Mike on Crime (10 page)

Kim Edwards, Phoenix's former foster mother, had the courtroom in tears while reading her victim impact statement. She described Phoenix's eyes, which she called “big brown mesmerizing saucers” and said the little girl would have been in Grade 2 today if not for the actions of her mother and stepfather. “I can see her now, all inquisitive and curious and showing other kids how to rock out and have fun,” said Edwards. “It is beyond words to describe how I feel about that precious child. In all honesty I believe she was a gift sent to me from the heavens. Phoenix's heart belongs to me, and mine to hers.”

Edwards said she feels rage toward Kematch and McKay and will never forgive them. “I've come to terms with what these people did to Phoenix. But I will never understand,” she said.

Steve Sinclair, Phoenix's biological father, wrote that his daughter “never knew what pain was” until he gave her up. He said “the complete opposite was done to her” while in the care of Kematch and her common-law husband. “I always loved Phoenix. She was never a burden to me of any kind,” he wrote. “She keeps my life going, and I'll always keep the memories of her going. I hope this never happens to another child again.”

Many people close to Phoenix were in court as the verdict was read, including Edwards and Loretta Stevenson, mother of McKay's two teenage sons.

“I'm sad for Phoenix, but happy they're getting what they deserve,” McKay's sister, Hilda, said shortly after hearing the verdict. “Justice is never going to be done for this little girl. Too much happened to her. It shouldn't have happened to her, we all know that. It shouldn't happen to any little child.”

Tara Clelland-Hall, an RCMP officer who interviewed Kematch, was also in tears after the verdict. Top investigators in the case also attended court.

“This case reminds each of us what our fellow human beings are capable of,” Crown attorney Rick Saull said outside court.

It was a rare sight—nearly every member of a jury returning to court to see justice meted out to the people they'd just convicted. All 10 women who served on the Phoenix Sinclair case sat through the sentencing of Karl McKay and Samantha Kematch. Only the two men on the panel weren't present.

“I've never seen anything like it,” defence lawyer John Corona, who represented McKay, said outside court. He believed Phoenix's tragic story stuck an emotional chord with the jurors, who were stone-faced when they delivered their guilty verdicts. Most of the women were in tears and passing around a box of Kleenex as they listened to victim impact statements being read aloud in court. “I don't think they're ever going to forget this case,” said Corona.

All members of the jury would now be offered counselling as a result of their five-week ordeal.

SUNDAY DECEMBER 14, 2008

“I failed her,” Samantha Kematch said, her eyes cast downward and showing a hint of tears. Across the table sat a
Winnipeg Free Press
reporter. “She never deserved any of this to happen to her. She deserved better.”

It was the first public show of remorse from Kematch, who displayed no tangible emotion during her month-long trial, and made no apologies in her brief and bitter final remarks before being sentenced. Kematch wanted the public to know she's not some heartless automaton. “You guys can sit there and say I have no feelings. Well, everyone shows their emotions in different ways. Not everyone cries. I'm one to hold their tears,” Kematch said. “I'm not the type to freak out. I control my crying. But I hurt inside.”

Saying sorry isn't the only reason Kematch was speaking out. She wanted to explain her courtroom comments, in which she told the judge that people will likely “never know the truth” and accused her former lover, McKay, of wrongly taking her down with him. “I didn't kill my daughter, I didn't do these things to her like everyone says I did,” Kematch said. “What did I do to her? I loved her.”

Admitting she's “not the best parent in the world or anything,” Kematch insisted she was powerless to stop an abusive McKay from slowly taking Phoenix's life. And she painted herself as a victim as well, claiming McKay would often take out his anger on her. “I tried to stop it. That's where I failed. I failed her, I failed myself. But I tried to stop [McKay] from doing things to her. I would even take a beating so she wouldn't take it,” she says. “I get so frustrated. He's only trying to make himself look good. I loved Phoenix and I cared for Phoenix. He's just sitting there, denying that he did anything.” She admitted to having thoughts about attacking McKay in the witness box they shared during the trial. Those thoughts intensified after the guilty verdict and led to a sheriff's officer having to sit between them. “I was really angry, I was shaking,” she said.

Under questioning, Kematch admitted she passed up many opportunities when she was alone with Phoenix and could have fled the home, call police, contact a friend or family member or take the injured girl to a hospital. “If I could go back and change all of this from happening, I'd do it in a second. A lot of people don't understand how these kinds of relationships work. The relationship was abuse, controlling, possessive. When you're in an abusive relationship it's not like you can just get up and leave. It's not easy to walk away,” she said. Kematch admitted she was strict with Phoenix at times, but claimed McKay did all the physical damage.

