Mike on Crime

by Mike McIntyre

  “You get beat up lots?” asked Charett.

  “Yeah, every day,” said McKay.

  Charett said he believed there was truth to a person being a “product of their environment.”

  “I’m not angry at the world,” said McKay.

  “The important thing is not to get caught in that vicious cycle where you’re doing things that were done to you,” replied Charett.

  McKay had become emotional when he led police to Phoenix’s final resting spot. “I’m sorry, you shouldn’t be out here. Phoenix shouldn’t be out here,” McKay told RCMP officers who had driven him from Headingley jail to the makeshift gravesite at the Fisher River First Nation. A 17-minute video of McKay leading police to the burial location was shown to jurors. McKay and four officers went to the remote, wooded location by snowmobile, then trudged through deep snow before coming to an opening. Police used powerful lights to brighten the scene.

  “It wasn’t very far off the trail. I think it was just this spot here,” McKay said before using his gloves to draw the spot in the crunchy snow. McKay insisted he was “99 per cent sure” they had the right spot, then recalled how he and Kematch used a spade to dig a hole for the little girl’s body. “It was about eight inches in the ground,” McKay said. “She’ll be face up. I wrapped her in plastic with a yellow rain jacket. Her head will be here, her legs here.”

  Police asked if there would be anything else found in the grave.

  “Just the dirt that she’ll be covered with,” McKay said.

  He said Kematch insisted they pour pepper into the grave before covering it up to throw off police dogs that might sniff out the location. He said she got the idea from watching the television show Crime Scene Investigation. “It’s a very sad thing that I’ve done, burying her out here,” McKay told RCMP. “But at the spur of the moment, you’re scared.” McKay said he had borrowed the spade from a relative to dig a trench in his yard “and then this thing came up.”

  “I feel a lot better now that I’ve shown you this spot,” McKay told police.

  FRIDAY DECEMBER 5, 2008

  She never stood a chance. Crown attorney Rick Saull told jurors Phoenix’s fate was sealed by two heartless accused who worked together to kill her and then went to stunning lengths to cover up their crime. “Death here for this little girl was inevitable, given the course of conduct by these two accused,” he said in his closing argument.

  Saull said it was irrelevant how the abuse specifically broke down between Kematch and McKay. “Don’t fall into that trap. Whether one went 10 or 20 punches more, or one used a weapon and one didn’t, it doesn’t matter,” he said. “You just have to hold a small child in your arms once in your lifetime to know what a fragile life that is.” Saull reminded jurors of the “absolutely mind-boggling” testimony they heard and said the verdict should be clear. “This is not normal parenting in any country in this world. That was an illegal domination of a child,” he said. He singled out Kematch for continuing to collect social welfare cheques in Phoenix’s name and trying to mislead investigators by passing off another young child as Phoenix.

  Saull said it’s obvious Phoenix was being confined in the home, which was an essential element to proving first-degree murder. There was evidence of exterior locks on doors and a makeshift wooden pen that was constructed for her in the basement. “This little girl wasn’t going anywhere unless these two people let her,” he said. “They are both guilty of first-degree murder. And that is justice for all of us.”

  Samantha Kematch admitted being a horrible mother. But she denied being a murderer. Her lawyers, Sarah Inness and Roberta Campbell, told jurors the Crown had failed to prove the case and urged them to convict her on the lesser charge of manslaughter. “She was an abusive, horrible mother. She could have prevented her daughter’s death and she didn’t,” said Inness. “There are many things that she should have done and should not have done. She treated her daughter terribly. But she did not kill her. [Karl] McKay killed Phoenix.”

  She called McKay a “violent man who ruled the home with an iron fist” and clearly “despised” Phoenix because she wasn’t his biological child. She noted McKay’s violent history of abusing other women and children in his life. “There was an obvious power imbalance in the relationship,” said Inness. She said it was McKay’s idea to bury Phoenix’s body after he delivered the final, fatal beating. “The fact she hid the truth and helped McKay cover it up doesn’t mean she intended to kill her. She did nothing to encourage or assist McKay,” said Inness.

