“Do you ever wonder why things have to turn out the way they do?” Nicholas Sparks
In an article written by James Turner, published in the Winnipeg Free Press, November 26, 2013, he wrote, “Monday, the Manitoba Prosecutions Service confirmed they've elected the latter choice and will seek leave to appeal from the Supreme Court of Canada in hopes of overturning a recent bombshell decision from Manitoba's Appeal Court that quashed Grant's conviction. The leave application is the first step in what could be a long legal process that may not result in Grant or Derksen's family achieving resolution for years. The Crown must demonstrate to the high court the case has ‘national importance’ before it can get a full hearing.”
We were so new to this appeal process.
It is strange to be told there is not going to be any resolution and there will be no resolution – after such a long time. One would think we would be used to living with it – and no longer hope for resolution.
The next Sunday, after hearing the Appeal Court decision, I met a man who was very interested in the details of the trial, and an explanation of the appeal hearing decision. He kept asking. I kept trying to answer but every answer just led into another question that was even less satisfactory.
Finally, he gave me an out…an acceptable, pat answer – “It was a technicality.”
He left it at that, but that didn’t feel complete either. It wasn’t a technicality.
It was a whole different story that had butted up against the original story. It was a clash of stories.
This happened again and again as we met different friends. Sometimes, after settling on an easy answer, a person would pause and then, looking deep into my eyes, would ask the question, “Did he do it?”
I would nod, “Yes.”
But even that would lead to the next question – and the next – and the next.
Finally we discovered that it was just too complicated to talk about. We couldn’t seem to share a decent conversation with anyone about our case because it would take an insurmountable pile of words to even begin to have a conversation about it.
It was even too complicated for a book. All desire to write was gone.
I had stopped blogging.
I had stopped writing.
I had stopped.
I was stuck.
There is a real sense of powerlessness to be up against an institution or organization – made up of many people, highly professional, with a highly developed culture of language, code of ethics. Institutions can be formidable foes – perhaps even more formidable than an individual.
For example, in the article written by Chinta Puxley for the Winnipeg Free Press, March 21, 2014, Simmonds was able to say with clear conviction that he would continue to “vigorously” defend Grant who “maintains his innocence.”
I would expect him to say this. But then he goes on. “In the light of the new DNA evidence in the hands of the Crown which we feel exonerates him, in conjunction with the evidence that is the subject of the appeal, the continuation of this prosecution is disturbing.”
The article then says that the Crown declined to comment since the case is an “ongoing matter.”
The next quote is from Court of Appeal Justice Monnin. “The exclusion of the evidence denied the accused the opportunity of placing before the jury the full answer he wanted to make.”
Earlier on in the article, Cliff and I are quoted, saying that we are optimistic that the process will lead to truth – or something like that.
The months following seemed particularly difficult.
It wasn’t helpful that our weather had become particularly extreme. Our usually cold winter was the coldest it has been in more than 100 years.
It seemed every time I made plans to travel out into the country, there was a severe blizzard, a white out, which meant white-knuckle driving on black ice or navigating through the hypnotic flow of snow over the highway – making travel stressful. Even in the city it was a fight to stay on the road. The bitterly cold temperatures, together with unpredictable weather patterns, led to the most poorly plowed roads ever throughout most of the winter and ended with an epidemic of frozen pipes.
This period very quickly left us voiceless, powerless and completely exhausted.
How does one gain control of one’s life again? How does one find a voice when there are no words? How were we going to cope this time? I wondered.
I rediscovered white – quite by accident.
After the trial I was introduced to Pinterest by my daughter Odia, and as a new program, it became almost an addiction for me. I found comfort in choosing pictures. For me it became a luxurious, bottomless picture book of eye candy that I could devour. I just started pinning my boards with things that appealed to me, candles, gardens, sheep, angels, paintings.
And then I started a “white board.” I would indiscriminately collect all kinds of beautiful pictures of every color and then, at the end of the day, I would invariably edit out the color and preserve only the white photographs.
