07/04/2012 11:59 EDT | Updated 09/03/2012 05:12 EDT

No-name inquiry: lawyer wants social worker IDs banned at dead child's hearing

WINNIPEG - Social workers who may have failed to protect a young girl from falling through the cracks of Manitoba's child-welfare system must be protected from being pilloried in the media, a union lawyer said Wednesday.

Garth Smorang, lawyer for the Manitoba Government Employees Union, is asking for a publication ban on the identities of social workers at an upcoming public inquiry into the horrific beating death of five-year-old Phoenix Sinclair in 2005.

"The media appears, Mr. Commissioner, to be no longer interested in the accuracy or the truth of the facts that it prints or publishes or broadcasts," Smorang told inquiry commissioner and retired judge Ted Hughes.

"It is primarily interested, in my respectful submission, in the sensationalisation of stories and the laying of blame."

The inquiry, slated to start in September, will look at how child welfare failed to protect Sinclair. She had spent most of her life in foster care but was returned to her mother, Samantha Kematch, in 2004. The girl suffered near-constant abuse by Kematch and the woman's boyfriend, Karl McKay.

While still under the supervision of Child and Family Services, Phoenix was frequently confined, shot with a BB gun, forced to eat her own vomit and neglected. She died after a brutal assault in the basement of the family's home on the Fisher River reserve north of Winnipeg.

A few months before her death, a social worker went to check on Sinclair and was told she was asleep. He saw a sibling playing outside who appeared healthy and decided that was enough.

Sinclair's death went undetected for nine months, and Kematch and McKay continued to claim benefits in her name. Eventually, a relative called police. The girl's body was found in a shallow grave and Kematch and McKay were convicted of first-degree murder.

The union that represents social workers has fought to limit the inquiry. It attempted earlier this year to have the death examined instead by a provincial court inquest, which is more limited in scope and lacks the power to subpoena witnesses.

That argument was rejected by the province's Court of Appeal.

The union is now pushing for a publication ban that would forbid the media from naming or taking pictures or video of any of the social workers who dealt with Sinclair.

Subjecting the workers to such media exposure would harm their ability to do their job, Smorang said. The exposure is also much more extreme with web sites and online comments, he added.

"Gone are the days when you're only infamous until garbage day, because on garbage day the papers get thrown out. Now when you're infamous, you're infamous in perpetuity," Smorang said.

"Social workers will become game for the bloody-minded."

Hughes asked Smorang whether a publication ban was the only option.

"Are there not other measures their employer could take to reduce the risk to workers — that is, remove them from the front line on a temporary basis or to provide counselling to them to cope with the stress and morale issues that arise?" Hughes asked.

Regional child welfare authorities are also asking for the publication ban. They say it should go even further. Their lawyer, Kris Saxberg pointed out that media are not allowed under provincial law to identify parties or witnesses in court cases involving child welfare. That includes parents, foster parents and others. He suggested the principle should be extended to the public inquiry.

"The status quo is confidentiality, the status quo is no public access," Saxberg said.

"We're not starting at the open-court principle. We're starting at the restrictions with respect to the public and with respect to the media that are always in place in every proceeding where the state is dealing with the protection of children."

But Hughes questioned the idea.

"Remember this is a public hearing. Maybe you don't think it is," the commissioner said.

Lawyers for several Winnipeg media outlets and the Assembly of Manitoba Chiefs are to argue against a publication ban on Thursday. The lawyer for Kim Edwards, the foster mother who cared for Phoenix Sinclair for much of her short life, will also argue against the ban.

Hughes is scheduled to give his decision July 12.