  Karl McKay says he took marching orders from his common-law wife and was mostly in the background as Phoenix’s life was being taken away.

  “That woman is a cold-hearted woman,” defence lawyer Mike Cook said during his closing argument, pointing a finger directly towards the prisoner’s box where Samantha Kematch sat. “She is most definitely the type who could kill, and would kill, her own child. A callous woman who cares nothing about her child.”

  Cook, along with fellow defence lawyer John Corona, said it was ridiculous for Kematch to suggest McKay had some kind of control over her. “This is not some wallflower type of woman who has been intimidated and dominated by Mr. McKay. Ms. Kematch was the dominant force in that house,” said Cook, who believes Kematch began to turn on Phoenix after giving birth to another baby in 2004. “She rejected that child to the point it became easy to abuse her,” said Cook.

  He told jurors to remember how upfront McKay was with police following his arrest, even leading them to Phoenix’s burial site. “Mr. McKay is a truthful man. You can accept and believe everything he said,” said Cook. He also suggested the Crown had failed to prove confinement: the key element of the murder charge. “Phoenix was not forcibly confined. Mistreated, abused ... absolutely,” said Cook.

  FRIDAY DECEMBER 12, 2008

  It had taken four long days of deliberations, a sure sign they were wrestling with the difficult task before them. But in the end, a Winnipeg jury came back with the only verdict that made sense to those who’d followed the case closely, Guilty.

  Samantha Kematch, now faced with the opportunity to finally explain her actions, was defiant to the end. “I know the truth. I was there. I loved Phoenix and she loved me. Everyone can say what they wanna say, call me what they wanna call me. I never did this and I know this,” an emotionless Kematch said, shortly after being convicted of first-degree murder and given an automatic life sentence with no chance of parole for 25 years. She told everyone in the packed courtroom they will likely “never know the truth” and took aim at her former lover, Karl McKay, by suggesting he acted alone and took her down with him. And she said “saying sorry won’t change anything.” So she didn’t.

  Kematch learned her fate first, staring blankly ahead as she pursed her lips. McKay was seen to take a series of deep breaths and close his eyes. He then clasped his hands together and held them to his mouth while bowing his head after hearing his verdict. McKay later told court he was “ashamed” at his role in Phoenix’s killing and he shed several tears during the hearing. “I’m truly sorry from my heart. This should not have happened. This girl was full of life and happy when she entered my life,” McKay wrote in a letter read aloud by his lawyer, Mike Cook. “I’ve let everyone down. I am shameful. Phoenix, I know you can hear me. I’m sorry. Please forgive me.”

  Kim Edwards, Phoenix’s former foster mother, had the courtroom in tears while reading her victim impact statement. She described Phoenix’s eyes, which she called “big brown mesmerizing saucers” and said the little girl would have been in Grade 2 today if not for the actions of her mother and stepfather. “I can see her now, all inquisitive and curious and showing other kids how to rock out and have fun,” said Edwards. “It is beyond words to describe how I feel about that precious child. In all honesty I believe she was a gift sent to me from the heavens. Phoenix’s heart belongs to me, and mine to hers.”

 
Edwards said she feels rage toward Kematch and McKay and will never forgive them. “I’ve come to terms with what these people did to Phoenix. But I will never understand,” she said.

  Steve Sinclair, Phoenix’s biological father, wrote that his daughter “never knew what pain was” until he gave her up. He said “the complete opposite was done to her” while in the care of Kematch and her common-law husband. “I always loved Phoenix. She was never a burden to me of any kind,” he wrote. “She keeps my life going, and I’ll always keep the memories of her going. I hope this never happens to another child again.”

  Many people close to Phoenix were in court as the verdict was read, including Edwards and Loretta Stevenson, mother of McKay’s two teenage sons.

  “I’m sad for Phoenix, but happy they’re getting what they deserve,” McKay’s sister, Hilda, said shortly after hearing the verdict. “Justice is never going to be done for this little girl. Too much happened to her. It shouldn’t have happened to her, we all know that. It shouldn’t happen to any little child.”

