The Legacy of Phoenix Sinclair

The Legacy of Phoenix Sinclair
Achieving the Best

for All Our Children
The Hon. Ted Hughes, O.C., Q.C., LL.D. (Hon), Commissioner

Volume 3 Appendices
December 2013
Phoenix Victoria Hope Sinclair
(2000-2005)
1A8LL CI CCN1LN1S

kLIACL AND ACkNCWLLDGMLN1 ........................................................................... 17
1 LkLCU1IVL SUMMAk .................................................................................... 19
1.1 PCLnlx Anu 1PL CPlLu WLLlA8L S?S1LM ......................................................................... 19
1.2 MlSSLu CC81unl1lLS ......................................................................................................... 21
1.3 PCW ulu 1PlS 18ACLu? PALn? ......................................................................................... 22
1.4 PAS WPA1 WLn1 W8CnC 8LLn llxLu? ................................................................................ 24
1.3 A8C8lClnAL CPlLu8Ln ........................................................................................................... 28
1.6 A SPA8Lu 8LSCnSl8lLl1? ...................................................................................................... 28
1.7 8LvLn1lCn lS 1PL ll8S1 S1L ln 8C1LC1lCn .................................................................... 30
1.8 8LCCCnlZlnC CPlLu8Ln'S 8lCP1S ......................................................................................... 30
1.9 LA8L? ln1L8vLn1lCn lS kL? ................................................................................................... 30
1.10 A81nL8SPlS ........................................................................................................................ 32
1.11 AC1lnC Cn WPA1 WL knCW ................................................................................................. 33
kLCCMMLNDA1ICNS SUMMAk .............................................................................. 37
2 INUIk kCCLSS ........................................................................................... S3
2.1 1PL CCMMlSSlCn'S 1L8MS Cl 8LlL8LnCL Anu MAnuA1L ................................................. 33
2.2 1P8LL PASLS Cl lnCul8? ..................................................................................................... 34
2.2.1 PASL CnL ................................................................................................................ 34
2.2.2 PASL 1WC ............................................................................................................... 34
2.2.3 PASL 1P8LL ............................................................................................................. 34
2.3 1PL Slx 8LC81S CCMMlSSlCnLu Al1L8 PCLnlx'S uLA1P ................................................ 34
2.4 u8CSL Anu nA1u8L Cl u8LlC lnCul8lLS ........................................................................ 39
2.3 ACln1MLn1 Cl CCMMlSSlCn CCunSLL ........................................................................... 61
2.6 8CLL Cl CCMMlSSlCn CCunSLL ........................................................................................... 61
2.7 AuMlnlS18A1lvL MA11L8S .................................................................................................... 62
2.7.1 AuMlnlS18A1lvL S1All ............................................................................................ 62
2.7.2 CCnlluLn1lALl1? ...................................................................................................... 63
2.7.3 uCCuMLn1S MAnACLMLn1 .................................................................................... 63
2.7.4 WL8Sl1L ..................................................................................................................... 64
2.7.3 ClllCL SACL Anu PLA8lnC 8CCM ......................................................................... 64
2.7.6 MLulA lAClLl1lLS ...................................................................................................... 64
2.8 8uLLS Cl 8CCLuu8L ............................................................................................................ 63
VCLUML 1
2.9 S1AnulnC Anu lunulnC ....................................................................................................... 66
2.9.1 S1AnulnC .................................................................................................................. 66
2.9.2 lnl1lAL 8uLlnC Cn S1AnulnC - !unL 2011 ............................................................. 66
2.9.3 ALlCA1lCnS 8LCLlvLu Al1L8 lnl1lAL 8uLlnC ...................................................... 67
2.9.4 Au1PC8l1lLS/AnC8 SLl11lnC Cl SPA8Lu C8An1 .................................................. 67
2.9.3 lunulnC ................................................................................................................... 68
2.10 lnvLS1lCA1lCn 8CCLuu8LS ................................................................................................ 68
2.10.1 uCCuMLn1 8CuuC1lCn ........................................................................................ 68
2.10.2 CPlLu WLLlA8L 8LCC8uS ......................................................................................... 68
2.10.3 8CM ulSCLCSu8L .................................................................................................... 69
2.10.4 8LuAC1lCn Cl uCCuMLn1S .................................................................................... 69
2.10.3 CCMMlSSlCn lnvLS1lCA1C8S .................................................................................. 70
2.10.6 Wl1nLSS ln1L8vlLWS ............................................................................................... 70
2.10.7 LAW?L8S lC8 lnulvluuAL Wl1nLSSLS ..................................................................... 71
2.11 CCunSLL MLL1lnCS Anu S1A1LMLn1S 8? 1PL CCMMlSSlCn ............................................. 71
2.12 S1A1Lu CASLS Anu 8CCLuu8AL MC1lCnS ......................................................................... 72
2.12.1 CLnL8AL .................................................................................................................... 72
2.12.2 S1A1Lu CASL nC.1: A CPALLLnCL 1C 1PL CCMMlSSlCn'S vALlul1? ...................... 72
2.12.3 S1A1Lu CASL nC.2: MC1lCn 1C 8CuuCL CCMMlSSlCn 18AnSC8l1S ................ 74
2.12.4 u8LlCA1lCn 8An MC1lCnS - !uL? 2012 ................................................................ 76
2.12.3 u8LlCA1lCn 8An MC1lCn - MA8CP 2013 ............................................................. 78
2.13 CCnuuC1 Cl u8LlC PLA8lnCS ............................................................................................. 78
2.14 nC1lCLS Cl ALLLCLu MlSCCnuuC1 ...................................................................................... 79
2.13 Lx1LnSlCnS Cl 1PL CCMMlSSlCn'S uLAuLlnL ..................................................................... 80
2.16 8LC81S 8LA8Lu lC8 1PL CCMMlSSlCn .......................................................................... 80
3 1nL CnILD WLLIAkL SS1LM IN MANI1C8A ................................................... 83
3.1 1PL S1A1u1C8? MAnuA1L .................................................................................................... 83
3.1.1 CululnC 8lnClLLS ................................................................................................. 83
3.1.2 vCLun1A8? SL8vlCLS ............................................................................................... 84
3.1.3 lnvCLun1A8? SL8vlCLS ............................................................................................ 84
3.1.4 WPA1 lS A8uSL"? .................................................................................................... 84
3.1.3 WPA1 uCLS l1 MLAn 1C 8L ln nLLu Cl 8C1LC1lCn"? ....................................... 84
3.2 ACCCun1A8lLl1? 8LLA1lCnSPlS .......................................................................................... 86
3.2.1 2000 - 2003 ................................................................................................................ 87
3.2.2 uLvCLu1lCn ............................................................................................................. 87
3.2.3 2004 - 8LSLn1 .......................................................................................................... 91
3.3 WlnnlLC CPlLu Anu lAMlL? SL8vlCLS, 2000 - 2003 ........................................................... 91
3.3.1 CPAnCL l8CM A8LA-8ASLu 1C 8CC8AM-8ASLu SL8vlCLS ................................. 92
3.3.2 ln1AkL, Al1L8 PCu8S, Anu A8uSL SL8vlCLS, 2000 -2003 ...................................... 92
3.3.3 8LC8CAnlZA1lCn, 2003 ............................................................................................ 94
3.3.4 S1All Anu MAnACLMLn1 A1 WlnnlLC ClS, 2000 - 2003 ..................................... 93
3.3.3 S18uC1u8L Cl WlnnlLC ClS Al1L8 uLvCLu1lCn ................................................ 97
3.4 CPlLu Anu lAMlL? SL8vlCLS lnlC8MA1lCn S?S1LM (ClSlS) ............................................... 97
4 CnILD WLLIAkL kAC1ICL: A IkAMLWCkk ICk ANALSIS ........................... 101
4.1 u8. ALLxAnu8A W8lCP1: 8LS1 8AC1lCLS .......................................................................... 101
4.1.1 CPlLu WLLlA8L uLllnLu ........................................................................................ 101
4.1.2 8LS1 8AC1lCLS uSL LvluLnCL 1C 8CuuCL 8L11L8 Cu1CCMLS ........................ 101
4.1.3 An LCCLCClCAL A8CACP 1C CPlLu WLLlA8L 8AC1lCL ................................... 103
4.1.4 8LvLn1lCn 8LCul8LS A LCnCL8 vlLW ................................................................ 103
4.1.3 WLLL-8LlnC MLAnS MC8L 1PAn SAlL1? .............................................................. 106
4.1.6 CPlLu8Ln A8L A CCMMunl1? 8LSCnSl8lLl1? ..................................................... 106
4.1.7 A8C8lClnAL CPlLu WLLlA8L lACLS unlCuL CPALLLnCLS ................................... 106
4.2 u8. nlCC 18CCML: lMMLulA1L SAlL1? Anu LCnC-1L8M WLLL-8LlnC ............................. 107

