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The Canadian Press - ONLINE EDITION

Manitoba social workers union trying to scuttle inquiry into abused girl's death

By: Steve Lambert, The Canadian Press

Posted: 02/9/2012 11:16 AM | Comments: 0 (including replies) | Last Modified: 02/9/2012 1:25 PM

WINNIPEG - The Manitoba government does not have the authority to call a wide-ranging public inquiry into the death of a young girl who had spent most of her short life in foster care, a lawyer for social workers said Thursday.

"(An inquiry) is an end-run around the will of the legislature," John Harvie told the Manitoba Court of Appeal on behalf of the Manitoba Government and General Employees Union.

The union represents social workers who will come under scrutiny in an inquiry slated to start in May, more than seven years after the death of five-year-old Phoenix Sinclair.

The young girl was removed from a foster home and given back to her mother, Samantha Kematch, in 2004. She suffered near-constant abuse in the family home on the Fisher River reserve and died after a final, brutal assault.

Kematch and her boyfriend, Karl McKay, managed to keep the death a secret for seven months before Phoenix's body was found in a shallow grave near the reserve's dump. The two were later convicted of first-degree murder.

The Manitoba government called the inquiry last year, and appointed retired judge Ted Hughes as commissioner to look at how the child welfare system failed Phoenix.

Harvie said Thursday individual deaths are normally examined by provincial court inquests, as spelled out under the province's Fatality Inquiries Act.

"That is what is prescribed by law," Harvie told the court.

Harvie asked the court to call a hearing on the issue and to force the inquiry's commissioner to prove he has jurisdiction.

But government lawyer Heather Leonoff asked the court to dismiss Harvie's motion.

"It is completely frivolous and ... it runs the risk of derailing something that is important in terms of the public interest," she said.

A provincial court inquest would be more limited in scope, Leonoff said, because inquests normally focus strictly on the cause of death and not wide-ranging issues such as systemic problems in child welfare. Inquests also lack the power to subpoena witnesses.

"All that the government is guaranteed to receive in an inquest is one paragraph," she said.

"(An inquiry) allows the legislature to tailor-make the questions that it wants answered."

Justice Martin Freedman reserved his decision, and indicated it will be delivered before the end of next week.

The social workers' union is fighting the inquiry on another front as well. It has filed a motion requesting reporters be banned from identifying any workers who may testify. That application has not been heard yet.

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