Relatives of Karl Wes McKay who reported he killed and buried his stepdaughter, Phoenix Sinclair, should have to testify publicly at the inquiry into her death and not be protected by a publication ban, say lawyers for Intertribal Child and Family Services and the Assembly of Manitoba Chiefs.
The five-year-old girl was slain in summer 2005, but her death was largely unknown until McKay's sons told their mother, his ex-spouse, who reported her death in March 2006.
Assembly of Manitoba Chiefs lawyer Jay Funke and Intertribal Child and Family Services lawyer Hafeez Khan told the inquiry there's no legal justification for a publication ban protecting the identities of three of McKay's children and his former spouse. They've applied for a publication ban on their names and images, fearing harassment due to their connection to McKay.
"These matters aren't determined on sympathy, they're determined on law and the facts," Funke said. The Child and Family Services Act protects the identity of "informants" in the case of a child who may need care and is still alive, not someone who reports a child who has already died, as in this case, he said.
McKay and Phoenix's mother, Samantha Kematch, were convicted of her murder in 2008. The five-year-old was killed in June 2005 on Fisher River First Nation. Her body wasn't found until March 2006 when her half-brothers told their mom, who reported it.
The province ordered an inquiry into her death to find out how she fell through Manitoba's social safety net. It began in September and has been beset by legal delays before it even got underway. The union representing social workers involved in Phoenix's case fought to have their identities hidden with a publication ban. Now, lawyers for Intertribal Child and Family Services and the Assembly of Manitoba Chiefs are fighting a publication ban that would protect the identity of witnesses related to McKay. The inquiry, scheduled to resume March 4, was delayed another week until Monday because of this latest legal challenge.
Affidavits filed on behalf of McKay's sons said people they work with and go to school with don't know about their child-murdering father. Their mother's affidavit said her coworkers don't know about her former spouse's brutal crime, and she wants to keep it that way, the inquiry heard.
They testified nearly five years ago at McKay's criminal trial, where they weren't protected by a publication ban, but should have been, said their lawyer Bill Gange. After their trial testimony, they experienced harassment, their affidavits said.
Having to testify publicly at the inquiry is causing her sons anxiety, said McKay's former spouse. An adult daughter of McKay said in her affidavit her children don't know the identity of their homicidal grandfather.
Khan argued that no evidence was presented at the inquiry to show McKay's relatives and ex-spouse were harassed after testifying at the criminal trial.
The media has not challenged the publication ban. The requested ban would allow the witnesses to testify at the inquiry by video that spectators could hear but only commissioner Ted Hughes could see.
Hughes asked Khan several times, without success, to explain why his clients wanted the witnesses' identities made public.
Hughes is expected to rule on the publication-ban application this afternoon.