Legal limbo for Phoenix

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MIKE APORIUS / WINNIPEG FREE PRESS ARCHIVES Phoenix Sinclair�s �spirit still wanders,� her family said, because the Crown refuses to release her remains.

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As jurors continue to weigh the fate of Samantha Kematch and Karl McKay, the remains of their tiny victim still haven't been properly laid to rest, the Free Press has learned.

Now family members of Phoenix Sinclair fear a burial will be delayed yet again should the high-profile murder case end up in the Manitoba Court of Appeal.

"This is beyond sordid. Sordid is an understatement. It's appalling the remains haven't been released to us yet," Kim Edwards, Phoenix's former foster mother, said Wednesday.

"They're not allowing her to have any peace. Her spirit still wanders until she is laid to rest."

Phoenix's remains are being stored by the RCMP because they are considered evidence in the first-degree murder trial of Kematch and McKay. Jurors have been deliberating since Tuesday evening.

McKay and Kematch both admit they played roles in Phoenix's June 2005 death, which came after months of alleged abuse, torture and neglect. Her body was then buried in the woods near the garbage dump on the Fisher River First Nation, about 200 kilometres north of Winnipeg, and not discovered until March 2006.

An anthropologist examined Phoenix's remains on behalf of the Crown and testified during the trial about numerous injuries she found on the girl's body. Lawyers for McKay and Kematch had the option of having their own expert study the bones, which is why they are still considered evidence and can't be turned over to family members.

Edwards said Wednesday that defence lawyers have never had the examination done. But she expects the remains to stay in storage until the case is officially completed. That could still be years if the case winds up before the Manitoba Court of Appeal.

As the Free Press reported Wednesday, there are already several potential avenues for appeal based on judicial rulings and decisions made before and during the trial.

Edwards, speaking for the family of Phoenix's biological father, Steve Sinclair, said Phoenix is to be buried at Brookside Cemetery on Notre Dame Avenue near her baby sister, Echo, who died of sudden infant death syndrome.

A star blanket, to be placed in Phoenix's casket, was made by two inmates of Headingley Correctional Centre and donated to her family. The blanket is pink, white, yellow and red, and has an image of Phoenix on it.

Several thousand dollars have also been raised for a memorial stone, including donations from inmates and an RCMP officer.

Queen’s Bench Justice Karen Simonsen finished her final instructions to the jury just after 7 p.m. Tuesday night, clearing the way for its members to consider the fate of Samantha Kematch and Karl McKay.

Jurors were told to check their emotions at the door as they weighed the fate of Kematch and McKay.

"Punishment has no place in your discussions or in your decision," said Queen's Bench Justice Karen Simonsen.

The 10-woman, two-man jury spent Wednesday deliberating behind closed doors as family members, police officers, lawyers and the media waited for word on a verdict.

In closing arguments last week, prosecutor Rick Saull argued McKay and Kematch killed Phoenix in the course of confining her to a cold, dark basement where she was frequently beaten and forced to sleep on the floor naked. He reminded jurors about other graphic testimony, including claims the girl was shot with a pellet gun, called degrading names and forced to eat her own vomit.

Phoenix's death remained a secret until McKay's two teenage sons came forward and told police they had witnessed countless horrors against the little girl. The boys told jurors both Kematch and McKay played equal roles in the abuse.

www.mikeoncrime.com

Republished from the Winnipeg Free Press print edition December 11, 2008 A3