Inquiry budget skyrockets and final report on Phoenix severely delayed

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The Canadian Press Archives Phoenix Sinclair is shown in a family photo released by the Commission of Inquiry. (CP)

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   • Conflict of interest resolved, Phoenix Sinclair inquiry may resume April 8

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Phil Hossack / Winnipeg Free Press Archives Sherri Walsh says the commission never received a response.

It's been seven years since the battered body of five-year-old Phoenix Sinclair was found buried at the Fisher River First Nation dump nearly a year after she was murdered.

It's taking nearly as long to get to the bottom of how she fell through Manitoba's child-welfare safety net, and why it took so long for her 2005 death to be discovered.

Legal battles have dogged the inquiry tasked by the province to find out what happened.

The $4.7-million budget for the inquiry is now an estimated $6.1 million. A Feb. 27 special warrant by Order in Council added another $1.4 million.

Originally, the inquiry's final report was due March 30, 2012. Now, it's not expected until December -- nearly two years late.

First, lawyers for social workers, child welfare agencies and First Nations leaders laid down roadblocks for the inquiry. They tried to prevent the identities of the workers involved in Phoenix's case from being made public. They delayed the inquiry by arguing they should receive full transcripts of witness interviews, not summaries. They fought a publication ban that would protect the identities of relatives of one of Phoenix's killer's, Karl Wesley McKay.

They lost each battle but managed to interrupt the flow of public hearings telling the sad story of Phoenix's life in and out of care, from her birth to her gruesome death.

Now, it's the commission of inquiry that has put a stop to the proceedings. It says a conflict of interest it warned lawyers about in May 2012 has come to a head and needs to be resolved.

The testimony of some of the witnesses represented by lawyers from D'Arcy & Deacon conflicts with testimony of their higher-ups, also represented by D'Arcy and Deacon.

"This might have been avoided," commission counsel Sherri Walsh said Friday. In May 2012, while conducting pre-hearing interviews, the issue of conflict of interest came to her attention. It was resolved and separate counsel for each witness was retained.

At that time, Walsh sent an email to all the lawyers representing witnesses at the inquiry. In it, she urged them to examine the witnesses they were representing in order to determine whether they had any conflicts or potential conflicts of interest so the proceedings "would not be unnecessarily delayed by the discovery of a conflict which could have been determined and addressed in advance."

The commission never got a response, Walsh said Friday.

Now, with the hearings well underway, such a conflict has become apparent to commissioner Ted Hughes.

D'Arcy & Deacon's Kris Saxberg is representing the First Nations of Northern Manitoba Child and Family Services Authority, the Southern Authority, Child and Family All Nations Co-ordinated Response Network (ANCR), 17 child-welfare workers, supervisors, managers and the General Authority, of which Jay Rodgers is the CEO.

Hughes said he's concerned about some of the witnesses getting the zealous representation to which they're entitled. The inquiry doesn't have the power to recommend criminal charges but its findings could adversely affect the reputation of people testifying at the hearings.

Hughes asked the Law Society of Manitoba for an opinion. The law society said Saxberg's representation of so many parties has given rise to conflicts and "his duty of loyalty to his clients is compromised."

Saxberg denied any conflict and said his firm represents the General Authority but not Rodgers, even though Rodgers is its CEO. Saxberg said his firm is seeking new counsel for three of the social workers involved in Phoenix's case who've already testified.

Hughes will decide Tuesday what happens next.

He said he hopes to resume the public hearing April 15.

carol.sanders@freepress.mb.ca

The $6-million inquiry

A timeline of events in the Phoenix Sinclair inquiry:

April 23, 2000: Phoenix Victoria Sinclair is born in Winnipeg and immediately taken into Child and Family Services custody.

June 11, 2005: Phoenix is murdered by her mother, Samantha Kematch, and stepfather, Karl Wesley McKay, in Fisher River First Nation. Three months earlier, her case file with Child and Family Services had been closed for the third time.

March 2006: More than nine months go by and no one seems to notice Phoenix is missing. Phoenix's stepbrothers, then 12 and 15, tell their mother what they know and she goes to police. Kematch and McKay are arrested and charged with first-degree murder.

Oct. 11, 2006: Premier Gary Doer announces a formal inquiry will be held to look at the circumstances surrounding Phoenix's death.

December 2008: Kematch and McKay are convicted of first-degree murder and sentenced to life in prison without parole for at least 25 years.

March 25, 2011: Attorney General Andrew Swan assigns former justice Ted Hughes as commissioner of the inquiry and sets a deadline of March 30, 2012, for him to deliver his final report.

June 2011: Inquiry commission announces delays because it must go to court to seek permission to see confidential child-welfare documents. The deadline of March 30, 2012, for a final report will not be met.

February 2012: The Manitoba Government and General Employees Union attempts to have a court shut down the inquiry, saying the province had no authority to call it in the first place. The request is denied in March.

June 2012: Hughes sets Sept. 5 as the start date for inquiry hearings.

July 2012: Social workers are denied an application for a publication ban on the names of those involved in the care of Phoenix Sinclair.

Sept. 2012: The public hearing begins but grinds to a halt on Day 3. Several child welfare authorities challenge the commission decision to give them only summaries of pre-hearing interviews with the 140 or so witnesses slated to testify. They ask the Manitoba Court of Appeal to grant them the full transcripts. The court rules the full witness interview transcripts did not have to be disclosed.

Nov. 14, 2012: The hearing resumes. Hughes says it is on track to be the most expensive public inquiry in Manitoba history.

Feb. 2013: A provincial Order in Council beefs up the inquiry budget from $4.7 million to $6.1 million. The Assembly of Manitoba Chiefs challenges a publication ban application by McKay's sons and ex-wife who reported Phoenix's murder. They want to hide their identities when they testify at the inquiry. The inquiry is delayed another week.

March 2013: The commissioner grants the publication ban to McKay's relatives but orders the proceedings to a halt. He wants a conflict of interest resolved with one law firm representing many witnesses whose testimony conflicts. The inquiry is put on hold until April 15.

Republished from the Winnipeg Free Press print edition March 18, 2013 A4