|Murder victim Phoenix Sinclair. (File Photo)
WINNIPEG — The future of the Child and Family Services-focused public inquiry into the death of Phoenix Sinclair is now firmly in the hands of Manitoba's highest court -- but there's no way to tell when public testimony could start up again.
"We're aware of the urgency of the matter," Court of Appeal Chief Justice Richard Scott said Tuesday after hearing a full day of argument on whether or not lawyers for the inquiry are obliged to disclose roughly 12,000 pages of transcripts of pre-interviews with more than 150 prospective witnesses.
A group of four CFS authorities are battling to get their hands on the records, saying inquiry Commissioner Ted Hughes went out of bounds by denying them access earlier this year.
Hughes ruled the transcripts were internal documents created only to assist inquiry lawyers in preparing so-called 'will-say' summaries of anticipated witness testimony.
The interviews were not conducted under oath, and interviewees were given assurances the full record wouldn't be shared.
The summaries -- about 155 are expected in total -- are to be shared with all prospective witnesses. More than 70 have already been disclosed without issue and within the commission's rules of procedure all parties agreed to more than a year ago, court heard Tuesday.
After permission was granted for the CFS group to take their case to court, public testimony at the inquiry was scuttled in early September after only 2 1/2 days of hearings. The legal fight has put a big question mark over when it will resume.
Scott said the court it assembled itself Tuesday "on an emergency basis" to hear the case.
The CFS group, through lawyer Kris Saxberg, claims the summaries are "absolutely insufficient" and that their clients -- mostly social workers -- should be given full disclosure because their professional reputations are at stake.
It was clear, however, the appeals panel of Justices Scott, Freda Steel and Barbara Hamilton weren't going to simply agree.
"It's something you never agreed to originally," Steel said in challenging Saxberg's claims. "You never expected to get a verbatim transcript."
Saxberg argued there was a disconnect in how all sides involved in the inquiry are working for the best interests of Manitoba kids in care, but only the inquiry was entitled to full disclosure.
"Why would these transcripts not be shared when all of us have the same objective, are working towards the same thing?" Saxberg said. "... To me, everything comes down to the sufficiency of these summaries of the transcripts."
Inquiry lawyers commissioned one of Canada's top legal minds on public inquiries, Simon Ruel, to argue their case. Put simply: the commission maintains Hughes was well within his authority to deny access.
"This doesn't make any sense. The commission has the right to make its own process," Ruel said.
The inquiry's first phase will examine the services Sinclair did or didn't receive from CFS, other circumstances directly related to her 2005 murder at a home on the Fisher River First Nation and why it went undiscovered for months.
She was a ward of Winnipeg Child and Family Services for much of her short life, but was not in care when she died.
Phoenix's mother, Samantha Kematch and her boyfriend, Karl McKay, were convicted in 2008 of first-degree murder for Sinclair's killing.
The Manitoba government announced they would call the public inquiry in 2006, but the Order-in-Council authorizing it in law wasn't issued until early 2011.