  Tara Clelland-Hall, an RCMP officer who interviewed Kematch, was also in tears after the verdict. Top investigators in the case also attended court.

  “This case reminds each of us what our fellow human beings are capable of,” Crown attorney Rick Saull said outside court.

  It was a rare sight—nearly every member of a jury returning to court to see justice meted out to the people they’d just convicted. All 10 women who served on the Phoenix Sinclair case sat through the sentencing of Karl McKay and Samantha Kematch. Only the two men on the panel weren’t present.

  “I’ve never seen anything like it,” defence lawyer John Corona, who represented McKay, said outside court. He believed Phoenix’s tragic story stuck an emotional chord with the jurors, who were stone-faced when they delivered their guilty verdicts. Most of the women were in tears and passing around a box of Kleenex as they listened to victim impact statements being read aloud in court. “I don’t think they’re ever going to forget this case,” said Corona.

  All members of the jury would now be offered counselling as a result of their five-week ordeal.

  SUNDAY DECEMBER 14, 2008

  “I failed her,” Samantha Kematch said, her eyes cast downward and showing a hint of tears. Across the table sat a Winnipeg Free Press reporter. “She never deserved any of this to happen to her. She deserved better.”

  It was the first public show of remorse from Kematch, who displayed no tangible emotion during her month-long trial, and made no apologies in her brief and bitter final remarks before being sentenced. Kematch wanted the public to know she’s not some heartless automaton. “You guys can sit there and say I have no feelings. Well, everyone shows their emotions in different ways. Not everyone cries. I’m one to hold their tears,” Kematch said. “I’m not the type to freak out. I control my crying. But I hurt inside.”

  Saying sorry isn’t the only reason Kematch was speaking out. She wanted to explain her courtroom comments, in which she told the judge that people will likely “never know the truth” and accused her former lover, McKay, of wrongly taking her down with him. “I didn’t kill my daughter, I didn’t do these things to her like everyone says I did,” Kematch said. “What did I do to her? I loved her.”

  Admitting she’s “not the best parent in the world or anything,” Kematch insisted she was powerless to stop an abusive McKay from slowly taking Phoenix’s life. And she painted herself as a victim as well, claiming McKay would often take out his anger on her. “I tried to stop it. That’s where I failed. I failed her, I failed myself. But I tried to stop [McKay] from doing things to her. I would even take a beating so she wouldn’t take it,” she says. “I get so frustrated. He’s only trying to make himself look good. I loved Phoenix and I cared for Phoenix. He’s just sitting there, denying that he did anything.” She admitted to having thoughts about attacking McKay in the witness box they shared during the trial. Those thoughts intensified after the guilty verdict and led to a sheriff’s officer having to sit between them. “I was really angry, I was shaking,” she said.

  Under questioning, Kematch admitted she passed up many opportunities when she was alone with Phoenix and could have fled the home, call police, contact a friend or family member or take the injured girl to a hospital. “If I could go back and change all of this from happening, I’d do it in a second. A lot of people don’t understand how these kinds of relationships work. The relationship was abuse, controlling, possessive. When you’re in an abusive relationship it’s not like you can just get up and leave. It’s not easy to walk away,” she said. Kematch admitted she was strict with Phoenix at times, but claimed McKay did all the physical damage.

  One of the most damning pieces of evidence against Kematch was the fact she tried to hide Phoenix’s death by pretending another little girl was her daughter during a meeting with child welfare officials. “I didn’t want to go and pass off someone else’s kid to hide the fact she was gone. It was [McKay’s] idea to start doing shit like that,” Kematch said. “I wanted to tell them about this but he said no.” She said McKay was also behind her registering for child benefits in Phoenix’s name, even after the girl had been killed.

  Kematch says Phoenix would still be alive today if McKay, a longtime friend of her mother, hadn’t entered their lives. He began asking her out after they met in December 2003.

  “I didn’t really want to go out with him. I was single and I wanted to enjoy it for a while. Plus he was so much older than me [20 years],” Kematch said. She eventually agreed. “[Before McKay], Phoenix and I were good. We laughed, had fun, we’d play. We’d say we loved each other, hug each other. That was life for me and Phoenix before he came into the picture,” she said.