nASL CNL - 1nL S1Ck CI nCLNIk SINCLAIk ....................................................... 111
S 1nL S1Ck CI nCLNIk'S LIIL ...................................................................... 11S
3.1 PCLnlx lS 8C8n, A8lL 23, 2000 ........................................................................................ 113
3.2 kLMA1CP'S 8LCnAnC? ....................................................................................................... 117
3.3 PCLnlx lS A8LPLnuLu A1 1PL PCSl1AL ...................................................................... 117
3.3.1 1
S1
8LlL88AL 1C CPlLu Anu lAMlL? SL8vlCLS, A8lL 24, 2000 ............................ 117
3.3.2 A 8C1LC1lCn llLL lS CLnLu ............................................................................... 118
3.3.3 A CASL LAn lS C8LA1Lu ......................................................................................... 123
3.3.4 1LMC8A8? CuA8ulAnSPl lC8 PCLnlx, MA? 3, 2000 ..................................... 126
3.3.3 A8Ln1S AC8LL 1C 18AnSl1lCn LAn ................................................................... 129
3.4 PCLnlx 8L1u8nS 1C PL8 lAMlL?, SL1LM8L8 3, 2000 .................................................... 130
3.4.1 A8Ln1S AC8LL 1C 1L8MS lC8 8L1u8n Cl PCLnlx .......................................... 130
3.4.2 S?CPlA18lS1 ASSLSSLS kLMA1CP ......................................................................... 131
3.4.3 ACLnC? lAlLS 1C ASSLSSS A8Ln1AL CAACl1? .................................................... 134
3.4.4 CA8lnC lC8 PCLnlx Al1L8 PL8 8L1u8n ............................................................. 133
3.4.3 WC8kL8 SlCnALS A WA8nlnC ............................................................................... 136
3.4.6 WL8L 1PL SL8vlCL AC8LLMLn1 1L8MS 8LlnC ML1? ........................................... 137
3.4.7 nLW WC8kL8 SL1S 8lC8l1lLS ............................................................................... 138
3.4.8 ACLnC? lAlLS 1C lCLLCW 1L8MS Cl l1S AC8LLMLn1 ......................................... 141
3.4.9 SuC81 WC8kL8 CCuLu PAvL 8LLn uSLu 1C AuvAn1ACL .............................. 142
3.4.10 PCLnlx lS 1AkLn 1C A MLulCAL CLlnlC ............................................................... 143
VCLUML 2
3.3 PCLnlx'S SlS1L8 lS 8C8n, A8lL 29, 2001 ......................................................................... 144
3.3.1 2
nu
8LlL88AL: nLW 8A8? ln 1PL lAMlL? ............................................................... 144
3.3.2 WPC WAS CA8lnC lC8 PCLnlx? ......................................................................... 146
3.6 nLW CCnCL8nS lC8 PCLnlx AS PL8 A8Ln1S SLA8A1L ............................................... 147
3.6.1 3
8u
8LlL88AL: 8LC81S Cl uCMLS1lC ASSAuL1, !unL 18, 2001 .......................... 147
3.6.2 4
1P
8LlL88AL: CCnCL8nS lC8 PCLnlx Anu PL8 8A8? SlS1L8 ........................... 148
3.6.3 3
1P
8LlL88AL: kLMA1CP A8AnuCnS CPlLu8Ln, !uL? 3, 2001 .............................. 149
3.6.4 WA8nlnCS CC unPLLuLu ..................................................................................... 134
3.7 PCLnlx'S 8A8? SlS1L8 ulLS, !uL? 13, 2001 ........................................................................ 134
3.7.1 6
1P
8LlL88AL: lAMlL? nLLuS SuC81 Al1L8 8A8?'S uLA1P .............................. 134
3.7.2 7
1P
8LlL88AL: CLlCL A8L CALLLu 1C 1PL lunL8AL CPALL ............................... 139
3.7.3 1PL lAMlL?, Al1L8 8A8?'S uLA1P ......................................................................... 161
3.8 llLLS A8L CLnLu, CLCSLu, 8C8LLMS A8L un8LSCLvLu ................................................ 162
3.8.1 CnCClnC 8C8LLMS A8L luLn1lllLu .................................................................... 162
3.8.2 llLL lS SLLn AS LCW 8lSk" ..................................................................................... 163
3.8.3 CASL LAn lS A8AnuCnLu, SlnCLAl8 llLL lS CLCSLu ............................................ 166
3.9 PCLnlx lS 18LA1Lu A1 PCSl1AL, lL88uA8? 26, 2003 ..................................................... 171
3.9.1 8
1P
8LlL88AL: PCLnlx ln 1PL LML8CLnC? WA8u .............................................. 171
3.9.2 PCLnlx S1A?S Wl1P PL8 CA8LClvL8S ................................................................. 172
3.9.3 SlnCLAl8 llLL lS 18AnSlL88Lu 1C nC81PWLS1 ln1AkL unl1 .............................. 173
3.10 PCLnlx lS A8LPLnuLu ACAln, !unL 21, 2003 .............................................................. 173
3.10.1 9
1P
8LlL88AL: u8lnklnC A81? A1 PCLnlx'S PCML ........................................... 173
3.10.2 kLMA1CP 8L-Ln1L8S 1PL lC1u8L ........................................................................ 181
3.10.3 1PL ACLnC? 8LA8LS lC8 CuA8ulAnSPl C8uL8 ............................................. 181
3.10.4 SlnCLAl8 SA?S PL lS un8LAu? 1C A8Ln1 PCLnlx ............................................. 187
3.11 l8lLnuS' PCML lS A LACL Cl SAlL1?" ............................................................................. 188
3.11.1 A8Ln1S CCnSLn1 1C 1LMC8A8? CuA8ulAnSPl lC8 PCLnlx ...................... 188
3.11.2 kLMA1CP ASkS A8Cu1 LAn lC8 PCLnlx ........................................................... 193
3.11.3 LAn lC8 PCLnlx CPAnCLS A88u1L? ............................................................... 194
3.12 PCLnlx lS 8L1u8nLu 1C SlnCLAl8 CC1C8L8 3, 2003 ....................................................... 196
3.12.1 PCLnlx MCvLS PCML, llLL lS CLCSLu ................................................................ 192
3.13 PCLnlx, kLMA1CP, Anu MCkA?, LA8L? 2004 ................................................................... 199
3.13.1 10
1P
8LlL88AL: 8LC81 Cl kLMA1CP'S u8lnklnC Anu u8uCS ........................... 199
3.13.2 llLLS A8L CLnLu Anu CLCSLu: WPL8L WAS PCLnlx? ..................................... 200
3.13.3 8lvA1L A88AnCLMLn1 LLAvLS PCLnlx vuLnL8A8LL ...................................... 202
3.13.4 llLL CLCSLu ACAln, PCLnlx lS A1 8lSk, lL88uA8? 13, 2004 .............................. 207
3.14 kLMA1CP 1AkLS PCLnlx 1C LlvL Wl1P PL8, LA8L? 2004 ................................................. 212
3.14.1 PCLnlx lS CA8Lu lC8 8? l8lLnuS ........................................................................ 212
3.14.2 kLMA1CP lCkS u PCLnlx .................................................................................. 212
3.13 LlA ASkS: WPL8L lS PCLnlx LlvlnC? ................................................................................. 213
3.13.1 11
1P
8LlL88AL: LlA PAS CCnlLlC1lnC lnlC8MA1lCn ........................................... 213
3.13.2 ACLnC? CLnS SlnCLAl8 8C1LC1lCn llLL, MA? 11, 2004 ................................... 217
3.13.3 LlA WC8kL8 u8SuLS CCnCL8nS .......................................................................... 223
3.16 ACLnC? LLA8nS 1PA1 PCLnlx lS Wl1P kLMA1CP ............................................................ 226
3.16.1 PCLnlx lS AuuLu 1C MCkA?'S LlA 8uuCL1 ......................................................... 227
3.16.2 kLMA1CP llLL lS CLnLu A1 ln1AkL ..................................................................... 227
3.17 kLMA1CP llLL lS CLCSLu: nC AA8Ln1 CCnCL8nS" ...................................................... 233
3.17.1 SuL8vlSC8 lAlLS 1C LnSu8L 8LS1 8AC1lCL ....................................................... 234
3.17.2 MCkA? lS knCWn AS A 1P8LA1 1C CPlLu8Ln" ................................................... 233
3.17.3 lnlC8MA1lCn A8Cu1 MCkA? WCuLu PAvL kL1 llLL CLn .............................. 236
