The union representing Manitoba social workers is asking the
province’s highest court to scuttle a long-awaited inquiry into the
death of a five-year-old girl who had spent time in foster care.

The
request comes just months before a commission is to start hearing
testimony – more than six years after Phoenix Sinclair died.

Garth
Smorang, a lawyer for the Manitoba Government and Employees’ Union,
says the inquiry is overstepping its bounds. He said that after going
through 38,000 pages of evidence handed over by commission counsel in
December, union lawyers concluded Commissioner Ted Hughes doesn’t have
jurisdiction under law to look into the circumstances surrounding
Phoenix’s death.

The union’s motion is to be heard before the Manitoba Court of Appeal on Thursday.

“The
scope (of the inquiry) is too broad given the legislation,” Smorang
said Monday. “It’s a question of jurisdiction. Does the government have
the power to ask the commissioner to look into these things? If it
doesn’t, the inquiry could be shut down at any time.”

Phoenix was
five when she was killed by her mother, Samantha Kematch, and
stepfather, Karl McKay, after years of abuse. Both were convicted of
first-degree murder in 2008 and have exhausted their appeals.

The
pair neglected, confined and repeatedly beat the little girl. Court was
told she was shot with a BB gun and forced to eat her own vomit. She
died from her extensive injuries on a cold basement floor on the Fisher
River reserve in 2005. Her body was concealed in a dump.

The girl
was taken by Child and Family Services at least twice during her short
life – once at birth and again three years later – but was returned to
her mother. Her death went unnoticed for nine months.

Hughes was
appointed last March under the Manitoba Evidence Act, which allows
inquiries into matters that are “not otherwise regulated.” Smorang
wouldn’t go into detail about the union’s legal arguments, but said
Child and Family Services is regulated by a number of other pieces of
legislation so an inquiry isn’t appropriate.

Phoenix’s death might be better investigated through an inquest or an internal inquiry, he suggested.

The union asked Hughes to consult with the Court of Appeal to decide whether he has jurisdiction, but Hughes declined.

“Over 10 months have passed since the inquiry was established.
Commission counsel and staff have been hard at work ever since doing
necessary preparatory work, including the interviewing of witnesses, in
order to be ready for the commencement of the presentation of evidence
on May 23, 2012,” Hughes wrote to Smorang. “It is in the public interest
that the timetable … be maintained.”

It’s not the first time
the union’s lawyers have taken issue with the inquiry. Last year, they
filed a motion requesting reporters covering the inquiry be banned from
identifying any workers who might testify. The suggestion is that having
their faces in the news would make it difficult for the workers to do
their jobs. That application has not been heard yet.

The union’s
attempt to derail the inquiry has outraged many including Manitoba’s
First Nations chiefs. They say the union’s motion is a stalling tactic
aimed at preventing the truth from coming out.

Grand Chief Derek
Nepinak with the Assembly of Manitoba Chiefs said the move smacks of
hypocrisy at a time when First Nations communities are constantly being
lectured about accountability.

“One component of our society
talks so much about accountability for First Nations people but won’t
even be accountable for their own actions in dealing with our children,”
he said.

“Here is a prime example of a stalling tactic that is
only going to delay the important recommendations that are going to come
out of this inquiry that could lead to better protection and could lead
to saving children’s lives. It’s very disappointing.”

Chief
Morris Swan-Shannacappo with the Southern Chiefs Organization said First
Nations want to see the inquiry go ahead so child welfare can be
examined and improved. He compared the system which currently has about
10,000 children in care to residential schools.

Chiefs aren’t interested in pointing fingers, he said. They are only interested in making things better for aboriginal children.

“The
truth needs to prevail,” he said. “We want to see the truth come out of
this inquiry so that these things don’t have to happen again.”