The body of Phoenix Sinclair, seen here in an undated photo, was uncovered in March 2006. She had been wrapped in plastic and buried in a shallow, unmarked grave near the garbage dump on the Fisher River reserve. (Family photo)

A public inquiry into the brutal beating death of Phoenix Sinclair and the role of Child and Family Services could be months or even years away.

Her stepfather, Karl McKay, is seeking to appeal his first-degree murder conviction to the Supreme Court. However, he needs funding from Legal Aid Manitoba to do that.

His lawyer, Mike Cook, hopes to have an answer on the funding request by the end of October. If it is approved, McKay will have to file an affidavit and motion to extend the appeal period that is allowed following a conviction, since the deadline has passed.

That means the public inquiry into the death, ordered by the province in 2006, remains on hold. A government spokesperson said the inquiry can't begin until all legal proceedings are over.

McKay and Phoenix's mother, Samantha Kematch, were convicted of first-degree murder and sentenced to life in prison in December 2008. They are not eligible for parole for 25 years.

They appealed the convictions to the Manitoba Court of Appeal but their bid was dismissed in March 2010.

Kematch has given her lawyers written instructions not to proceed further on the matter.

Beaten and buried in unmarked grave

Five-year-old Phoenix was killed in the basement of a home on the Fisher River First Nation, about 180 kilometres north of Winnipeg, in June 2005.

Her body was wrapped in plastic and buried in a shallow, unmarked grave near the garbage dump of the reserve.

It wasn't found until March 2006 when McKay led police to the spot.

During the trial, court heard Kematch and McKay routinely beat Phoenix with their fists, feet and metal bars and forced to eat her own vomit. She was also choked until she passed out and was shot with a pellet gun.

Court was told the girl had broken bones throughout her body when she died.

Life of foster care

Phoenix had been in and out of foster care for most of her life until Kematch regained custody about a year before the girl's death in June 2005.

A child welfare worker checked on the family in early 2005 but didn't see Phoenix during the visit, yet no one ever followed up on the case.

No one outside Sinclair's immediate family knew she was missing until RCMP received a tip in 2006. One of McKay's teenage sons told authorities about the abuse he had witnessed.

After the couple were charged, McKay led police to the grave.

As part of the appeal being sought, lawyer Mike Cook argues McKay should have been convicted of manslaughter, not murder.

At issue is whether Phoenix was forcibly confined when she died. Under the Criminal Code, a slaying committed while forcibly holding someone elevates the crime to first-degree murder rather than second-degree murder or manslaughter.

But Cook says Phoenix was not physically locked in the basement and would frequently come upstairs to eat or play with siblings.

With files from CBC’s Patricia Bell