3.18 kLMA1CP lS 8LCnAn1 A lCu81P 1lML, S8lnC 2004 ...................................................... 239
3.19 PCLnlx lS 8LClS1L8Lu lC8 nu8SL8? SCPCCL, lALL 2004 ............................................... 242
3.20 kLMA1CP'S nLW 8A8? lS 8C8n, nCvLM8L8 30, 2004 ....................................................... 242
3.20.1 12
1P
8LlL88AL: PCSl1AL ALL81S ACLnC? Cl nLW 8A8? ..................................... 242
3.20.2 CCnluSlCn CvL8 ACCLSS 1C MCkA?'S PlS1C8? ................................................... 243
3.20.3 ln1AkL 8L1u8nS llLL lC8 lu81PL8 lnvLS1lCA1lCn ............................................ 246
3.20.4 ACLnC? 8LLlLS Cn u8LlC PLAL1P nu8SL lC8 lAMlL? CCn1AC1 ....................... 231
3.21 ACLnC? CLCSLS llLL: nC knCWn 8lSk" ............................................................................ 233
3.21.1 nC 8lC8 CCn1AC1 CPLCk lS uCnL Cn MCkA? .................................................... 233
3.21.2 nC CnL SLLS PCLnlx ............................................................................................ 234
3.21.3 llLL CLCSlnC lAlLS 1C 8C1LC1 PCLnlx ............................................................. 233
3.22 PCLnlx'S PCML LllL, 1P8CuCP 1PL L?LS Cl C1PL8S ..................................................... 237
3.22.1 kLMA1CP Anu MCkA? AS A8Ln1S 1C PCLnlx, 8LlC8L Anu Al1L8 8A8? ....... 237
3.22.2 l8lLnuS CALL 1PL ACLnC? Wl1P CCnCL8nS lC8 PCLnlx ................................. 262
3.23 l8lLnuS 8LLA? CCnCL8nS lC8 PCLnlx, S8lnC 2003 ..................................................... 266
3.23.1 kLMA1CP ln1LnuS 1C LLAvL WlnnlLC ............................................................... 266
3.23.2 A vL8? 88CkLn ?CunC WCMAn" ....................................................................... 268
3.23.3 13
1P
8LlL88AL: A lCS1L8 MC1PL8 CALLS ClS, MA8CP 3, 2003 ............................ 269
3.23.4 8LC81 CMl1S lMC81An1 8LCLn1 uLvLLCMLn1S ........................................... 273
3.23.3 WPA1 uCLS A8uSL" MLAn? ................................................................................. 273
3.23.6 WC8kL8 MAkLS LllC81 1C CCn1AC1 lAMlL? ...................................................... 273
3.23.7 nLx1 WC8kL8 lAlLS 1C CAln Ln18? 1C kLMA1CP'S AA81MLn1 ....................... 276
3.23.8 WC8kL8 Anu SuL8vlSC8 CCnlL8 A8Cu1 CLCSlnC 1PL llLL ............................. 281
3.24 kLMA1CP llLL lS CLCSLu lC8 1PL LAS1 1lML ..................................................................... 282
3.24.1 WC8kL8S llnu nC 8C1LC1lCn CCnCL8nS ......................................................... 282
3.24.2 MAnuA1L Cl 1PL C8u Anu APu unl1S LxLAlnLu .............................................. 283
3.24.3 WC8kL8S nLLu lACL-1C-lACL CCn1AC1 Wl1P 1PL CPlLu ................................... 286
3.24.4 ACLnC? MlSSLS l1S LAS1 CC81unl1? 1C ln1L8vLnL lC8 PCLnlx ................. 288
3.23 PCLnlx MCvLS 1C llSPL8 8lvL8 ....................................................................................... 289
3.23.1 CCnCL8nS L8SlS1 Al1L8 1PL MA8CP 2003 lnvLS1lCA1lCn ............................... 289
3.23.2 lAMlL?'S MCvL 1C llSPL8 8lvL8 8LCCMLS knCWn ............................................ 291
3.23.3 1PL lAMlL? MCvL ln1C 1PLl8 nLW PCML ........................................................... 291
3.23.4 MCkA?'S SCnS !Cln 1PL lAMlL? ............................................................................ 292
3.23.3 1PL lAMlL? ln llSPL8 8lvL8 ................................................................................... 293
3.23.6 MCkA?'S SCnS Wl1nLSS PCLnlx'S A8uSL ........................................................... 293
3.26 PCLnlx lS Mu8uL8Lu ........................................................................................................ 293
3.26.1 MCkA?'S SCn Wl1nLSSLS PCLnlx'S uLA1P ......................................................... 293
3.26.2 kLMA1CP Anu MCkA? 8LMCvL PCLnlx'S 8Cu? l8CM 1PL PCML ................... 296
3.26.3 1PL lAMlL?, Al1L8 PCLnlx'S uLA1P ................................................................... 296
3.26.4 uCL #3 PLA8S Cl PCLnlx'S A8uSL ...................................................................... 297
3.26.3 ln1L818l8AL ClS lnvLS1lCA1LS SCnS' Sl1uA1lCn, !uL? 2003 .............................. 298
3.26.6 nC CnL knCWS PCLnlx lS MlSSlnC .................................................................... 299
6 nCLNIk'S DLA1n IS DISCCVLkLD ................................................................ 300
6.1 An Aun1'S lnCul8lLS CC unPLLuLu, AuCuS1 2003 ......................................................... 300
6.1.1 PCLnlx'S Aun1 MAkLS lnCul8lLS ....................................................................... 300
6.1.2 WC8kL8S SLA8CP ClSlS lC8 PCLnlx ln AuCuS1 2003 ....................................... 301
6.2 kLMA1CP Anu MCkA? 8L1u8n 1C WlnnlLC .................................................................... 306
6.2.1 lAMlL? MCvLS 8ACk 1C MCCLL S18LL1 Wl1PCu1 PCLnlx ............................... 306
6.2.2 kLMA1CP'S lll1P 8LCnAnC? ............................................................................... 307
6.3 MCkA?'S SCn ulSCLCSLS PCLnlx'S uLA1P ........................................................................ 307
6.4 lClS 8LCLlvLS 8LC81 Cl PCLnlx'S Mu8uL8 ................................................................... 308
6.3 8CM lnvLS1lCA1LS 1PL ulSALA8AnCL Cl PCLnlx SlnCLAl8 ..................................... 309
6.6 kLMA1CP Anu MCkA? A8L A88LS1Lu ................................................................................. 310
6.7 SlnCLAl8 LCCkS lC8 PCLnlx ln MA8CP 2006 .................................................................. 312
6.8 kLMA1CP Anu MCkA? A8L CCnvlC1Lu Cl PCLnlx'S Mu8uL8 ....................................... 313
7 nCW DID 1nIS 1kAGLD nALN? ............................................................... 313
nASL 1WC - 1nL CnILD WLLIAkL SS1LM AND I1S kLSCNSL ............................... 339
8 CnANGLS ICk CnILDkLN: GCVLkNMLN1'S 2006 kLSCNSL 1C kLVILWS ..... 341
9 DLVCLU1ICN ................................................................................................ 344
9.1 uLvCLu1lCn ln 1PL CCn1Lx1 Cl 1PL lnCul8? .................................................................. 344
9.2 Cl8CLL Cl CA8L: 18Aul1lCnAL vALuLS ln CPlLu WLLlA8L 8AC1lCL ................................ 343
9.3 S1AnulnC CCMMl11LL 8CMC1LS CC-C8ulnA1lCn ......................................................... 348
9.4 8LCCMMLnuA1lCnS ............................................................................................................ 349
10 DIIILkLN1IAL kLSCNSL: A NLW MCDLL CI kAC1ICL ................................ 3S0
10.1 nLCLLC1 Anu A8uSL CALL lC8 ulllL8Ln1 8LSCnSLS ...................................................... 330
10.2 1WC A8CCPLS 1C CPlLu WLLlA8L SL8vlCLS .................................................................. 331
10.3 ulllL8Ln1lAL 8LSCnSL A8CACP 8LCul8LS SL8vlCLS .................................................. 332
10.4 lMLLMLn1A1lCn Cl ulllL8Ln1lAL 8LSCnSL ln MAnl1C8A .......................................... 333
10.3 ulllL8Ln1lAL 8LSCnSL A1 1PL CLnL8AL Au1PC8l1? ...................................................... 333
10.3.1 1PL SuM Sul1L Cl 1CCLS ....................................................................................... 333
10.6 ulllL8Ln1lAL 8LSCnSL A1 WlnnlLC CPlLu Anu lAMlL? SL8vlCLS ............................... 337