One of the most damning pieces of evidence against Kematch was the fact she tried to hide Phoenix's death by pretending another little girl was her daughter during a meeting with child welfare officials. “I didn't want to go and pass off someone else's kid to hide the fact she was gone. It was [McKay's] idea to start doing shit like that,” Kematch said. “I wanted to tell them about this but he said no.” She said McKay was also behind her registering for child benefits in Phoenix's name, even after the girl had been killed.

Kematch says Phoenix would still be alive today if McKay, a longtime friend of her mother, hadn't entered their lives. He began asking her out after they met in December 2003.

“I didn't really want to go out with him. I was single and I wanted to enjoy it for a while. Plus he was so much older than me [20 years],” Kematch said. She eventually agreed. “[Before McKay], Phoenix and I were good. We laughed, had fun, we'd play. We'd say we loved each other, hug each other. That was life for me and Phoenix before he came into the picture,” she said.

Being convicted of her daughter's killing was just the latest in a long line of tragedies for Kematch. When she was a child, her alcoholic father died after falling down a flight of stairs. Her oldest brother committed suicide in Swan River when she was 12. She and her two other brothers bounced around in foster care because their mother was unfit to care for them. She only finished her Grade 9 and had a spotty employment history. She had battled problems with drugs and alcohol for years.

Kematch said the reality of her conviction hadn't hit her yet. She wouldn't be eligible for parole until 2031, when she would be 50 years old. “I don't really feel like it's happened yet. I guess I'm feeling mixed emotions about it. I feel better in a way that this case is done so that [Phoenix] can rest,” Kematch said.

THURSDAY DECEMBER 18, 2008

Karl McKay knew his words would likely ring hollow—but that wasn't stopping the convicted killer from speaking out about his role in the death of Phoenix Sinclair. “I know I'm the most hated person in this province and probably the whole country,” McKay told the
Winnipeg Free Press
in an interview at the Winnipeg Remand Centre. “[Phoenix] didn't deserve this. It was a tragedy. I'm so very sorry. I can't turn back the clock. I just wish it never happened.” McKay said he wanted to set the record straight about his feelings toward Phoenix and allegations made against him by his former lover and co-accused, Samantha Kematch. “That's bullshit,” said McKay. “Samantha hated Phoenix. I know this because I was around. She's just trying to clear her name.”

McKay, a long-distance trucker by trade, claimed Phoenix was always terrified when he'd hit the road and leave her alone with Kematch. McKay said his biggest mistake was staying in a relationship with Kematch, who he claimed was responsible for Phoenix's death. “I should have listened to my heart and not her,” he said. “I can't imagine a mother would be that evil.”

McKay denied Kematch's claims that he was physically abusive towards her, noting there were no records of police reports. McKay admitted he had abused other women in previous relationships but said he was a different person back then, largely because of excessive alcohol use. “People change, people can change overnight. I was a drinker back then, I had many binge blackouts. But that was then, this is now,” he said.

McKay declined to talk about the testimony of his sons or why they'd say things he claimed were untrue. He said it was Kematch's idea to pass off a young relative as Phoenix once child-welfare officials began investigating the case. He said Kematch was “white as a ghost” when she realized the truth was about to emerge and was desperate not to have her other two children by McKay taken from her.

McKay said he was happy a provincial inquest would now be held into Phoenix's case. “People, in general, should love their children. This is a wake-up call to love your child,” said McKay. “I just don't want this to happen to another child. It's just not right.”

P
hoenix Sinclair's legacy would be a massive overhaul of Manitoba's child-welfare system. A public inquiry was held into the tragic case, exposing how the little girl fell through a massive series of manmade cracks. I personally didn't cover the inquiry. To be honest, I couldn't stomach it. I'd covered the initial investigation, the trial and then conducted the jailhouse interviews with the two murderers. It was just too much.

But I did follow the inquiry closely, and was glad to see Commissioner Ted Hughes pull no punches when he released a 900-page report in January 2014. Hughes made 62 recommendations, warning that future tragedies would occur if changes weren't made. He specifically cited the failures of front-line social workers to protect Phoenix.

“I believe that the Child and Family Services workers who testified at this inquiry wanted to do their best for the children and families they served,” Hughes wrote. “I believe that they wanted to protect children. However, their actions and resulting failures so often did not reflect those good intentions.”