  Being convicted of her daughter’s killing was just the latest in a long line of tragedies for Kematch. When she was a child, her alcoholic father died after falling down a flight of stairs. Her oldest brother committed suicide in Swan River when she was 12. She and her two other brothers bounced around in foster care because their mother was unfit to care for them. She only finished her Grade 9 and had a spotty employment history. She had battled problems with drugs and alcohol for years.

  Kematch said the reality of her conviction hadn’t hit her yet. She wouldn’t be eligible for parole until 2031, when she would be 50 years old. “I don’t really feel like it’s happened yet. I guess I’m feeling mixed emotions about it. I feel better in a way that this case is done so that [Phoenix] can rest,” Kematch said.

  THURSDAY DECEMBER 18, 2008

  Karl McKay knew his words would likely ring hollow—but that wasn’t stopping the convicted killer from speaking out about his role in the death of Phoenix Sinclair. “I know I’m the most hated person in this province and probably the whole country,” McKay told the Winnipeg Free Press in an interview at the Winnipeg Remand Centre. “[Phoenix] didn’t deserve this. It was a tragedy. I’m so very sorry. I can’t turn back the clock. I just wish it never happened.” McKay said he wanted to set the record straight about his feelings toward Phoenix and allegations made against him by his former lover and co-accused, Samantha Kematch. “That’s bullshit,” said McKay. “Samantha hated Phoenix. I know this because I was around. She’s just trying to clear her name.”

  McKay, a long-distance trucker by trade, claimed Phoenix was always terrified when he’d hit the road and leave her alone with Kematch. McKay said his biggest mistake was staying in a relationship with Kematch, who he claimed was responsible for Phoenix’s death. “I should have listened to my heart and not her,” he said. “I can’t imagine a mother would be that evil.”

  McKay denied Kematch’s claims that he was physically abusive towards her, noting there were no records of police reports. McKay admitted he had abused other women in previous relationships but said he was a different person back then, largely because of excessive alcohol use. “People change, people can change overnight. I was a drink
er back then, I had many binge blackouts. But that was then, this is now,” he said.

  McKay declined to talk about the testimony of his sons or why they’d say things he claimed were untrue. He said it was Kematch’s idea to pass off a young relative as Phoenix once child-welfare officials began investigating the case. He said Kematch was “white as a ghost” when she realized the truth was about to emerge and was desperate not to have her other two children by McKay taken from her.

  McKay said he was happy a provincial inquest would now be held into Phoenix’s case. “People, in general, should love their children. This is a wake-up call to love your child,” said McKay. “I just don’t want this to happen to another child. It’s just not right.”

  Phoenix Sinclair’s legacy would be a massive overhaul of Manitoba’s child-welfare system. A public inquiry was held into the tragic case, exposing how the little girl fell through a massive series of manmade cracks. I personally didn’t cover the inquiry. To be honest, I couldn’t stomach it. I’d covered the initial investigation, the trial and then conducted the jailhouse interviews with the two murderers. It was just too much.

  But I did follow the inquiry closely, and was glad to see Commissioner Ted Hughes pull no punches when he released a 900-page report in January 2014. Hughes made 62 recommendations, warning that future tragedies would occur if changes weren’t made. He specifically cited the failures of front-line social workers to protect Phoenix.

  “I believe that the Child and Family Services workers who testified at this inquiry wanted to do their best for the children and families they served,” Hughes wrote. “I believe that they wanted to protect children. However, their actions and resulting failures so often did not reflect those good intentions.”

  One of the biggest recommendations was for the provincial government to abolish the office of the Children’s Advocate and replace it with a more powerful independent office with the ability to keep close check on the child-welfare system. Hughes said front-line workers and supervisors knew from the moment Phoenix was born that she required close monitoring given the conditions she was being raised in. Yet he noted CFS got tips or information at least 13 times that Phoenix was in danger or neglected. And despite having more than 25 CFS workers involved with the family, none had any clue she was missing.