10.7 ulllL8Ln1lAL 8LSCnSL A1 1PL SCu1PL8n Au1PC8l1? ................................................... 362
10.8 ulllL8Ln1lAL 8LSCnSL A1 AnC8 ....................................................................................... 363
10.9 SuM Anu CuL1u8AL 8lAS ..................................................................................................... 364
10.10 1PL 8CLL Cl CCMMunl1? ACLnClLS .................................................................................. 363
10.11 Auu8LSSlnC CP8CnlC nLCLLC1 .......................................................................................... 366
10.12 WC8kL8S' CCMMLn1S Cn ulllL8Ln1lAL 8LSCnSL ......................................................... 366
10.13 CPALLLnCLS 1C 8ulLulnC 18uS1lnC 8LLA1lCnSPlS ........................................................ 366
10.14 WPC SPCuLu uLLlvL8 8LvLn1lCn SL8vlCLS ................................................................... 367
10.13 8LCCMMLnuA1lCnS ............................................................................................................ 370
11 S1ANDAkDS .................................................................................................. 373
11.1 CPAnCLS 1PA1 lCLLCWLu 1PL 2006 8LC81S .................................................................. 374
11.1.1 1PL uLA81MLn1 ................................................................................................... 374
11.1.2 1PL Au1PC8l1lLS .................................................................................................... 374
11.2 1PL Cu88Ln1 Sl1uA1lCn ..................................................................................................... 373
12 WCkkLCAD AND I1S IMAC1 CN SLkVICLS .................................................. 37S
12.1 8LCCMMLnuA1lCnS ............................................................................................................ 379
13 UALI1 ASSUkANCL AND SULkVISICN ...................................................... 379
13.1 SuL8vlSlCn lS kL? .............................................................................................................. 379
13.2 8LCC8u kLLlnC .................................................................................................................. 380
13.3 1PL Auul1C8 CLnL8AL'S 2006 8LvlLW ............................................................................... 381
13.4 1PL Cu88Ln1 Sl1uA1lCn ..................................................................................................... 382
13.3 8LCCMMLnuA1lCnS ............................................................................................................ 383
14 INICkMA1ICN SS1LMS ............................................................................... 38S
14.1 LlMl1A1lCnS ......................................................................................................................... 383
14.1.1 CLu 1LCPnCLCC? ................................................................................................... 386
14.1.2 CCnnLC1lvl1? ......................................................................................................... 386
14.1.3 lnCCMLL1L uA1A .................................................................................................. 386
14.1.4 CAS ln 18ACklnC Cl CPlLu CCn1AC1S ................................................................ 387
14.1.3 Cu1 Cl uA1L Anu uuLlCA1L uA1A ...................................................................... 387
14.2 8C8lL1A8? ln1L8LS1 ln lnlC8MA1lCn ........................................................................... 387
14.3 A MCuL8n lnlC8MA1lCn S?S1LM lS LSSLn1lAL ................................................................ 388
14.4 8LCCMMLnuA1lCnS ............................................................................................................ 388
1S IUNDING ...................................................................................................... 389
13.1 CPALLLnCLS .......................................................................................................................... 389
13.2 CPAnCLS 1C 1PL lunulnC MCuLL ..................................................................................... 391
13.3 CC8L lunulnC ..................................................................................................................... 393
13.4 lAMlL? LnPAnCLMLn1 lunulnC ........................................................................................ 393
13.3 8LCCMMLnuA1lCnS ............................................................................................................ 396
16 LDUCA1ICN AND 1kANING CI CnILD WLLIAkL WCkkLkS ........................... 396
16.1 LuuCA1lCn ........................................................................................................................... 396
16.2 18AnlnC ................................................................................................................................ 399
16.2.1 18AlnlnC A1 1PL CLnL8AL Au1PC8l1? ................................................................. 400
16.2.2 18AlnlnC A1 1PL SCu1PL8n Au1PC8l1? .............................................................. 402
16.2.3 18AlnlnC A1 AnC8 .................................................................................................. 402
16.3 MC8L WC8k lS S1lLL nLLuLu .............................................................................................. 402
16.4 8LCCMMLnuA1lCnS ............................................................................................................ 403
17 SnAkING INVLS1IGA1IVL kLCk1S WI1n WCkkLkS ..................................... 404
17.1 8LCCMMLnuA1lCnS ............................................................................................................ 404
18 kLGIS1kA1ICN CI SCCIAL WCkkLkS ............................................................ 404
18.1 MAnl1C8A AWAl1S 8LCuLA1lCn ........................................................................................ 404
18.2 LxlS1lnC 8LClS18A1lCn 8LClML lS vCLun1A8? ................................................................. 410
18.3 vA8?lnC vlLWS Cn MAnuA1C8? 8LlClS18A1lCn .............................................................. 410
18.4 MAnuA1C8? 8LClS18A1lCn LnSu8LS ACCCun1A8lLl1? ................................................... 411
18.3 8LCCMMLnuA1lCnS ............................................................................................................ 412
19 SUCk1ING 1nL 1kANSI1ICN 1C ADUL1nCCD ........................................... 412
19.1 8LCCMMLnuA1lCnS ............................................................................................................ 413
20 CnILDkLN'S ADVCCA1L ................................................................................ 416
20.1 Cu88Ln1 8CLL Cl 1PL ClllCL ............................................................................................. 416
20.2 CPlLu uLA1P 8LvlLWS ......................................................................................................... 417
20.3 lnuLLnuLnCL ..................................................................................................................... 418
20.4 SCCL Cl 1PL MAnuA1L ...................................................................................................... 419
20.3 LLClSLA1lvL CPAnCL lS 8LCul8Lu ...................................................................................... 419
