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. 

Reduced prison time for police Charter violations

Supreme Court allows reduced jail time for violations 

Top court bucks tough-on-crime trend 

Hurt criminals can serve less time 

- Criminals can receive sentence discounts for compensation if police violate their Charter rights by abusing their force as long as Judges dont undercut mandatory minimum sentences, ruled the Supreme Court on Friday.

- Judges must stay within legislated limits of mandatory minimums. 

- A sentence reduction can be a remedy for police misconduct

- Judge could reject/ignore mandatory minimum only where the police beating was extremely severe

- There are 43 mandatory minimum sentences in the Criminal Code for murder, impaired driving and firearm related offences. 

- They are controversial because they eliminate judicial discretion and overcrowd prisons without deterring crime. 

- Supreme Court in favour of reducing prison terms for defendants who were abused by police.

-  Besides police brutality, sentences could also be reduced by unreasonable trial delays and unwarranted searches. 

- Decision came from a man whose ribs were broken by police after he led them on a high speed chase.

- The Supreme Court upheld the Alberta Court of Appeal decision that imposed the mandatory minimum sentence for drunk driver Lyle Nasogaluak.

- Ruled that Judges should not go below the mandatory minimum unless the case is extraordinary. 

- Lyle was intoxicated and driving when police tried to pull him over. 

- Instead of complying, he sped away and led them on a high speed chase where he finally stopped his car.

- He refused to get out of his vehicle and one of the officers punched him in the head twice before wrestling him to get out of the car.

- The man continued to resist and the officer punched him again in the head.

- When he refused to be handcuffed, another officer punched him in the back, breaking some of his ribs. 

- He was crying in pain when he was in custody and  officers did not attempt to get him medical help. 

- When he was released, he went to the hospital and discovered he had a collapsed lung caused by the broken ribs. 

- He plead guilty to impaired driving and fleeing the police and he was given a conditional discharge on both counts because police violated his charter rights to security of person and abused their force, using more than was necessary in the situation.

- Alberta Court of Appeal said the Judge could not ignore the mandatory minimum sentence for impaired driving and instead, imposed a $600 fine. 

I completely agree with this ruling by the Supreme Court. Police should not be allowed to abuse their force and violate others' charter rights. Maybe this ruling will make police more cautious and aware of the degree of force that they are applying and will hopefully, attempt not to use extreme force, because then a guilty person may be acquitted or given a much lighter sentence than they would like.

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