One of Phoenix Sinclair's killers appealing to Supreme Court

Phoenix Sinclair's killer appealing to high 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. 

Still no CFS inquiry into child's death

Still no CFS inquiry into child's death

Five years after Phoenix Sinclair died alone in a basement after repeated beatings, the province is no closer to a public inquiry into the child's death.

That's because Sinclair's mother, Samantha Kematch, appears likely to appeal her first-degree murder conviction to the Supreme Court of Canada.

Justice for Phoenix

June 2005: Phoenix Sinclair, 5, dies in a cold, dark basement where she was frequently beaten and forced to sleep on the floor naked. It's believed she died on or around June 11.
March 2006: Phoenix's body is discovered near the garbage dump on the Fisher River First Nation. Phoenix's mother and stepfather, Samantha Kematch and Karl McKay, are charged with first-degree murder even before the body is found. Phoenix's death touches off a years-long debate about the quality of the province's child welfare system.
October 2006: Then-premier Gary Doer announces a public inquiry will be held into Phoenix's death once the criminal proceedings are finished.
December 2008: Kematch and McKay are convicted of first-degree murder and sentenced to life in prison with no chance of parole for 25 years.
October 2009: Manitoba Court of Appeal hears a request by the pair to downgrade their convictions to second-degree murder or manslaughter. They claim there is no proof Phoenix was confined to the basement. Under the Criminal Code, someone is deemed to have committed first-degree murder instead of second-degree murder or manslaughter if forcible confinement is involved.
March 2010: In an unanimous decision, the appeals court upholds the first-degree murder convictions against Kematch and McKay.
May 2010: Kematch asks the Supreme Court of Canada for an extension of time to file a leave to appeal. The court agrees. A request for leave to appeal is due by July 27.

Late last month, Canada's highest court granted Kematch a 60-day extension to file an appeal, giving her until the end of July.

"Whether she appeals or not is still a matter to be resolved with Legal Aid. That is the reason for the delay as well," said Leonard Tailleur, Kematch's lawyer and a senior attorney at Legal Aid Manitoba.

Phoenix died five years ago this week and Kematch, along with her then-boyfriend Karl McKay, were convicted of neglecting, confining and repeatedly beating her. 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. There was also testimony she was forced to eat her own vomit.

Experts told court the girl suffered repeated injuries over a long period of time and had broken bones all the way from her pelvis to her skull.

Phoenix had been in and out of care and her death highlighted failures in the province's fractured child welfare system. Three months before Phoenix's death, a tip prompted a social worker to visit Phoenix's home, but the worker left without ever laying eyes on the child.

After Phoenix's body was found, then-premier Gary Doer agreed to call a public inquiry to determine how the child welfare system failed to keep track of her whereabouts or protect her.

"The public has a right to know how a child could go missing for nine months without it being noticed," said Doer in a 2006 press release.

Even though the inquiry's terms of reference and a shortlist of possible commissioners are already drafted, the province says it can't begin the inquiry until Kematch and McKay have exhausted their appeals. The province says it doesn't want to jeopardize the criminal case against the two.

But critics say it's unlikely the Supreme Court justices, cloistered in Ottawa, would be influenced by an inquiry 1,700 kilometres away, even if it produced new facts. And, the Supreme Court tends to consider only errors of law and rarely retries the facts of a case.

"My sense is the government is trying to delay an inquiry to push it beyond an election window," said Tory Leader Hugh McFadyen.

The inquiry is expected to delve into the failures of the province's child welfare system to determine how Phoenix fell through the cracks. McFadyen said the NDP won't want that laid bare in the months before the 2011 election.

Phoenix Sinclair's killers lose bid for appeal

Court rejects appeals from young girl's murderers 

A common-law couple who beat their five-year-old daughter to death after she endured months of horrific abuse saw their first-degree murder convictions upheld Thursday by the Manitoba Court of Appeal.

Phoenix Sinclair was routinely punched, slapped, beaten with metal rods, confined to a filthy basement, forced to eat her own vomit and shot with a BB gun before her death on or around June 11, 2005.

Her death was not reported until almost nine months later. Her remains were found buried near a garbage dump at the Fisher River First Nation, about 200 kilometres north of Winnipeg, in April 2006.

Samantha Kematch and Karl McKay appealed their convictions for several reasons, including a claim that the trial judge erred in allowing some evidence in the trial and in her instructions to the jury. They also said they should have received separate trials and Kematch alleged the verdict against her was unreasonable.

Most notably, the pair argued they should not have been convicted of first-degree murder because Phoenix was not unlawfully confined at the end of her short life.

A murder becomes first-degree if the death occurs while the victim is confined.

At the end of their trial, the couple told the court they should be found guilty of manslaughter.

The appeal court rejected the couple's arguments.

Justice Michel Monnin noted the unlawful confinement charge should stand, because while Phoenix may not have been physically barricaded in her bedroom or in the rat-infested basement, her parents clearly controlled her movements through fear and intimidation.

Kematch's lawyer said Thursday his client maintains McKay was responsible for the child's death.

"Mr. McKay was the cause of death," said Leonard Tailleur. "He beat her -- there was no dispute about that.

(Kematch) is an aboriginal woman who's been in a difficult position her entire life and now for this to come upon her it is disappointing, yes."

Tailleur said his client is considering an appeal to the Supreme Court of Canada.

The details of Phoenix Sinclair's short life and brutal death have led to widespread calls for a provincial government inquiry into how Manitoba's child-welfare system may have failed to protect her. Sinclair had been a ward of the province prior to her death.

A provincial government spokesman told Global News such an inquiry would not proceed until Kematch and McKay have exhausted all avenues of appeal.

During the trial, the testimony of McKay's sons provided the most harrowing picture of Phoenix's life.

It was Daniel Stevenson, McKay's 12-year-old son, who told his mother that his dad had killed someone, according to the appeal.

I think that because of the horrible nature of these many acts and ultimately death that was inflicted on Phoenix, I agree in the Court of Appeal's decision to uphold the conviction of first degree murder.