20.3.1 lnuLLnuLnCL, LxAnSlCn Cl MAnuA1L, Anu nAML CPAnCL ......................... 419
20.3.2 SLClAL 8LC81S .................................................................................................... 420
20.3.3 C8l1lCAL ln!u8? 8LC81S ....................................................................................... 421
20.3.4 S1AnulnC CCMMl11LL Cn CPlLu8Ln Anu ?Cu1P ............................................... 421
20.3.3 ACn1MLn1 Cl 1PL 8L8LSLn1A1lvL ................................................................ 422
20.6 8LCCMMLnuA1lCnS ............................................................................................................ 423
21 nAS WnA1 WLN1 WkCNG 8LLN IIkLD? ....................................................... 427
21.1 1PL 8LSCnSL Cl AnC8 ....................................................................................................... 428
21.2 8LSCnSL Cl WlnnlLC CPlLu Anu lAMlL? SL8vlCLS ....................................................... 431
21.3 lMAC1 Cl 18AnlnC Cn SL8vlCLS ....................................................................................... 432
21.4 lMAC1 Cl CPAnCLS 8LLA1lnC 1C S1AnuA8uS ................................................................. 433
21.3 SC, PAS WPA1 WLn1 W8CnC 8LLn llxLu? ........................................................................ 434
nASL 1nkLL - 1nL CCMMUNI1: I1S NLLDS AND kLSCNSI8ILI1LS,
kC1LC1ING AND kCMC1ING CnILDkLN AND IAMILILS ....................................... 44S
22 WnA1 8kINGS IAMILILS 1C 1nL CnILD WLLIAkL SS1LM? .......................... 446
22.1 PCW MAn? CPlLu8Ln? ........................................................................................................ 446
22.2 PCW MAn? A8C8lClnAL CPlLu8Ln? ................................................................................... 447
22.3 WPA1 ACCCun1S lC8 SuCP CvL8-8L8LSLn1A1lCn? ...................................................... 448
22.4 nLCLLC1 CAn 8L MC8L SL8lCuS 1PAn A8uSL ................................................................... 430
22.3 CCMLLx lAC1C8S LLAu 1C vuLnL8A8lLl1? lC8 lAMlLlLS ............................................... 431
22.3.1 CvL81? Anu LCCnCMlC ulSAuvAn1ACL ............................................................ 431
22.3.2 PCuSlnC Anu PCMLLLSSnLSS ............................................................................... 434
22.3.3 Su8S1AnCL A8uSL .................................................................................................. 433
22.3.4 SCClAL LxCLuSlCn Anu lSCLA1lCn ........................................................................ 436
22.6 8LCCMMLnuA1lCnS ............................................................................................................ 436
23 kC1LC1ICN 8LGINS WI1n kLVLN1ICN: A U8LIC nLAL1n AkCACn ...... 4S7
23.1 nLW lCCuS Cn 8LvLn1lCn lS nLLuLu ............................................................................. 437
23.2 1PL SPll1 1C LA8LlL8 ln1L8vLn1lCn ................................................................................. 438
23.3 unlvL8SALL? AvAlLA8LL ln1L8vLn1lCnS ........................................................................... 439
23.4 1A8CL1Lu ln1L8vLn1lCnS .................................................................................................. 460
24 kLVLN1ICN 8ASLD CN CnILDkLN'S kIGn1S ................................................ 460
24.1 ln1L8nA1lCnAL 8LCCCnl1lCn Cl CPlLu8Ln'S 8lCP1S ...................................................... 460
24.2 PLAL1P? CPlLu MAnl1C8A: A CCLLA8C8A1lCn S18A1LC? ................................................ 462
24.3 8ulLulnC Cn 1PL PLAL1P? CPlLu MAnl1C8A S18A1LC? ................................................... 463
24.4 8LCCMMLnuA1lCnS ............................................................................................................ 463
2S 8UILDING CCMMUNI1 CAACI1 ................................................................ 46S
23.1 CCMMunl1?-8ASLu C8CAnlZA1lCnS ................................................................................. 466
23.1.1 Anu8LWS S18LL1 lAMlL? CLn18L ......................................................................... 467
23.1.2 MA MAWl Wl CPl l1A1A CLn18L ............................................................................ 467
23.1.3 WCLSLLL? lAMlL? LACL ........................................................................................ 468
23.1.4 nA1lvL WCMLn'S 18AnSl1lCn CLn18L ................................................................. 469
23.1.3 kA nl kAnlCPlPk ..................................................................................................... 470
23.1.6 LACLL u88An 18AnSl1lCn CLn18L ........................................................................ 471
23.1.7 MAnluCC Cl Mllnl CCnAAn .................................................................................. 473
23.2 PCW CCMMunl1?-8ASLu C8CAnlZA1lCnS SuCCLLu ........................................................ 473
23.2.1 8ulLulnC 18uS1 1C SL8vL lAMlLlLS ...................................................................... 473
23.2.2 uLCLlnlnC 1PL Au1PC8l1? 1C A8LPLnu CPlLu8Ln ......................................... 473
23.2.3 llnulnC S1All Anu vCLun1LL8S ln 1PL CCMMunl1? ........................................ 473
23.2.4 8LLA1lCnSPl 8ulLulnC ......................................................................................... 476
23.3 CCMMunl1? C8CAnlZA1lCnS WC8klnC Wl1P 1PL CPlLu WLLlA8L S?S1LM .................. 476
23.4 CPALLLnCLS lAClnC CCMMunl1?-8ASLu C8CAnlZA1lCnS .............................................. 478
23.4.1 CCnlluLn1lALl1? .................................................................................................... 478
23.4.2 CCC8ulnA1lCn ....................................................................................................... 479
23.4.3 lunulnC ................................................................................................................. 479
23.3 8LCCMMLnuA1lCnS ............................................................................................................ 479
26 IMCk1ANCL CI LAkL CnILDnCCD IN1LkVLN1ICN .................................... 481
26.1 1PL 8LS1 lnvLS1MLn1 lS MAuL LA8L? ................................................................................ 481
26.2 PuMAn 88Aln uLvLLCMLn1 ............................................................................................. 481
26.3 SuC81lnC ALL CPlLu8Ln 1C 8LACP 1PL MCS1 vuLnL8A8LL ........................................ 482
26.4 1PL CPALLLnCL Cl LLAuL8SPl .......................................................................................... 483
26.3 ln1LC8A1Lu CLn18LS lC8 LA8L? CPlLuPCCu 8CC8AMS ................................................ 486
26.6 LA8L? CPlLuPCCu LuuCA1lCn A?S PlCP 8L1u8nS ......................................................... 489
26.7 A8C8lClnAL Cu88lCuLuM ................................................................................................... 490
26.8 8LCCMMLnuA1lCnS ............................................................................................................ 491
27 AC1ING CN WnA1 WL kNCW ....................................................................... 493
27.1 CCnCLuSlCn ......................................................................................................................... 496

