Girl's killers appeal for manslaughter

DEAN PRITCHARD, SUN MEDIA

, Last Updated: 7:29 AM ET

WINNIPEG -- Karl McKay and Samantha Kematch subjected five-year-old Phoenix Sinclair to months of horrifying abuse but they should not be convicted of first-degree murder, their lawyers told court yesterday.

McKay, 47, and Kematch, 27, are appealing their murder convictions, arguing they should have been convicted of the lesser offence of manslaughter.

A jury convicted the couple last year after finding they repeatedly beat Sinclair and confined her in the basement of their Fisher River home. They were sentenced to life in prison with no chance of parole for 25 years.

Under the criminal code, premeditation is not necessary for a finding of first-degree murder if it can be shown the victim was forcibly confined.

Jurors at trial heard evidence Phoenix feared she would be beaten if she left the basement.

At a hearing yesterday before the Manitoba Court of Appeal, McKay's lawyer Mike Cook argued the basement was a place of refuge for Phoenix, not a prison. Cook said Phoenix was allowed to leave the basement to eat, play or watch television but chose to stay there because it was a place of safety.

"This is not a case where the basement was a dungeon and there was no escape," he said. "She knew she could come upstairs for many, many reasons."

Crown attorney Rick Saull said jurors obviously rejected that argument in convicting McKay and Kematch of first-degree murder.

"One has to wonder how ... any inference could be made that she wanted to be down there," Saull said. "That child was going to do whatever she was told to do and she wasn't going to come upstairs because she knew what was waiting for her."

McKay was solely responsible for the injuries that caused Phoenix's death, argued Kematch's lawyer Leonard Tailleur.

"She did not participate in that, she did not say 'good job', none of that," Tailleur said.

Phoenix was a ward of Child and Family Services for much of her short life until Kematch, her biological mother, regained custody of the girl less than a year before her death on Fisher River First Nation in June 2005.

During that time, Phoenix was subjected to a horrifying battery of abuse. Jurors heard Kematch and McKay routinely beat the girl with their fists, feet, or a metal bar, forced her to eat her own vomit and confined her to a cold barren basement.

McKay's sons from a prior relationship testified his father would choke Phoenix until she passed out. When Phoenix finally succumbed to the abuse, the couple buried her body deep in the bush in an unmarked grave. They continued to collect welfare benefits in the girl's name and tried to pass off another girl as Phoenix to a social worker.

The appeal hearing resumes this morning.

dean.pritchard@sunmedia.ca


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