One of the biggest recommendations was for the provincial government to abolish the office of the Children's Advocate and replace it with a more powerful independent office with the ability to keep close check on the child-welfare system. Hughes said front-line workers and supervisors knew from the moment Phoenix was born that she required close monitoring given the conditions she was being raised in. Yet he noted CFS got tips or information at least 13 times that Phoenix was
in danger or neglected. And despite having more than 25 CFS workers involved with the family, none had any clue she was missing.

“Deficiencies in the delivery of services to Phoenix did not result from a lack of understanding of policies, procedures and provincial standards, or from confusion about which standards applied. Rather, they resulted from a lack of compliance with existing policies and best practice,” Hughes wrote. “Even when the agency asked the right questions and did an appropriate assessment, it failed to follow through on providing the services that it had identified as necessary.”

The provincial government issued an apology for Phoenix's death hours after the report was released. It was the first time
they acknowledged wrongdoing. “We know now how a little girl became invisible, and we have already implemented changes to prevent other children from disappearing like she did,” Family Services Minister Kerri Irvin-Ross said.

Hughes said the system was on the right track but had “more distance to cover.” “To truly honour Phoenix, we need to provide all of Manitoba's children with a good start to life and offer to the most vulnerable an escape from the cycle of poverty and vulnerability that trapped Phoenix and her family,” wrote Hughes.

THE LOBSTERMAN

T
here's an old saying in legal circles that a person who acts as their own lawyer has a fool for a client. I can vouch for this, having covered numerous cases over the years where self-represented accused turn the courtroom into a three-ring circus. But of all the bizarre situations I've seen play out, absolutely none come close to matching the antics of a former Winnipeg man named Ronald Hickey.

He pretty much held a jury hostage for two long months while pulling stunt after ludicrous stunt. Just when you thought you'd seen it all, something new would come along to top it. It was fascinating to cover, never knowing what was coming next. And it proved that sometimes, fact really is stranger than fiction.

MONDAY DECEMBER 13, 1999

The axe-murderer settled into his seat, staring down a jam-packed courtroom that had come to watch him testify. He felt like a star. Jack Bender, 49, said he was angry about missing a fried chicken dinner at the maximum-security prison in Ontario that had been his home for the last several years while he was serving a life sentence for brutally killing a man. He'd been flown to Winnipeg under RCMP guard for the most unusual purpose: He would be a “character” witness for his good friend, Ronald Hickey, who was on trial for drug trafficking.

“They just grabbed me and told me I was needed as a witness. I didn't even have a chance to change my clothes. I smell,” said Bender.

After swearing on the Bible to tell the truth, Bender told court he didn't know what he could offer to Hickey's case but said he was willing to answer questions as a favour. “I know they're trying to screw you. I'm going to try and help out,” Bender told Hickey. It was quite the spectacle. And perfectly fitting for a trial that had pretty much turned into a gong show. The case was only supposed to last a couple weeks, and the poor jurors selected to hear it had no clue what was in store.

Things got really wacky when Hickey's lawyer fell ill at the start of the trial, and Hickey, a city businessman, chose to act in his own defence. The result had been several confrontations with the Crown and Justice Albert Clearwater over techniques Hickey used to question witnesses. At one point, Hickey claimed to have a broken jaw that required emergency surgery, to which Clearwater responded by telling him to “give it a rest.”

On another occasion, Hickey claimed he was having a heart attack and slumped to the floor of the court. The Crown believed he was faking to delay questioning of a key witness and called an ambulance. Paramedics found nothing wrong with him, and he was ordered to continue by Clearwater. During the trial, Hickey had also accused a sheriff's officer of staring at him with “an evil eye” and threatened to call former Prime Minister Pierre Trudeau to act as his lawyer for a constitutional argument. He never did. And now he had a notorious murderer in on the stand as his character witness.

Hickey, 45, was arrested along with 14 other people during an RCMP sting in 1997. He was accused of selling RCMP informant Margo Redsky—Bender's ex-wife—4.5 kilograms of marijuana at his Winnipeg home in December 1996. Hickey was also charged with pointing a gun at Redsky's head during the transaction. When Hickey's trial began an eternity ago, the Crown told jurors Redsky routinely came in contact with members of the drug underworld as she delivered drugs and collected debts for the Los Brovos motorcycle gang. She also smuggled drugs and other contraband to bikers inside Stony Mountain Institution, the Crown alleged.

