Media oppose publication ban at Phoenix Sinclair hearing

Media outlets should be allowed to identify Manitoba social workers who were involved in the life and brutal death of a five-year-old girl, a lawyer for the outlets argues.

Media outlets should be allowed to identify Manitoba social workers who were involved in the life and brutal death of a five-year-old girl, a lawyer for the outlets argues.

Jonathan Kroft began presenting arguments on Thursday afternoon on behalf of five media outlets, including CBC News, that oppose a bid to impose a publication ban on the names of social and child-welfare workers who were involved in the care of Phoenix Sinclair.

Phoenix Sinclair, seen in this undated photo, was discovered dead in March 2006 on the Fisher River First Nation in Manitoba. ((Family photo))

A public inquiry is set for September to examine how the child welfare system failed to protect Phoenix, who was beaten to death in her home at the age of five.

The Manitoba Government Employees Union, which represents those workers, and several child welfare authorities are asking for a publication ban that would forbid reporters from naming or photographing any workers.

MGEU lawyer Garth Smorang has accused the media of being "principally interested in the sensationalization of stories and the laying of blame," not in accuracy or truth.

As well, a lawyer for the child welfare authorities has argued that court cases involving children in care always have publication bans on the names of those involved.

But Kroft said those seeking the ban are government workers who are paid by taxpayers and entrusted to apprehend children when necessary.

"They are asking you to make it illegal for the media to tell the citizens of this province who they are," he told inquiry commissioner Ted Hughes during Thursday's hearing in Winnipeg.

Kroft pointed out that the MGEU tried earlier this year to quash the inquiry altogether on the grounds of legal validity and jurisdiction. The Manitoba Court of Appeal dismissed the union's bid in February.

'This will not be a public inquiry,' lawyer warns

Kroft said the issue goes "right to the heart of our democratic rights" and accused the union and child welfare agencies of wanting to control the public discussion coming from the inquiry.

"If you grant [the publication ban] this will not be a public inquiry," he said.

"You will have facilitated the promise made by the MGEU to its members not to have a public inquiry."

Kroft called the comments made by Smorang and other lawyers on Wednesday "extreme" and said he did not think he would have to explain to the inquiry the concept of freedom of the press.

Earlier in the hearing, which began Wednesday, Kris Saxberg, a lawyer for the regional authorities, said court cases involving child welfare always have such publication bans, and the inquiry should be no different.

But inquiry commissioner Ted Hughes questioned that assertion, saying the inquiry is supposed to be a public hearing.

Phoenix was killed on the Fisher River First Nation in June 2005, but it was not until nine months later that her body was found wrapped in plastic in an unmarked shallow grave.

The little girl died following neglect and repeated abuse by her mother, Samantha Kematch, and stepfather, Karl McKay, both of whom were convicted of first-degree murder in 2008.

Phoenix had spent much of her young life in foster care before Kematch regained custody of her in 2004.

On Wednesday, Smorang said a publication ban on the names and images of social workers should be done for the sake of the witnesses and the children the system is supposed to protect.

Saxberg added that media coverage that names the social workers would "radiate distress through the system" and lead to increased apprehension as social workers err on the side of caution and react to the negative coverage.

'Modest' request, some argue

He said a publication ban is an "extremely modest" request and the public can attend the hearings in person if they want to see the social workers on the stand and hear their names.

Intertribal Child and Family Services lawyer Hafeez Khan said that although his client had little involvement in the Sinclair case, the controversy has affected the agency's ability to operate.

And publishing the names of social workers will hurt Intertribal's ability to attract and retain social workers.

"This is a system that is already under a fair amount of strain. There is a constant shortage of qualified workers … there is a high turnover rate," he said.

But Kroft argued that identifying the individuals involved in the Phoenix Sinclair case would help restore some confidence in the child welfare system.

"These are people, they are not Mr. X and Ms. Y," he said.

Hughes is expected to render his decision on the proposed publication ban on July 12.

With files from The Canadian Press