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Witness accounts sought in case

Agencies go to court to get documents

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Three child-welfare authorities are asking the Manitoba Court of Appeal for help getting copies of witness transcripts ahead of the inquiry into the 2005 death of Phoenix Sinclair.

If the motion is successful, it could further delay the inquiry, which is investigating how the death of the girl -- who was in provincial care most of her life -- went unnoticed for more than nine months.

A notice of motion was filed in the court Thursday, requesting a hearing to appeal Commissioner Ted Hughes's decision not to release transcripts from at least 90 witnesses.

Kris Saxberg, the lawyer representing the authorities, said his clients need to see the transcripts in order for the inquiry to achieve the maximum good.

"The more information all parties are aware of, it can ensure the best recommendations are made," said Saxberg.

The groups making the appeal are the First Nations of Northern Manitoba Child and Family Services Authority, the First Nations of Southern Manitoba Child and Family Services Authority and the General Child and Family Services Authority.

Saxberg said witnesses cannot prepare for the inquiry without knowing the exact allegations against them, and they won't know them without the full transcripts.

However, Sherri Walsh, the lead counsel for the commission, said all people and organizations with standing at the inquiry received summaries of the interviews with witnesses that outline any information that would be considered new or potentially alarming.

She said every witness was told before the interviews began that the testimony would not be provided in transcript form to anyone but commission counsel.

To release the transcripts would be unfair to the witnesses, said Walsh.

Not even Hughes will see them.

The interviews were conducted to help commission counsel plan the inquiry hearings, Walsh said.

Hughes already rejected the request for the transcripts, citing the summaries that were provided of the interviews and the fact the witnesses were told the transcripts would not be released before they agreed to the interviews. He also rejected a request to reconsider.

Now, the authorities are asking the Manitoba Court of Appeal for a hearing to make their case.

Saxberg said there is no reason to delay the inquiry, which is set to begin Sept. 5. He said if the matter can't be decided before then, his clients have agreed to let the hearing proceed while the appeal is pending.

Walsh said if the motion is granted, her staff will have to redact names and other data that are not relevant to the proceedings from more than 10,000 pages of transcripts. That will delay the inquiry, she said.

A tentative date of Aug. 23 has been set to hear the motion.

Phoenix was slain in June 2005, three months after her child-welfare file was closed. She was living with her mother, Samantha Kematch, and stepfather, Karl McKay, at the time of her death.

While staying with Kematch and McKay, Phoenix was frequently confined, assaulted and neglected. She died after a brutal assault in the basement of the family's home on the Fisher River First Nation and her body was found several months later in the community's landfill. Kematch and McKay were convicted of first-degree murder.

Questions arose about the way child services handled her case.

The inquiry is tasked with examining the services provided -- or not provided -- to Phoenix and her family.

Motions to quash the inquiry, attempts at publication bans and numerous court motions have delayed the hearings.

When Justice Minister Andrew Swan ordered the inquiry, he expected Hughes would deliver his report in March 2012.

Republished from the Winnipeg Free Press print edition August 17, 2012 B2

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