My love for white must have begun in the early ‘90s when I attended a conference in the Maritimes. I was billeted in an old house, a typical Maritime house that was decorated with ageless antique furniture but the walls had been painted in whites – a lovely cream and pure snow white.
Around that time we moved into a house on Hazel Dell badly in need of renovations. I searched at great length for those same shades of white and started to apply them to my own home.
But eventually, collecting white pictures and pinning them to imaginary boards wasn’t quite as satisfying as the beauty of turning a house into white. I longed to go back to painting houses and immersing myself in white, except I didn’t have the time, energy or inclination to do houses again. I wanted something small, accessible, quick, and practical. I wondered if I dared to paint on canvases. Besides, I had some walls downstairs that remained pictureless because I couldn’t find paintings that I truly liked.
Dare I paint? When the idea first entered into my imagination, I discarded it immediately. I am surrounded by talented artists. They had beautiful art.
One day though, as we were shopping for some odd things at the Dollar Store, I noticed tiny paintings for $2.00. I didn’t like the paintings, but they were canvases. Perhaps I could experiment? There was nothing wrong with trying. I bought four, totalling $8.00, and three cans of paint – sensitive white, snow white and a kind of taupe.
I was literally trembling when I painted my first tiny work, feeling as if I was trespassing onto the territory of the skilled, talented, and amazing artists in my family who were not only producing good art but had the opportunity to show it in galleries.
When I had completed my first, nothing prepared me for the satisfaction and joy of covering a tiny, little canvas entirely with white paint embedded with meaningful words. Then I hung my quartet of first paintings on the wall. I still look at them with a deep-seated pleasure and happiness. They give me something indescribable. Why white?
White is powerful and dominant, yet it blends with other colors. It contains an equal balance of all the colors of the spectrum, having the strength to hold diversity and tensions within itself, implying fairness and justice. It remains inclusive and adaptive. One could say it remains egoless in a state of selfless awareness.
It is a color that promises new beginnings. It offers an inner cleansing and purifying of thought, emotion spirit and ultimately one’s soul, refreshing as if strengthening one’s entire being.
We had expected to wait another year before hearing anything from the justice system… so I was really surprised when I opened my email first thing on a Monday, three months later, March 17, 2014 and found a note from Monica. “Hi Wilma: Hope all is well with you and Cliff. I have been away the last two weeks, but returned to an email from Ami Kotler’s support staff this morning that it is expected the Supreme Court will be ruling on the Crown’s leave application on March 20th. He asked that you be advised. I don’t think this is public information….”
I quickly sent a confidential note to our adult children, then held my breath. I am always surprised how important this is to us – and how hard it is to wait. We really tried to ignore it, but it was there in our minds.
At this time we were right in the middle of planning our very first family art show at the Frame Arts Warehouse Gallery.
We met with Nicholas Tenszen, booking manager, on February 20, 2014, who told us that he had an opening for April 12th to April 27th. We were in the middle of planning this event when Monica’s warning came. There was going to be an announcement regarding the Supreme Court hearing.
Early, very early – much too early – I got up on Thursday morning and checked my Twitter account and read the Winnipeg Free Press reporter, James Turner’s tweet – that the prosecutor’s application to the Supreme Court of Canada had been accepted.
We were going to Ottawa!
After hearing that the application had been accepted, I began to call around to find out who still wanted to come to Ottawa.
It wasn’t the best of times.
Heidi, Candace’s best friend, told me that she was very ill, and later was diagnosed with cancer.
The father of our daughter-in-law, Natasha, was in the hospital gravely ill so she had to travel to Sudbury to be with him and her family, taking Anna their daughter, which meant we had Simeon, a two-year-old, with us.
Even though many of us were ill with colds, flus and such, we still all arrived on time the evening before.