ALNDICLS ............................................................................................................. S03
ALnulx 1. C8uL8 ln CCunClL 89/2011 - MA8 23, 2011 ................................................................ 303
ALnulx 2. CCMMlSSlCn CCunSLL Anu S1All .............................................................................. 307
ALnulx 3. AMLnuLu 8uLLS Cl 8CCLuu8L ................................................................................. 309
VCLUML 3
ALnulx 4. CCMMlSSlCnL8'S 8uLlnC Cn ALlCA1lCnS lC8 S1AnulnC - !unL 29, 2011 .......... 321
ALnulx 3. CCunSLL lC8 A81lLS, Wl1nLSSLS, Anu C1PL8S ....................................................... 331
ALnulx 6. CCMMlSSlCnL8'S 8uLlnC Cn CCnlLlC1 Cl ln1L8LS1 lSSuL - MA8CP 19, 2013 ........ 333
ALnulx 7. 8CuuC1lCn C8uL8, !C?AL, C.!.C.8. - uLCLM8L8 2, 2011 ......................................... 389
ALnulx 8. 8CuuC1lCn C8uL8, !C?AL, C.!.C.8. - !unL 22, 2012 ................................................. 629
ALnulx 9. CCMMlSSlCnL8'S 8uLlnC Cn 8LuAC1lCnS - uLC 2, 2011 .......................................... 633
ALnulx 10. uLClSlCn 8L S1A1Lu CASL nC. 1, l8LLuMAn, !.A. - lL88uA8? 16, 2012 .................. 643
ALnulx 11. CCMMlSSlCnL8'S uLClSlCn Cn MC1lCn lC8 18AnSC8l1S - AuCuS1 1, 2012 ....... 681
ALnulx 12. C8uL8 8L S1A1Lu CASL nC. 2, MCnnln, !.A. - SL1 7, 2012 ..................................... 703
ALnulx 13. uLClSlCn 8L S1A1Lu CASL nC. 2, MAn CA - CC1C8L8 22, 2012 ............................... 723
ALnulx 14. CCMMlSSlCnL8'S 8uLlnC Cn u8LlCA1lCn 8AnS - !uL? 12, 2012 ........................... 761
ALnulx 13. CCMMlSSlCnL8'S 8uLlnC Cn u8LlCA1lCn 8AnS - MA8CP 12, 2013 ...................... 823
ALnulx 16. C8uL8 ln CCunClL 441/2011 - uLC 7, 2011 ............................................................... 847
ALnulx 17. C8uL8 ln CCunClL 23/2013 - !An 17, 2013 ............................................................... 849
ALnulx 18. C8uL8 ln CCunClL 190/2013 - !unL 12, 2013 ........................................................... 831
ALnulx 19. CPlLu8Ln ln CA8L Anu CPlLu MAL18LA1MLn1 ln MAnl1C8A - 88CWnLLL .......... 833
ALnulx 20. SuC81lnC ALL CPlLu8Ln 1C 8LACP 1PL MCS1 vuLnL8A8LL - MCCuAlC ........... 879