Bender, wearing sunglasses and a bandanna, sat calmly in the witness box during nearly two hours of testimony. He began to detail his criminal record but told the jury “it would take a year” to finish. Bender did rattle off several incidents, including murder, cutting a nurse's throat, stabbing “a lot” of prisoners and assaulting prison guards. He referred to himself as one of the most dangerous killers in Canada.

Bender told court he met Hickey while both were serving time at Stony Mountain in the late 1980s. Hickey was being attacked by another inmate until Bender stepped in and saved him. Bender said he collected on the favour by asking Hickey to help Redsky financially. Under cross-examination from the Crown, however, Bender said he never instructed Hickey to sell drugs to Redsky. Bender was supposed to be Hickey's final piece of evidence. But he clearly had more tricks up his sleeve as he instructed jurors they would hear from one more witness—himself.

TUESDAY DECEMBER 14, 1999

His direct examination came in the form of a seemingly never-ending monologue. Ronald Hickey had full control of the courtroom and was clearly relishing his moment in the spotlight. On numerous occasions, Justice Albert Clearwater interrupted Hickey's testimony to scold him for veering off topic and making arguments about evidence heard during his trial.

“I'm going to make my closing argument at the same time now to save time so all these people can go home for Christmas,” said Hickey.

“No you are not, Mr. Hickey,” said Clearwater.

During his full-day of giving evidence, Hickey denied selling drugs or pointing a gun at anyone. Hickey did admit he felt pressured to come up with drugs for Margo Redsky because her husband, Jack Bender, had saved his life while both were in prison together. He said Redsky claimed she had terminal cancer and needed cash to go for treatment in Mexico. Hickey said Redsky wanted him to come up with marijuana so she could take it to Northern Manitoba and re-sell it for a huge profit.

“I didn't want to get involved with this person, but there's no hiding from Jack,” he said. “I knew he was an axe-murderer. I know it was gruesome and over nothing. I knew he was psychotic.”

Hickey said he eventually backed out of the deal but didn't deny a drug transaction may have gone down at his home between Redsky and someone else. However, he said he never provided Redsky with the marijuana and the only drugs he had in his home were about 10 marijuana plants for personal use in his basement.

FRIDAY DECEMBER 17, 1999

Ronald Hickey was in no hurry to finish. And so it was no surprise a closing argument that he promised would only last a couple hours actually couldn't be finished by the end of the day. Hickey spent much of his five hours speaking to jurors by reading directly from the 5,000 pages of transcripts of the trial. On repeated occasions, Queen's Bench Justice Albert Clearwater cautioned him to stop rambling and stay within the evidence. “Mr. Hickey, stop talking for a moment please,” he said during one exchange.

When he began his argument at 9 a.m., Hickey apologized to the 12 jurors for occupying their time for so long, and for some of his courtroom antics, which have been openly criticized by the judge and Crown. He had repeatedly asked for mistrials, adjournments and presented statements to the jury that Clearwater had told them to disregard. “I wanted to keep you wondering what was next, like a good movie,” said Hickey. When it became clear Hickey could not finish his arguments by the end of the day, Clearwater told him he would continue the following Monday at 10 a.m. and must be finished by noon. Clearwater then told the jurors he didn't want them to feel pressured into quickly reaching a verdict because of the upcoming Christmas holidays. He asked if they would like to adjourn the case until January following final arguments. But after a brief adjournment, the foreman said they want to begin as soon as possible.

In summing up his case, Hickey repeatedly made reference to his inability to conduct himself properly as a lawyer. “In my bumbling, I have tried to make the truth clear,” he said.

WEDNESDAY DECEMBER 22, 1999

They weren't buying what Ronald Hickey was selling. And so it took jurors a few hours of deliberations to find Hickey guilty of trafficking marijuana and possessing the proceeds of crime. The weapons charge ended in an acquittal. The length and nature of the trial had taken a major toll on all involved. And that prompted the judge overseeing the case to try and play Santa Claus by granting them a cash bonus for the hardship they endured. In an unusual move, Justice Albert Clearwater ordered that the four-man, eight-woman jury receive $130 each per day for sitting patiently through the nearly three-month trial.

But it appears Scrooge, in the form of provincial legislation, would get in his way. Under provincial legislation, jurors are allowed only $30 per day once they have sat for 10 days. The law allows for a judge to order a $10-a-day increase when there has been unusually lengthy and undue hardship caused by the trial. In his closing remarks, Clearwater acknowledged the existing legislation but said he was making an order to give each juror $100 more per day anyway. “If there's one time I've seen a case that deserves extra compensation, this one is it. Your lives have been tied up for far longer than anyone could have reasonably anticipated,” he told the jurors following the verdict.