My sister, Lu, from BC, her daughter, Theresa, Richard, a family friend from the East, Sue and Howie from Winnipeg, Donna, a niece who lived near Ottawa, our daughter and son, Odia and Larry Reimer, Syras with Simeon came with us.
We stayed at a hotel close the Supreme Court so we could walk over. I had arranged for babysitters to take care of Simeon who was only two years old. But at the very last minute he refused to go with the babysitters, so we took everyone with us – including the babysitters.
It was a time of high stress – and it wasn’t only the dread of going into a courtroom again – I had put myself into a real predicament. Knowing that our case our “family would not achieving resolution for years”, I decided that one way to fight the suspense would be to become focused on something else. I chose to enroll in a Master's level Executive Coaching course at Royal Roads University in Victoria. It's a full year intense course.
I had deadlines. My assignment was to read, an essay, Brain-Based Approach to Coaching, by David Rock. It was perfect.
His premise is that "getting people to change is becoming increasingly important in our rapidly changing work environment."
But concludes that "change is much harder than we think." Apparently even the smallest changes take concentrated effort. He makes a very convincing argument.
I was reading and working on my assignments late at night in the hotel washroom so not to wake up Cliff.
The moment came.
What a moment!
We weren’t sure if we were tourists or victims as we walked into that grand building.
All of us were duly impressed with the grand, historical building, overlooking the Ottawa River and the candelabrum-style fluted metal lamps flanking the entrance.
When we asked our little grandson, Simeon, what he thought of the huge entrance room with its marble walls and marble floors, he looked around, his blue eyes taking it all in, then said, “It has no food in it.”
The courtroom itself was just as beautiful and regal, with the seven Judges: Rosalie Silberman Abella, Marshall Rothstein, Thomas Albert Cromwell, Michael J. Moldaver, Andromache Karakatsanis, Richard Wagner, and Clément Gascon, sitting behind the bench with Amiram Kotler and Rekha Malviya for the Appellant, and Saul Simmonds, Vanessa Hebert, and Laura Robinson for the Respondent taking the podium for their allotted times.
We were no longer settled when the process began.
We liked the idea that the debate had been contained, each side given 20 minutes – and only 20 minutes -- for each discussion. Not back and forth.
We noticed how Ami and Rekha seemed so comfortable, Ami calling the Judges by name, remaining unrattled when he was asked pointed questions.
Actually, I don’t remember much of the discussion.
Defence lawyers told the Supreme Court of Canada that there was new evidence that the DNA used to convict Grant was improperly tested, that a juror in the case was clearly biased against their client and that evidence of a similar case, the boxcar incident, should have been admitted during Grant’s trial.
Simmonds said that even though the DNA evidence – tested at a private lab in Thunder Bay in 2007 – was contested during the trial, he now had a new expert who believed 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 said that he had a DNA expert who said this 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.
Crown disputed both arguments. He said the DNA evidence wasn’t improperly tested and that the explanation for the different results was 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.
Both referred to the jurors’ bias, but 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.
The majority of the hearing was about 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. They were referring to the boxcar incident.
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 and wrappers in one scene were found in the victim’s pocket and at the other on the ground. The rope bindings were also completely different, even if there was some similarity in the type of knot used, the one victim was hogtied, said Kotler.
Simmonds told the court common sense dictates there are clear ties between the two cases.
The court reserved its decision.
An article written by Juan De Villa entitled, Similar Fact Evidence and Unknown Third Part Suspects: Her Majesty the Queen v. Mark Edward Grant that appeared on line November 1st, 2014, published as an inhouse analysis of the case…., ended with this statement.
“Different concerns can arise depending on whether evidence is sought to be adduced by the Crown or by the defence. …Considering the necessary procedural protections granted to accused persons, it is unlikely that the Crown’s appeal will be successful. In any event, the Supreme Court of Canada’s eventual decision in Grant will clarify what test to apply when an accused’s defence is that an unknown third party committed the offence, and whether an accused’s onus is the same as the Crown’s when seeking to adduce similar fact evidence.”
