Thu Mar 4, 12:43 PM
By Steve Lambert, The Canadian Press
WINNIPEG - The Manitoba Appeal Court has ruled that the months of beatings, abuse and neglect that led to the death of a five-year-old girl deserve "society's condemnation" and a first-degree murder conviction.
The Appeal Court on Thursday unanimously dismissed an appeal by Samantha Kematch and her boyfriend Karl McKay in the death of Kematch's daughter.
"This is a case ... of a grossly abusive, confining and dominating course of conduct," Justice Michel Monnin wrote on behalf of the three-judge panel.
Phoenix Sinclair died in the basement of the family home on the Fisher River reserve north of Winnipeg in 2005. Kematch and McKay hid her body and continued to claim her as a dependent for welfare purposes. The ruse was discovered by child welfare authorities and RCMP in the spring of 2006.
At their trial, court heard gruesome testimony from Phoenix's siblings about her being regularly choked, beaten and forced to sleep naked and alone on the concrete basement floor. She was sometimes forced to eat her own vomit and was shot with a BB gun. Many times she was forced to stay in the unfinished basement for hours.
Phoenix died after a final assault in the basement. Kematch and McKay wrapped her body in plastic bags and buried it in a shallow grave near a dump.
The couple's lawyers argued the two didn't plan to kill the girl, so a charge of first-degree murder was too severe. But the Crown successfully argued in 2008 that Phoenix was essentially confined to the basement when she died. Under the Criminal Code, a slaying that occurs when the victim is confined qualifies for first-degree murder.
Defence lawyers argued during the appeal that while Phoenix was told to stay in the basement, she was not physically locked in. The Appeal Court rejected that.
"By their acts and/or omissions, they are both responsible for the fact that death ensued, and the matter of the confinement and domination was sufficiently closely linked to what brought about the death that society's condemnation of their actions renders their conduct first-degree murder."
Phoenix's death will be under more scrutiny. The Manitoba government has promised to hold a public inquiry. The girl spent much of her life in foster care before she was returned to Kematch and fell through the cracks of a troubled system.
A child welfare worker was supposed to check on the girl a few months before her death. He saw a sibling playing happily outside the family's home, decided everything was OK and left without ever seeing Phoenix.