APPENDIX 1
APPENDIX 1. ORDER IN COUNCIL 89/2011 - MAR 23, 2011 | 503
APPENDIX 1
504 | APPENDIX 1. ORDER IN COUNCIL 89/2011 - MAR 23, 2011
APPENDIX 1
APPENDIX 1. ORDER IN COUNCIL 89/2011 - MAR 23, 2011 | 505
APPENDIX 1
506 | APPENDIX 1. ORDER IN COUNCIL 89/2011 - MAR 23, 2011
APPENDIX 2
APPENDIX 2. COMMISSION COUNSEL AND STAFF | 507

Commissioner: E.N. (Ted) Hughes, O.C., Q.C., LL.D (Hon)

Commission Counsel and Administrative Staff___

Commission Counsel
Sherri Walsh

Senior Associate Commission Counsel
Derek Olson

Associate Commission Counsel
Kathleen McCandless
Noah Globerman
Rohith Mascarenhas

Community Research Analyst
Karen Dyck

Chief Administrative Officer
Marcia Ewatski

Office Manager
Cindy Pearson

Investigators
Sam Anderson
Bruce Foster

The following individuals also contributed as Commission staff at various times:

Associate Commission Counsel: Madeline Low, Elizabeth McCandless

Administrative Staff: Carol Dougan, Judi Gaminek, Shawna Goy, Diane James,
Regina Legaspi, Jennifer McIvor, Nicole Mohoric, Angela Prevost, Monica Shannon,
Harvey Stelmaschuk

Clerks: Diane DeLaRonde, Sandi Desautels, Roxanne Labossiere

Sheriff Officers: Chantal Chepit, Kayla Couette, Dennis Lucero, Jeff St. Paul, Chris Robertson,
Charissa Van Dorp, Amanada Wachtler
APPENDIX 3
APPENDIX 3. AMENDED RULES OF PROCEDURE | 509
APPENDIX 3
510 | APPENDIX 3. AMENDED RULES OF PROCEDURE
SCHEDULE A

COMMISSION OF INQUIRY INTO THE CIRCUMSTANCES
SURROUNDING THE DEATH OF PHOENIX SINCLAIR

AMENDED RULES OF PROCEDURE AND PRACTICE

PART I: GENERAL

1. The Commission's mandate, established by Order-in-Council No. 89/2011,
is:

To inquire into the circumstances surrounding the death of Phoenix
Sinclair and, in particular, to inquire into:

o the child welfare services provided or not provided to
Phoenix Sinclair and her family under The Child and Family
Services Act;

o any other circumstances, apart from the delivery of child
welfare services, directly related to the death of Phoenix
Sinclair; and

o why the death of Phoenix Sinclair remained undiscovered for
several months.

2. Public hearings will be convened in Winnipeg at the Winnipeg Convention
Centre, 375 York Avenue, Winnipeg, Manitoba at a date and time to be
finalized by the Commissioner.

3. In these Rules:
(i) Commission counsel refers to counsel appointed by the
Commissioner and retained by the Government of Manitoba to act
as Commission counsel, and includes any associate counsel or
junior counsel appointed by Commission counsel with the
approval of the Commissioner and under the authority of
Commission counsels retainer;

APPENDIX 3
2
(ii) the term documents is intended to have a broad meaning, and
includes the following forms: written, electronic, audiotape,
videotape, digital reproductions, photographs, maps, graphs,
microfiche and any data and information recorded or stored by
means of any device;

(iii) intervenor refers to a person granted status as an intervenor by
the Commissioner pursuant to paragraph 9;

(iv) party refers to a person granted full or partial standing as a party
by the Commissioner pursuant to paragraph 8; and

(v) person means an individual, group, government, agency or other
entity.

4. All parties, intervenors, witnesses and their counsel shall be deemed to
undertake to adhere to these Rules, and may raise any issue of non-
compliance with the Commissioner.
5. The Commissioner shall deal with a breach of these Rules as he sees fit
including, but not restricted to, revoking the standing of a party or
intervenor, and imposing restrictions on the further participation in or
attendance at the hearings by any party, intervenor, counsel, individual or
member of the media.
6. The Commissioner may amend these Rules or dispense with compliance
with them as he deems necessary to fulfill his mandate and to ensure that
the Inquiry is thorough, fair and timely.
PART II: STANDING

7. Commission counsel, who will assist the Commissioner to ensure the
orderly conduct of the Inquiry, shall have standing throughout the Inquiry.
Commission counsel have the primary responsibility for representing the
public interest at the Inquiry, including the responsibility to ensure that all
matters that bear upon the public interest are brought to the
Commissioners attention.
APPENDIX 3
3
8. A person may be granted full or partial standing as a party by the
Commissioner if the Commissioner is satisfied that the person has a direct
and substantial interest in all or a part of the subject matter of the Inquiry.
9. A person may be granted intervenor standing by the Commissioner if the
Commissioner is satisfied that the person does not have a direct and
substantial interest but has a genuine and demonstrated concern about
the issues raised in the Inquiry mandate and has a particular perspective
or expertise that may assist the Commissioner.
10. The Commissioner will determine on what terms a party or intervenor may
participate in the Inquiry, and the nature and extent of such participation.
11. The Commissioner may direct that a number of applicants share in a
single grant of standing.
12. Applicants for standing will be required to provide written submissions
explaining why they qualify for standing, and how they propose to
contribute to the Inquiry. Applicants for standing will also be given an
opportunity to appear in person before the Commissioner in order to
explain why standing ought to be granted to them.
13. As provided for in Part III (Evidence), counsel representing a witness who
is called to testify before the Commission may participate during the
hearing of that witness evidence without the necessity of applying for
standing.
PART III: EVIDENCE

A. General

14. The Commissioner may receive any evidence that he considers to be
helpful in fulfilling his mandate whether or not such evidence would be
admissible in a court of law.
APPENDIX 3
4
15. The Commissioner may give the reviews listed in Section 3 of Order in
Council No. 89/2011 any weight, including accepting them as conclusive.
16. The Commissioner may consider any court transcripts and similar
documents, which are not subject to a legal claim of privilege, and may
give them any weight, including accepting them as conclusive.
B. Preparation of Documentary Evidence
17. All parties granted standing under Part II of these Rules shall, as soon as
possible after being granted standing, produce to the Commission true
copies of all documents in their possession or control having any bearing
on the subject-matter of the Inquiry. Upon the request of Commission
counsel, parties shall also provide originals of relevant documents in their
possession or control for inspection.
18. Upon the request of Commission counsel, any intervenor granted standing
under Part II of these Rules shall, as soon as possible after being granted
standing, produce to the Commission true copies of all documents in their
possession or control having any bearing on the subject-matter of the
Inquiry. Upon the request of Commission counsel, intervenors shall also
provide originals of relevant documents in their possession or control for
inspection.
19. All documents received by the Commission will be treated by the
Commission as confidential, unless and until they are made part of the
public record or the Commissioner otherwise directs. This does not
preclude Commission counsel from producing a document to a potential
witness prior to the witness giving his or her testimony, as part of
Commission counsels investigation, nor does it preclude Commission
counsel from disclosing such documents to the parties and intervenors to
this Inquiry, pursuant to and subject to the terms and limitations described
in paragraphs 27 and 28 below.
APPENDIX 3
5
20. Any party or intervenor required to produce a document or documents
pursuant to paragraphs 17 or 18 of these Rules or pursuant to a subpoena
or summons issued pursuant to s. 88(1) of the Manitoba Evidence Act and
who claims privilege over any such document shall produce a list of the
documents over which privilege is claimed stating the basis and reasons
for the claim of privilege.
C. Witness Interviews and Disclosure