It was never going to be about the truth of guilt or innocence, but of setting precedence. The question at stake was: Had the Judge used the right rationale protecting the accused first in his decision?
Apparently not – he should have used a different argument entirely – addressing a situation that had never presented itself before in our courts.
This wasn’t even about the case – it was about the judge.
I had been warned that this was all going to be esoteric.
For me the most shocking moment was when one of the judges asked Simmonds if there had been any indication of sexual assault in either the Box Car case or Candace’s case.
Simmonds had said, “No.”
How could he say that so convincingly?
Would the judges believe him?
We were in and out of the Supreme Court so quickly – two hours and it was over. It all seemed unreal. Half the time I had been too concerned about Simeon to concentrate. He on the other hand turned out to be the perfect little gentleman.
At the end of it – we all walked out to the front of the building.
One of the attractions of the Supreme Court building are the pair of bronze statues, each three-meters high – the iconic statues of Truth and Justice.
They loom over the stairs leading up to the court’s entrance. I was especially interested in the statue of Truth! I had been in pursuit of truth for the last seven years. Lady Truth has very beautiful, delicate facial features and is dressed in a long, flowing gown.
Before we left, I took out a dried rose from my purse – the same rose that had lain beside me during the closing arguments of the first trial, comforted us as we had awaited the verdict, and then was cruelly frozen on our way home after it was over. I laid that dried rose at the feet of the goddess of Truth, making my little statement, “Love first, truth and justice a very close second.” Love is our true destiny.
We do not find the meaning of life by ourselves alone—we find it with another. —Thomas Merton.
Then we went to debrief at a unique Ethiopian restaurant, Horn of Africa, which had a picture of Nelson Mandela on the wall.
Over lunch, we took the time to go around the table and ask everyone to predict the outcome of the hearing – and their reasoning. There were fourteen of us; ten thought the judges would uphold the guilty verdict, four thought that the judges would rule in favor of the Manitoba Court of Appeal ruling and order a retrial. It turned out that the four were right.
After that, we still had time to enjoy the city of Ottawa, walking through the market, watching a documentary about the Camino Trail, visiting the National Gallery of Canada, and spending time with our niece and her family. Sunday evening, we left Ottawa knowing that it could take up to six months for the Supreme Court of Canada to write their decision.
There was one memorable moment.
After enjoying the market for a bit, we went back to the hotel so our grandson could take an early afternoon nap. We were going to catch up with the group in the theatre to watch the Camino Trail together.
Just as we were about to leave – we looked of the hotel door – and the mood of the entire city had changed. What had started off a beautiful, sunny winter day – had suddenly turned into a white out storm a scene from Siberia. – a storm.
So reminiscent of all the other storms – strange ones that come and go mysteriously every time Candace’s death and murder was an issue.
Sunday evening, we left Ottawa knowing that it could take up to six months for the Supreme Court of Canada to write their decision.
It was an email from Richard Cloutier, producer at CJOB, one of Winnipeg’s most popular radio stations, Monday mid-morning, that alerted us that the justice system was again on the move. “I gather you know that the Supreme Court of Canada is announcing their decisions this Thursday.”
All I could think of – I have to wait another two days.
I answered the email. “Thanks, Richard. I don’t have anything to say. I don’t know what the decision will be. How do you know these things so quickly?”
He sent me the link. I checked. OTTAWA – The Supreme Court of Canada announced today that judgments in the following appeals will be delivered at 9:45 a.m. EST on Thursday, March 5 and Friday, March 6, 2015. This list is subject to change.
I wrote him back immediately. “Thanks Richard. You can call me on Thursday - after I know. Up till then - nothing has changed for us.”
I paused, then added. “Do you still remember the night of the verdict when you hopped into our car to talk? It was full moon that night - crazy isn’t it - how the story continues?”
He wrote back, “I remember it too well. I remember all our conversations. Sometimes I wish I could forget…. What’s the best way to reach you on Thursday? R”
“I will be at home....”
