Social workers union asking Manitoba court to dismiss inquiry into child's death

WINNIPEG - The union representing Manitoba social workers is asking the province's highest court to scuttle a long-awaited inquiry into the death of a five-year-old girl who had spent time in foster care.

The request comes just months before a commission is to start hearing testimony — more than six years after Phoenix Sinclair died.

Garth Smorang, a lawyer for the Manitoba Government and Employees' Union, says the inquiry is overstepping its bounds. He said that after going through 38,000 pages of evidence handed over by commission counsel in December, union lawyers concluded Commissioner Ted Hughes doesn't have jurisdiction under law to look into the circumstances surrounding Phoenix's death.

The union's motion is to be heard before the Manitoba Court of Appeal on Thursday.

"The scope (of the inquiry) is too broad given the legislation," Smorang said Monday. "It's a question of jurisdiction. Does the government have the power to ask the commissioner to look into these things? If it doesn't, the inquiry could be shut down at any time."

Phoenix was five when she was killed by her mother, Samantha Kematch, and stepfather, Karl McKay, after years of abuse. Both were convicted of first-degree murder in 2008 and have exhausted their appeals.

The pair neglected, confined and repeatedly beat the little girl. Court was told she was shot with a BB gun and forced to eat her own vomit. She died from her extensive injuries on a cold basement floor on the Fisher River reserve in 2005. Her body was concealed in a dump.

The girl was taken by Child and Family Services at least twice during her short life — once at birth and again three years later — but was returned to her mother. Her death went unnoticed for nine months.

Hughes was appointed last March under the Manitoba Evidence Act, which allows inquiries into matters that are "not otherwise regulated." Smorang wouldn't go into detail about the union's legal arguments, but said Child and Family Services is regulated by a number of other pieces of legislation so an inquiry isn't appropriate.

Phoenix's death might be better investigated through an inquest or an internal inquiry, he suggested.

The union asked Hughes to consult with the Court of Appeal to decide whether he has jurisdiction, but Hughes declined.

"Over 10 months have passed since the inquiry was established. Commission counsel and staff have been hard at work ever since doing necessary preparatory work, including the interviewing of witnesses, in order to be ready for the commencement of the presentation of evidence on May 23, 2012," Hughes wrote to Smorang. "It is in the public interest that the timetable ... be maintained."

It's not the first time the union's lawyers have taken issue with the inquiry. Last year, they filed a motion requesting reporters covering the inquiry be banned from identifying any workers who might testify. The suggestion is that having their faces in the news would make it difficult for the workers to do their jobs. That application has not been heard yet.

Family Services Minister Jennifer Howard wasn't made available Monday to comment on the union's motion. Spokesman Jean-Marc Prevost said the province's lawyers will defend the inquiry's jurisdiction in court on Thursday.

"This government created the Phoenix Sinclair inquiry because we believe in accountability," he wrote in an emailed statement.

The union's attempt to derail the inquiry has outraged many including Manitoba's First Nations chiefs. They say the union's motion is a stalling tactic aimed at preventing the truth from coming out.

Grand Chief Derek Nepinak with the Assembly of Manitoba Chiefs said the move smacks of hypocrisy at a time when First Nations communities are constantly being lectured about accountability.

"One component of our society talks so much about accountability for First Nations people but won't even be accountable for their own actions in dealing with our children," he said.

"Here is a prime example of a stalling tactic that is only going to delay the important recommendations that are going to come out of this inquiry that could lead to better protection and could lead to saving children's lives. It's very disappointing."

Chief Morris Swan-Shannacappo with the Southern Chiefs Organization said First Nations want to see the inquiry go ahead so child welfare can be examined and improved. He compared the system which currently has about 10,000 children in care to residential schools.

Chiefs aren't interested in pointing fingers, he said. They are only interested in making things better for aboriginal children.

"The truth needs to prevail," he said. "We want to see the truth come out of this inquiry so that these things don't have to happen again."