Phoenix’s killers appeal
It's not first-degree murder, but manslaughter, they say
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Hey there, time traveller!
This article was published 13/10/2009 (5997 days ago), so information in it may no longer be current.
A Manitoba couple found guilty of killing the woman’s young daughter will argue today their conviction should be reduced to manslaughter.
In separate briefs filed with the Manitoba Court of Appeal, Samantha Kematch and Karl McKay argue they were unfairly convicted of first-degree murder. Their appeal begins today in Winnipeg.
They point out they denied during their trial that they confined five-year-old Phoenix Sinclair to a basement where she died on the cold floor after the last of many beatings.
Under the Criminal Code, someone is deemed to have committed first-degree murder instead of second-degree murder or manslaughter if he or she forcibly confined the victim at the time of the slaying.
The verdict was "contrary to law and against the weight of evidence," reads a factum filed by Kematch’s lawyer, Leonard Tailleur.
Kematch and McKay were sentenced last December to life in prison for the neglect and repeated beatings that killed Phoenix. The girl’s stepbrothers testified she was often hit, choked, shot with a BB gun and forced to spend days and nights lying naked in the basement of the family’s home on the Fisher River reserve north of Winnipeg. There was also testimony she was forced to eat her own vomit.
Experts told court the girl had suffered repeated injuries over a long period of time and had broken bones all the way from her pelvis to her skull. She died after a beating in June 2005, but her death went unnoticed until March 2006.
The Crown successfully argued the killing qualified as first-degree murder because Phoenix was forcibly kept in the basement.
McKay’s lawyer, Mike Cook, argues that though the girl was sometimes told to stay in the basement, and occasionally penned in behind a washer, she was not physically restrained at the time of her death.
"There was no evidence of any physical confinement… that could be causally and temporally linked to Phoenix’s death. The trial judge should have directed an acquittal on first-degree murder."