I pushed the send button.
The wait was over - the decision was coming down.
The Court of Appeal had reversed their decision, October 30, 2013, application made and accepted by the Supreme Court of Canada, March 20, 2014. The case heard in Ottawa, November 14, 2014 and the final decision was to come down March 5, 2015.
In anticipation of this decision, I arranged a three-way conference call so we could prepare ourselves and our two adult children about the decision coming down.
It was hard to believe that, at the time of the trial, both our adult children were married but did not have children.
Now Syras and Natasha had two; Larry and Odia were pregnant with their first – truly a miracle pregnancy but delicate. Odia was on bed rest till June. Both couples were preoccupied with their lives, and not as engaged with the issues as they once were.
So we went through it all very quickly. First of all, we clarified for ourselves the three possibilities. The first possibility was that the Supreme Court of Canada would uphold the original verdict of guilty. I assumed this would be the preferable decision. The second possibility was that Supreme Court of Canada would rule in favor of the Manitoba Court of Appeal decision to order a new trial. The third possibility was that the case would be dropped and Grant would go free. What surprised me was how my preference for the first possibility -- that the Supreme Court of Canada would uphold the trial verdict -- was not necessarily my children’s foremost choice.
They were quite ambivalent about it all actually. This is when I realized that their entire adult life - the last 30 years - they had been living with this question, “Who killed their sister, Candace?”
In their minds and lives this had almost become part of their identity. We admitted that as a family, we had actually become accustomed to it. And that it had not necessarily been all negative; it had also held opportunities, privileges and learnings.
At the end of the phone call we did conclude that, even though we naturally resist change, we would want to step into this new reality, whatever it is. Just talking about it helped us let go of the comfort of the old. Having had this conversation relieved me immensely.
We awoke Thursday – wondering. It was March 5, 2015. The day!
The first call came from Meaghan Ketcheson, reporter from CBC radio Winnipeg. She said she knew the Supreme Court of Canada decision. I asked her what it was. She said that they had ruled in favor of the Appeal.
I couldn’t believe it. They had what? Their decision, she told me again, was that the judges, all of them, “had upheld the Manitoba Appeal Judges’ decision to order a new trial.”
Crown lawyer, Mike Himmelman, was the next to call, and that seemed to release the flood of calls from everyone else, friends and reporters alike. Monica from Victim Services called. Everyone seemed shocked.
When the media began to call, I knew I needed to organize it all. I used my Twitter account to open up an invitation for them to come at 10:30 that morning. I had learned this from the other time a decision had come down unexpectedly.
They started to come at ten. When our living room was filled with reporters, the cameras focused on Cliff and me. I was honest with them all. I was flummoxed, giddy -- and baffled. I’m not quite sure what all we said in front of those cameras.
We tried to be authentic. But we were surprised, shocked at the decision.
By the end of the day, we were suddenly aware that this time the discussion, the reporting, was not only confined to Winnipeg – we were getting calls from across the country. Thank goodness in the evening we had tickets for the theater, and went to watch Vanya and Sonia and Masha and Spike, a domestic comedy.
We found ourselves in a new place in the theater - fourth row, right in the middle. It was all very close and immediate. At one point, Sonia and Masha burst into a chorus of tears, sobbing in unison as they together realize the futility of their lives - the absurdity of it all. As they cried, Cliff and I related to it all.
The next day reality set in, as I began to see the news reports in the Winnipeg Free Press. The headlines ran, “New Trial for convicted killer.” The articles explained that “… the Supreme Court of Canada ordered a new trial for the man convicted of killing her. The high court issued its decision in the appeal in the case of Mark Edward Grant who was convicted of second-degree murder in 2011 for the 1984 slaying of 13-year-old Candace Derksen. The provincial Crown will now have to decide whether or not to try Grant a second time.”
