Friday, July 30, 2010
One of Phoenix Sinclair's killers appealing to Supreme Court
One of Phoenix Sinclair's killers will appeal his conviction to the Supreme Court, but Karl McKay's lawyer says the case shouldn't delay a long-planned inquiry.
Along with Phoenix's mother, Samantha Kematch, McKay was convicted of first-degree murder in the child's gruesome 2005 death, a killing that highlighted failures in the province's child-welfare system.
The Manitoba Court of Appeal rejected appeals by Kematch and McKay, and earlier this week, Kematch's lawyer said she had decided not to appeal her conviction to the Supreme Court.
But lawyer Mike Cook said it has always been McKay's intention to appeal to Canada's top court. Cook said he's hoping to file the paperwork in September. The holdup is related to wrangling over funding for the appeal from Legal Aid.
Cook said he will argue that the trial judge erred by allowing a too-broad definition of forcible confinement. Under the Criminal Code, someone is deemed to have committed first-degree murder instead of second-degree murder or manslaughter if they forcibly confined the victim at the time of the slaying.
Cook said Phoenix was never physically confined at the time of her death.
An appeal could again delay a long-planned inquiry into Phoenix's death and the role the child welfare system played in failing to protect her. The inquiry was first promised four years ago by then-premier Gary Doer, but the province has said all court proceedings must be completed before the inquiry can start.
Earlier this week, when Kematch abandoned her appeal, the province said an inquiry could start as early as this fall.
Cook said there is no reason McKay's appeal should delay that process.
"I personally think (the inquiry) can proceed. We're arguing a very narrowly construed point of law and it's not dependent on the facts," Cook said. "I don't think it's a bar at all."
Kematch and McKay neglected, confined and repeatedly beat Phoenix and forced her to eat her own vomit.
The girl's stepbrothers testified she was often hit, choked, shot with a BB gun and forced to spend days and nights lying naked in the basement of the family's home on the Fisher River First Nation north of Winnipeg.
Phoenix had been in and out of care and her death highlighted failures in the province's fractured child-welfare system.
I agree with Karl McKay's lawyer, that Phoenix was not physically confined at the time of her death, therefore, McKay's conviction should be reduced to second degree murder from first degree murder.