the other car.  She was convicted, and her licence was suspended for a year.  

And now to Grant’s appeal. The appeal judge said;

“It seems to me that this evidence, which I view as very relevant, could provide the basis upon which a reasonable, properly instructed jury could acquit, especially given the nature of the evidence called at the trial.  It pointed to the possibility that the same person who killed Candace Derksen abducted P.W, if the jury so found that to have occurred.  In that event, the accused could not have murdered Candace Derksen given he was in custody at the time of the P.W. incident.  This evidence is also relevant in the context of assessing the expert’s evidence, particularly Dr. Waye’s evidence excluding the accused.

The other two appeal judges concurred with the decision written by their fellow judge. The court ordered a new trial with a different judge for Grant. At that second trial, he was acquitted.

He is eligible for a substantial award from the government for the ten years he was wrongfully incarcerated. If you look at the sidebar of my articles, you will see how I made it possible for innocent persons who are wrongly incarcerated to be given financial awards. One man who spent 24 years in prison for a murder he didn’t commit was awarded ten million dollars tax free.

No one has thus far been charged with P.W’s abduction or Candace Derksen’s murder. There has also been no further similar events committed. 

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