09/19/2011 12:55 EDT | Updated 11/19/2011 05:12 EST

Manitoba backs off attempt to soften elements of inquiry into child's murder

WINNIPEG - The government of Manitoba is backing off attempts to soften the language used by its own inquiry into the murder of a five-year-old girl.

Lawyers for the province have chosen not to file a motion to try to prevent the inquiry from using the term "misconduct" when referring to social workers involved in the case of Phoenix Sinclair.

Phoenix died in 2005 after repeated abuse by her mother Samantha Kematch and stepfather Karl McKay. 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 before dying from her extensive injuries on a cold basement floor on the Fisher River reserve in 2005. Her parents concealed her body in a garbage dump.

She was a ward of the province for much of her short life and an inquiry into the circumstances surrounding her death is getting underway.

At the inquiry's first hearing this summer, the province said it would be filing a motion to soften the language of the inquiry so as not to deter potential witnesses. Although the inquiry cannot apportion blame, witnesses are warned before they testify that they could be found guilty of "misconduct."

Provincial lawyer Gordon McKinnon argued that the term is loaded and could create a "chill" among workers. He suggested it be replaced with a term such as "unprofessional."

Commissioner Ted Hughes was to hear more detailed arguments Tuesday but the NDP government — currently running for re-election — decided not to file formal paperwork in July.

McKinnon declined to discuss the matter and referred questions to the province.

"That is the extent of the comments. No application or motion will be filed," said provincial spokesman Glen Cassie in an email. He declined to speak about the issue over the phone.

"It's now up to the commissioner to decide what to do with those comments."

Before the commission can get underway, Hughes must also decide what restrictions, if any, to place on the media. The union representing social workers has filed a motion requesting reporters covering the inquiry be banned from identifying any workers who testify.

A hearing for that motion was scheduled for Monday but was postponed until a later date. Garth Smorang, lawyer for the Manitoba Government and General Employees Union, said identifying the workers would make it difficult for them to do their jobs.

The prospect of having their faces on the nightly news or splashed on the front of newspapers might create a chilling effect, he said.

"We want these social workers to feel as free as possible to go and tell it like it is," Smorang said. "If they know that their names and faces are going to be broadcast all over the news, there is the human factor that people are just going to be a lot less likely to speak their mind."

The commission is off to a slow start and has already suggested it will not conclude by the March 31 deadline set by the provincial government. There are piles of child welfare documents to go through and all are protected by confidentiality law. Court permission is needed before they can be made public.

Commission counsel Sherri Walsh said necessary applications should be filed by the end of the month. But even if court permission is granted quickly, the commission isn't likely to start hearing from witnesses until the new year, she said.

"I expect there will be at least 50 witnesses that we'll have to contact and speak with before we're ready to start the hearings," she said. "All of that takes time."

During her short life, Phoenix was taken into care twice but was returned to her mother both times. The inquiry is charged with looking at how child welfare agencies dealt with Phoenix and why her death went undiscovered for nine months.