Social workers' identities to be made public in Sinclair inquiry

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Phoenix Sinclair died in 2005 in Fisher River. (WINNIPEG FREE PRESS ARCHIVES) Photo Store

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Read the full decision (PDF, 2MB)

An application for a publication ban on the identities of social workers involved in the care of slain child Phoenix Sinclair has been denied.

In a ruling delivered in written form Thursday morning, Judge Ted Hughes -- who is overseeing the inquiry -- said there will be no ban on audio or video of social workers testimony.

"A public inquiry is meant to educate and inform the public and it follows that permitting broadcasting of the inquiry proceedings would serve to fulfill that aspect of the inquiry's mandate," said the decision," wrote Hughes.

"Were I to restrict audio and video recording and broadcasting of the social workers' testimony in this inquiry, the result would be an inequality among members of the public in access to information about the proceedings."

The 57-page decision (PDF, 2MB) comes after days of arguments presented both for and against the ban.

Kim Edwards, Phoenix's former foster mother, who was against a ban, was emotional after the ruling, hugging people with her.

The application for a publication ban had been sought by the union representing social workers, the Manitoba Government and General Employees Union (MGEU).

However, that move was opposed by different parties, including media outlets such as the Free Press.

The ruling does not mean everyone participating in the hearing will be identified. In his ruling, Hughes said there are seven informants -- who are also known as sources of referral (SOR) -- involved in the case whose identities will not become public.

"The Media Group is not taking issue with a publication ban on the identities of SORs, but does reserve its right to bring an application for publication of identity if the evidence reveals that a particular witness played a material role apart from being an SOR," said Hughes, in his written decision.

In the decision, Hughes said "there has been no direct evidence from any of the applicants that would make the necessary link between identifying social workers in the media and increased risks to their personal safety."

"The case law indicates that there would need to be much stronger and more direct evidence of risks to personal safety than what has been filed in order to justify a publication ban on that basis," said Hughes, in his written decision.

"There is evidence filed by the applicants which speaks generally to social workers being concerned about their safety, but there is no evidence of specific incidents or statistics pointing to an increased risk to safety as a result of publicity. The nature of the evidence that has been offered is that some families have referenced the Phoenix Sinclair tragedy to some social workers in the course of their dealings with those families. No direct evidence was offered by any individual social worker being called to testify in this inquiry as to his or her personal circumstances."

Jeffrey Gindin, the lawyer representing the lawyer for Phoenix's former foster mother, Kim Edwards, and biological father, Steve Sinclair, said his clients were "tickled" by the result.

"I’m thrilled," said Gindin. He said there’d already been discussion of an appeal if the decision upheld the proposed ban.

Numerous delays have stalled the inquiry so far.

Sherri Walsh, commission counsel, said SORs – or informants who "make a referral to the Child welfare agency" that a child needs help – are covered by legislation that grants them anonymity so that "people are not afraid to phone in a concern about a child in need of protection for fear of recrimination." Walsh said hearings involving them will likely be in camera, and the witness may be off site with their testimony transmitted through video-conferencing.

Inquiry Commissioner Ted Hughes will likely be able to see the witness, she said, and everyone else in the room will likely be able to hear the person speak but not see them. Their names will not be publishable, she said, and no audio or video can be broadcast.

"It will be closed to the public, but likely open to the media to be able to make a report," said Walsh.

The application for a publication ban was made by the Manitoba Government and General Employees Union (MGEU), the General Child and Family Services Authority, First Nations of Northern Manitoba Child and Family Services Authority, First Nations of Southern Manitoba Child and Family Services Authority and Child and Family All Nation Coordinated Response Network (ANCR), as well as Intertribal Child and Family Services (ICFS).

Garth Smorang, the lawyer representing the MGEU, said there will be no appeal of Thursday’s decision.

"The decision was 57 pages long. He clearly went through the process that was required of him in terms of the analysis that the Supreme Court says you have to do, and he came to his own conclusions on the evidence," he said. "My client disagrees with his conclusion but at the end of the day, he’s entitled to his conclusion.

"Just because you disagree doesn’t necessarily mean you have grounds for an appeal."

Smorang said safety concerns for social workers persist.

"The concerns we raised remain," he said. "We talked about personal risk, we talked about privacy risks, and we talked about risks to the system in which the vast majority of these people still work. Those are all the concerns we’ve had and continue to have."

Hafeez Khan, the lawyer for Intertribal Child and Family Services, said he couldn’t say if appeal would be filed.

Jonathan Kroft, the lawyer representing outlets such as the Free Press, said he was pleased with the decision, which he said was "consistent with what the law is in Canada."

"We’re glad that the law was followed," said Kroft, who said the decision was "appropriate and well-thought out decision after good arguments by all counsel in all sides." He said he didn’t know if there would be an appeal, but said a "long tradition" exists in courts and public inquiries reinforcing openness.

"We are pleased that Commissioner Hughes has not agreed with the MGEU and others' request for this process to be closed," said Assembly of Manitoba Chiefs’ (AMC) Grand Chief Derek Nepinak. "He has been consistent with the Government of Manitoba’s reason to call a public inquiry into the death of Phoenix Sinclair – as all Manitobans have a right to know what happens in a transparent and accountable manner."