Mike on Crime (9 page)

“I feel ashamed. I feel stupid. She didn't deserve anything like that. I think about it every day,” she said. “I didn't want to see my kid like that. It hurt to see her like that. He wouldn't let me help her. He'd get mad at me.” However, Kematch admitted to beating Phoenix at times for no clear reason. “I'd hit her because I'd get mad at her. I knew that wasn't right,” she said.

Jurors heard how Phoenix spent her last hours naked, with an injury to her buttocks, lying on a cold basement floor. Kematch says McKay pushed her daughter violently to the ground, causing the child to bang her head on the concrete the day before her death. “I know it wasn't planned,” Kematch said. “We didn't do it purposely. It was just something that got out of hand. An accident. This wasn't supposed to happen. I never wanted this to happen.”

She said McKay asked her to bring him a garbage bag to wrap the child in when they discovered the next day she wasn't breathing. She said McKay put Phoenix in the trunk of a car and buried her in a hole in a wooded area near the dump at Fisher River reserve.

THURSDAY NOVEMBER 13, 2008

Her cries for help would keep him awake at night, an injured little girl pleading for food and water in an unheated basement filled with garbage and cobwebs. But it was the sound of silence that triggered a young boy to make a horrible discovery in his own home. The youngest stepbrother of Phoenix Sinclair told a Winnipeg jury how he found the five-year-old girl's body moments after she got what would be her final beating at the hands of her mother and stepfather. The boy, now 15, fought back tears as he described Phoenix's final moments alive in June 2005.

“I went downstairs and there was no answer from her. I just touched her back and it was all cold. Her eyes were open. I put my hand on her mouth... she wasn't even breathing,” he said. His father, Karl McKay, and stepmother, Samantha Kematch, had been “taking turns” beating Phoenix, he said, and then left the Fisher River First Nation home to visit a relative. “They were passing her back and forth, punching her,” said the boy.

After finding Phoenix's body, he called his grandfather looking for help. McKay and Kematch returned to the home, picked Phoenix up and placed her in a bathtub filled with warm water. “They weren't even crying or anything,” the boy said. “I'd look at their faces. I saw no tears, nothing. They didn't even care what they were doing.” The couple finished washing her body, then wrapped her up in a tarp, took it outside and placed it in the trunk of their vehicle, he said. “They said ‘watch your baby sister, we're going to go to the dump and bury her.'”

That was the last time he saw Phoenix. He said McKay and Kematch told him not say a word about it. “They told me that if anybody asks, just say Phoenix went to Winnipeg to live with her dad,” he said.

McKay's son told jurors how he watched helplessly as the couple repeatedly abused Phoenix “just for the hell of it.” He said she was often forced to sleep in the “dark, cold” basement without any food or water. “It was dirty down there, you could see spider webs and garbage everywhere,” he said. He awoke sometimes at night to the sound of Phoenix “sobbing through the vents.” He would often go down to give her water and even tried to bring her a heater one night, only to be caught by his father and threatened. “She was just curled up in a little ball,” he said. “The only time Samantha and [McKay] would go downstairs was to hit her.”

He told jurors about beatings, including when McKay broke a metal broomstick over Phoenix's back and then used the broken end to cut her knuckles. “There was blood all over. It got infected,” he said. McKay would also stomp on her and choke her to the point of unconsciousness, he said. “Her eyes would go back, her body would go limp and he'd just let her drop,” he said. “He'd hit her so much that she wouldn't even cry anymore. She'd just take it.”

MONDAY NOVEMBER 17, 2008

Karl McKay finally broke down under extensive police interrogation and agreed to lead officers to the body of five-year-old Phoenix Sinclair in a decision he said proves he “has a heart.” Jurors listened to a nine-hour audiotaped interview that began inside the Headingley jail and ended with McKay taking RCMP investigators to Phoenix's burial site. They heard how McKay initially refused to give any details beyond a vague map he drew for police despite repeated pleas for information.

“We're prepared to spend millions and millions of dollars to dig for Phoenix. We know she's out there, with no proper burial,” Sgt. Norman Charett told McKay in the interview. “Phoenix didn't just walk away and start a life on her own. To have this girl sitting out there like she's trash... She's spent enough time out there.”

Police continued to hammer away at McKay, telling him they wouldn't quit until the little girl's body was found. They also warned McKay that extensive media coverage would continue, noting the
Winnipeg Free Press
had identified McKay's 12-year-old son as a key witness against him. “There's going to be no closure for your boys,” Charett said. “We'll continue to dig and dig and dig and dig. Trust me, there are unlimited funds.”

Police then played on McKay's emotions, telling him he was not a “monster” and unlike notorious Canadian murderers such as convicted serial killer Robert Pickton of BC. “That guy doesn't care about anybody. But you have a chance here,” Charett told McKay. “We need to put a rest to this once and for all, so that everyone can have some peace about this,”

At that point, McKay began to cry and blurted out: “OK, I'll do the right thing... I'll show you the exact spot.” “I have a heart,” he added. “I'm not just doing this to score brownie points.” McKay then described his love for his other children, his fears about having them raised through the social welfare system and even told police about how he once saved the life of a choking baby by dislodging an item from his throat.

“It's sad when children die,” said McKay, who asked officers if his first-degree murder charge might be reduced. “Maybe it will come down to second-degree or even criminal negligence,” he said. Police said the directions to Phoenix's remains “puts a good light on you” but didn't make any promises.

McKay also spoke of being called “baby killer” by other inmates at the remand centre and his disgust at being housed in a cell with another man charged with killing a child. He also blamed his own abusive, alcoholic father for not setting him straight in life. “If it wasn't for alcohol, I'd have been an upstanding citizen. I wouldn't be sitting here,” he said. McKay told police he loved his kids and knew first-hand what it was like to be the victim of the welfare system. “Yeah, I've had a hard life. I've been abused as a kid. I know what it's like to get a licking, stuff like that,” McKay said.

McKay said he was one of 26 children his father had and called himself the “black sheep of the family” who lived in many foster homes.

“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.”