Under his order, each juror would collect $3,120 for their efforts—for a total cost to the province of $37,440. However, a provincial government spokesman said Clearwater's generous offer would not be approved because a change in legislation would be required to raise the pay. As a result, each juror would only be allowed to collect $10 more per day, or $40 total. That would amount to $960 per person—with a total cost to the province of $11,520. “He had no authority to grant that amount, and he acknowledged that in his remarks to the jury,” assistant deputy minister Bob Giasson said. “To be honest, this was pretty unusual. But this trial was getting to be one of the lengthier ones we've seen. It was unreal.”

The Hickey trial had attracted an eclectic mix of curious spectators. A constant parade of Hickey supporters and associates was often searching for seats in the public gallery next to off-duty judges, defence lawyers and Crown attorneys who wanted a first-hand look. “This was a travesty, an absolute abuse of the system,” said one veteran lawyer.

Following his conviction, Hickey was taken into custody pending sentencing and a motion he had filed arguing he was the victim of police entrapment. Hickey wished his wife, daughters and several other spectators a Merry Christmas and said “let's rock and roll” as he was led away in handcuffs.

TUESDAY MARCH 14, 2000

He had boasted of being western Canada's greatest marijuana grower. But Ronald Hickey would have to put his green thumb on hold for a while after being sentenced to seven years in prison.

“In short, Mr. Hickey was a teacher,” Justice Albert Clearwater said during a long-delayed sentencing hearing that came following a long-delayed trial. The Crown had sought a 10-year sentence. Hickey asked for three years.

Clearwater said a strong message must be sent given the large number of grow operations being unearthed in Manitoba. “Manitoba appears to be becoming one of the larger producers [among the provinces] of marijuana,” said Clearwater. “It appears we're no longer an importer, we're an exporter.”

As he'd done to the jury, Hickey once again apologized for taking up so much of the court's time. But he wasn't done from making headlines just yet.

WEDNESDAY SEPTEMBER 6, 2000

Ronald Hickey walked into Manitoba's highest court—and was promptly greeted with applause from a group of devoted supporters who had packed the public gallery. Just another day in his seemingly never-ending legal saga.

Hickey was taking one last shot at reducing his prison sentence, arguing it was harsh and excessive. He told the Court of Appeal he was being unfairly punished by Queen's Bench Justice Albert Clearwater because of his unusual antics during his jury trial. “I know I was an annoyance. But this is the kind of sentence given for manslaughters and rapes and all sorts of heinous crimes,” said Hickey, whose movement in the Appeal Court was restricted by shackles around his legs and two sheriff's officers standing guard. “I think the jury would just feel terrible to hear I got seven years.”

He told the Appeal Court that marijuana was a “soft drug,” and his prison sentence didn't stack up against similar offences. Hickey argued the judge failed to consider the fact an undercover RCMP agent was used to gather evidence against him. “The police orchestrated these events. If that agent had not come to me and did what she did, that crime would not have happened,” said Hickey.

Crown attorney Karen Molle said Hickey's sentence was proper considering his two previous drug-related convictions, which landed him a five-year prison sentence in 1990.

TUESDAY OCTOBER 10, 2000

Score one for the self-represented pot grower. Ronald Hickey had won a bid to reduce his sentence as the Manitoba Court of Appeal announced they had knocked two years off his punishment.

Justice Michael Monnin said the original penalty given by Queen's Bench Justice Albert Clearwater was outside the range of sentences given to similar offences around the country. However, the appeal court judges said they found no fault with Clearwater's reasons for sentencing and that Hickey's claim he was targeted because of his behaviour was “without merit.”

WEDNESDAY MARCH 28, 2001

The justice system wasn't quite finished with Ronald Hickey. As usual, the circumstances were anything but routine. Hickey was convicted of his one outstanding criminal charge of causing a disturbance for a stunt he'd pulled during jury selection for his wife's trial. Gail Hickey had also faced drug charges from the same operation that netted Hickey. When lawyers were going through the process of narrowing down a large pool of potential jurors, Hickey had picked up a list containing their names, then tried to flee the courtroom with the document. When sheriff's officers tried to stop him, Hickey resisted.

Queen's Bench Justice Barbara Hamilton rejected Hickey's bid for an absolute discharge or suspended sentence, saying his actions flew in the face of justice and deserve to be punished. Hickey blamed his arrest and conviction on a “personal vendetta” that sheriff's officers had for him, given his history with Manitoba's justice system.