I printed out the Judgement. It was clear, “The trial judge erred in law in treating the evidence relating to the alleged abduction…” and then later on…. “The trial judge’s errors were clearly not minor….” As in all judgements, it cited precedents that meant very little to me, until I reach the paragraph numbered 57, where it goes into details of similarity.
The sentence that grabs me again is, “In neither case was there evidence of physical or sexual assault.” They had believed the Defence. They had taken him at face value! At the end, it again said, “The judge’s legal errors were clearly not minor…. This case must be re-tried in any event.”
Slowly I began to realize the implications – there was no resolution in sight. I had been hoping that the Supreme Court of Canada decision would be to uphold the verdict of guilty – not necessarily that Grant be held in jail, but I yearned for a simple answer to the public question, “Did he do it?”
I just wanted a simple resolution – defining resolution as that act of solving a problem.
Reading the Supreme Court of Canada judgement, I realized there might never be resolution and I had to grieve that loss of hope.
We are different people than we were at the first press conference after Candace’s body had been found and we had chosen the word “forgiveness” and knew absolutely nothing. We knew more at that second press conference at the police station where we learned that they had charged Mark Edward Grant with first degree murder.
We knew a lot more at that the next media encounter outside the Law Courts building holding the white rose after Grant had been found guilty. I knew even more when the Manitoba Court of Appeal announced their shocking decision to overturn the verdict.
Now sitting in our living room contemplating the Supreme Court Judgement – it felt somewhat familiar – but oh so different.
When will we ever master this?
Another blog – another random thought.
Perhaps it was my destiny. We call what inevitably happens in the future our destiny. We feel we are helpless in the face of destiny. We talk about it often. We say: “whatever my fortune may be”; “he deserved a better fate”; “she has a happy lot”; “there is the luck of the Irish”; and “a victim of circumstances.”
I know how I came to be a writer and mother. I know why we chose to live in Winnipeg. When I look around my house, I know why I have acquired most of my possessions. I remember where I bought them and why. I know the reason for the extra pounds I carry – I’ve eaten that extra piece of chocolate. I know why I have planned to do what I am doing tomorrow.
But there are some subplots in my life which I seem to have had little choice over and which I don’t understand. One of these subplots in my life has been the murder of my daughter. It feels like destiny. I had no hand in her death, no hand in the investigation, no hand in the preliminary and will have no say in the trial.
When tragedy strikes and fate intervenes, we can awake wide-eyed to the full implication and definition of having a destiny. We suddenly understand what it means to feel as if we are living out a part of our lives that we have no control over.
We can wail in agony, we can curse our stars, we can tremble with rage, or we can resign in helplessness, wilt and fade away. It feels as if life is a gamble, a bundle of chances, a drama unfolding without a shred of certainty. Destiny seems a monster with no respect for good and bad.
It seems so unfair that I can plan what I want to do this next week, go out for coffee, write a chapter, answer my email, and enjoy Facebook. But when it comes to the main question in my life – I have no control.
What will I do with the aftermath of the murder of my own daughter? I am helpless. I cannot determine the course of the process. It isn’t in my hands.
It is in the hands of other.
We never know what destiny shapes each life. The script of individual destiny is secret; it is hidden behind and beneath the sequence of happenings that is continually unfolding for us. Each life is a mystery that is never finally available to the mind’s light or questions. That we are here is a huge affirmation; somehow life needed us and wanted us to be. To sense and trust this primeval acceptance can open a vast spring of trust within the heart. It can free us into a natural courage that casts out fear and opens up our lives to become voyages of discovery, creativity, and compassion. No threshold need be a threat, but rather an invitation and a promise. Whatever comes, the great sacrament of life will remain faithful to us, blessing us always with visible signs of invisible grace. We merely need to trust. -- John O’Donohue
By the way to protect the vulnerable in this story - I am changing their names.
Thank you for reading this first draft. I do apologize for the formatting.
Please write me at firstname.lastname@example.org for any comments - corrections, insights or alerts.