A common-law couple who beat their five-year-old daughter to death after she endured months of horrific abuse saw their first-degree murder convictions upheld Thursday by the Manitoba Court of Appeal.
Phoenix Sinclair was routinely punched, slapped, beaten with metal rods, confined to a filthy basement, forced to eat her own vomit and shot with a BB gun before her death on or around June 11, 2005.
Her death was not reported until almost nine months later. Her remains were found buried near a garbage dump at the Fisher River First Nation, about 200 kilometres north of Winnipeg, in April 2006.
Samantha Kematch and Karl McKay appealed their convictions for several reasons, including a claim that the trial judge erred in allowing some evidence in the trial and in her instructions to the jury. They also said they should have received separate trials, and Kematch alleged the verdict against her was "unreasonable."
Most notably, the pair argued they should not have been convicted of first-degree murder because Phoenix was not "unlawfully confined" at the end of her short life. A murder becomes first-degree if the death occurs while the victim is confined.
At the end of their trial, the couple told the court they should be found guilty of manslaughter.
The appeal court rejected the couple’s arguments, saying the trial judge had done nothing wrong.
The court noted the unlawful confinement charge should stand, because while Phoenix may not have been physically barricaded in her bedroom or in the rat-infested basement, her parents clearly controlled her movements through fear and intimidation.
"I would dismiss all grounds of appeal advanced by each accused and confirm their convictions for first degree murder in the death of the child Phoenix Sinclair," wrote Justice Michel A. Monnin.
Kematch’s lawyer said Thursday his client maintains McKay was responsible for the child’s death.
"Mr. McKay was the cause of death," said Leonard Tailleur. "He beat her – there was no dispute about that.
"(Kematch) is an aboriginal woman who’s been in a difficult position her entire life and now for this to come upon her it is disappointing, yes."
Tailleur said his client is considering an appeal to the Supreme Court of Canada.
The horrifying details of Phoenix Sinclair’s short life and brutal death have led to widespread calls for a provincial government inquiry into how Manitoba’s child welfare system may have failed to protect her. Sinclair had been a ward of the province prior to her death.
A provincial government spokesman told Global News such an inquiry would not proceed until Kematch and McKay have exhausted all avenues of appeal.
"We owe it to Phoenix Sinclair and her loved ones to get real answers about the child welfare system in Manitoba and how it failed to protect this little girl," said Manitoba Conservative leader Hugh McFadyen. "With the criminal case effectively resolved, there is no reason why this long-promised inquiry can’t occur."
During the trial, the testimony of McKay’s young teenage sons provided the most harrowing picture of Phoenix’s life.
They told the court how Phoenix was beaten, forced into the basement, and denied food and basic care from her parents. It was Daniel Stevenson, McKay’s 12-year-old son, who told his mother that "his dad had killed someone," according to the appeal.
Testifying for the Crown, a biological anthropologist who examined Phoenix’s remains told court she had "never seen that many injuries on a human skeleton."
With files from Global Winnipeg
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