Dismiss MGEU's challenge

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The Manitoba Government and General Employees Union is dogged in its aim to keep Manitobans from hearing the hard truth about how five-year-old Phoenix Sinclair could be murdered and buried nine months before child welfare authorities knew she was missing. It now wants to shut down an inquiry called years ago and launched recently into the death.

Having lost an earlier attempt to keep hidden the names and faces of Child and Family Services workers, the union has filed a legal challenge to shut down the inquiry permanently. The MGEU asserts the province can call an inquiry only if it is "not otherwise regulated" -- meaning, in the union's understanding, that no other form of inquiry can be called to do the same job. The union says that there are two other reviews that could accomplish the work of this commission: an inquest under the Fatal Inquiries Act and a special review under Sec. 4 of the Child and Family Services Act.

The latter review was conducted more than five years ago, but Manitobans will never know what it discovered, as such reviews are done in secret. Then-minister Gord Mackintosh released only its recommendations. At best, that forces ordinary citizens to guess, through implication, where the system failed as Phoenix bounced from caregiver to parent to parent, ending up in the home of her mom, Samantha Kematch, and Kematch's boyfriend, Karl McKay. Her child welfare file was closed three times along the way, the last time two months before she was murdered.

The MGEU is protecting its members, but it should do so with care. This court challenge makes it appear that those child welfare workers fear public scrutiny. Yet this public inquiry would allow the workers to frame their actions and decisions in context and in their own words.

The fact is there is no inquiry, no review and no process of fact-finding that encompasses the breadth and value of a skilfully conducted public inquiry. Winnipeggers, having the benefit of the Driskell and Taman inquiries most recently, understand viscerally the difference between them and a typical inquest, which is carefully constrained to investigating the time, place, circumstances and cause of a death, and then recommending changes to policies and programs to prevent further tragedies.

An inquest is a court process, conducted under the rules of the court, one of which forbids cameras in the room. This naturally restricts how many Manitobans can watch the testimony, judge the credibility of witnesses and weigh evidence to better understand the events.

The most exhaustive inquest in recent history was Mr. Justice Murray Sinclair's review of the deaths of 12 children who underwent heart surgery in 1994 at the Health Science Centre. Judge Sinclair pushed the limits of his mandate. Yet he had to stop short of singling out anyone for special disciplinary review, something the commissioner of the Taman inquiry did.

It is absurd to argue that the Sec. 4 review under the CFS Act could satisfy Manitobans' need for an examination of the role of government agencies in the life and death of this little girl. It is said that Sec. 4 reviews are done to protect other children, but that's a leap of faith for Manitobans who are never told the roles agencies play in such matters.

For all the Sec. 4 reviews ever conducted, Phoenix Sinclair repeatedly fell into and out of the care of CFS agencies. Her murder, two months after the last CFS contact, was scandalous. Six reviews and a murder trial that convicted two people looked at this tragedy from various angles, but the truth remains obscure to the public. The inquiry can tell the whole story and put the actions of all involved into context. That may alter the public's view or confirm its misgivings.

The MGEU's desperate attempt to shut down the inquiry risks further damage to the public's already fragile trust in the agencies that had a role in Phoenix's life. The Court of Appeal should quickly deny the MGEU's challenge so an inquiry too long in the making can move on.

Republished from the Winnipeg Free Press print edition February 7, 2012 A10