21. Commission counsel may interview persons believed to have information
or documents bearing on the subject-matter of the Inquiry. The
Commissioner may choose whether or not to attend an interview.
22. Persons interviewed by Commission counsel may choose to have legal
counsel present during the interview, but are not required to do so.
23. If Commission counsel determines that a person who has been
interviewed should be called as a witness in the public hearings referred to
in paragraph 2, Commission counsel will prepare a summary of the
witness expected testimony, based on the interview (Summary).
Commission counsel will provide a copy of the Summary to the witness
before he or she testifies in the hearing. After the Summary has been
provided to the witness, copies shall be disclosed to the parties and
intervenors having an interest in the subject matter of the witness
evidence, on their undertaking to use it only for the purposes of the Inquiry,
and on the terms described in paragraphs 27 and 28 below.
24. The Summary of a witness expected testimony cannot be used for the
purpose of cross-examination on a prior inconsistent statement.
25. Pursuant to section 9 of Order in Council 89/2011, if Commission counsel
determines that it is not necessary for a person who has been interviewed
to be called as a witness, or if the person interviewed is not otherwise able
to be called to testify at the public hearings referred to in paragraph 2,
APPENDIX 3
6
Commission Counsel may tender the Summary to the Commissioner at
the hearing, and the Commissioner may consider the information in the
Summary when making his final findings, conclusions and
recommendations.
26. Unless the Commission orders otherwise, all relevant non-privileged
documents in the possession of the Commission shall be disclosed to the
parties and intervenors at a time reasonably in advance of the witness
interviews and/or public hearings or within a reasonable time of the
documents becoming available to the Commission.
27. Before documents are provided to a party, intervenor or witness by the
Commission, he or she must undertake to use the documents only for the
purposes of the Inquiry and to keep their contents confidential unless and
until those documents have been admitted into evidence during a public
phase of the Inquiry, and to abide by such other restrictions on disclosure
and dissemination that the Commission considers appropriate.
28. All documents provided by the Commission of Inquiry to the parties,
intervenors and witnesses that have not been admitted into evidence
during a public phase of the Inquiry, and all copies made of such
documents, are to be returned to the Commission, in the case of
witnesses on completion of their testimony, and in the case of parties and
intervenors within seven days of the Commissioner issuing his final Report.
29. The Commission may, upon application, release any party, intervenor or
counsel in whole or in part from the provisions of an undertaking regarding
the use or disclosure of documents or information.
D. Witnesses

30. Witnesses who testify will give their evidence under oath or upon
affirmation.
APPENDIX 3
7
31. Witnesses are entitled to have their own counsel present while they testify.
Counsel for a witness who is not a party or intervenor has standing in the
Inquiry for the purposes of that witness testimony, and may examine the
witness as provided in these Rules.
32. Witnesses may be called to give evidence in the Inquiry more than once.
33. Where he considers it advisable, the Commissioner may issue a
summons or subpoena pursuant to s. 88(1) of the Manitoba Evidence Act
requiring a witness to give evidence on oath or affirmation and/or to
produce documents or other things.
34. Parties and intervenors are requested to advise Commission counsel of
the names, addresses and telephone numbers of all witnesses they wish
to have called and, if possible, to provide summaries of the information the
witnesses may have.
E. Oral Examinations

35. The order of examination of a witness will ordinarily be as follows, subject
to paragraph 36, below:
(a) Commission counsel will examine the witness. Except as otherwise
directed by the Commissioner, Commission counsel may adduce
evidence from a witness by way of both leading and non-leading
questions;
(b) The parties who have been granted standing to do so will then have
an opportunity to cross-examine the witness to the extent of their
interest. If these parties are unable to agree on the order of cross-
examination, this will be determined by the Commissioner;
(c) Subject to paragraph 36, counsel for the witness will examine the
witness last, regardless of whether or not counsel is also
representing another party;
(d) Commission counsel will then have the right to re-examine the
witness. Except as otherwise directed by the Commissioner,
Commission counsel may adduce evidence from a witness during
re-examination by way of both leading and non-leading questions.
APPENDIX 3
8
36. Counsel for a witness may apply to the Commissioner for permission to
present that witness evidence-in-chief. If permission is granted, the
witness will be examined in the following order:
(a) Counsel will examine the witness in accordance with the normal
rules governing the examination of ones own witness in court
proceedings, unless otherwise directed by the Commissioner;

(b) Commission counsel will then be entitled to examine the witness.
Commission counsel may adduce evidence from a witness by way
of both leading and non-leading questions;

(c) The other parties with standing will be in entitled to cross-examine
the witness, as provided for in paragraph 35(b);

(d) Counsel for the witness will then be entitled to re-examine the
witness;

(e) Commission counsel will then be entitled to conduct a final re-
examination of the witness, as provided for in paragraph 35(d).

37. Counsel will be governed by section 4.04(2) of the Law Society of
Manitobas Code of Professional Conduct regarding communication with
witnesses giving evidence.
38. Once Commission counsel has indicated that they will not be calling a
particular witness to testify at the public hearings, a party may apply to the
Commissioner and request that the witness be called to give evidence. If
the Commissioner is satisfied that the witness testimony is needed, the
Commissioner may direct Commission counsel to call the witness (in
which case paragraph 35 applies) or may allow the requesting party to call
the witness and adduce his or her evidence in chief (in which case
paragraph 36 applies, with suitable modifications).
F. Use of Documents at Hearings

39. Copies of all documents received by Commission counsel from the
Government of Manitoba, including copies of documents received from
APPENDIX 3
9
Government departments, agencies and other bodies established under
the authority of the Manitoba Legislature, as well as copies of transcripts
of proceedings before any Court or Commission of Inquiry, shall be
presumed to be authentic, unless a party objecting demonstrates on a
balance of probabilities that they are not authentic, and original documents
need not be produced.
40. Before a witness testifies at the Inquiry, Commission counsel may, where
practicable and appropriate, provide the witness and the parties with a
binder or a list of those documents that are likely to be referred to during
that witness testimony.
41. No document shall be used in cross-examination or otherwise unless:
(a) copies of the document have been provided to Commission
counsel in a timely manner pursuant to paragraphs 17 and 18; or
(b) leave of the Commissioner has been granted.
G. Access to Hearings and to the Evidence

42. Subject to paragraph 43, the hearings referred to in paragraph 2 will
ordinarily be open to the public.
43. Where the Commissioner is of the opinion that it is necessary in the
interests of the maintenance of order or the proper administration of
justice to exclude all or any members of the public from the hearing room,
he may, after hearing submissions from interested parties, direct that
portions of the hearing be held in the absence of the public or on such
terms and conditions as he may direct.
44. Applications from witnesses or parties to hold any part of the hearing in
the absence of all or any members of the public should be made in writing
to the Commission at the earliest possible opportunity.
APPENDIX 3
10
45. The transcripts and exhibits from the public hearings will be made
available as soon as practicable for public viewing. Transcripts will be
posted on the Commissions web site as soon as is reasonably practicable.
46. Transcripts of any portions of the hearing that are held in the absence of
the public pursuant to paragraph 43 will be made available for public
viewing on such terms as the Commissioner may direct if, after hearing
the evidence and any submissions, the Commissioner concludes that it is
in the public interest to release the transcripts.
PART IV: NOTICES REGARDING ALLEGED MISCONDUCT

47. The Commissioner will not make a finding of misconduct on the part of
any person unless the person or, if the person is deceased, his or her
estate has had reasonable notice of the substance of the alleged
misconduct and has been allowed full opportunity during the Inquiry to be
heard in person or by counsel.
48. Any notices of alleged misconduct will be delivered on a confidential basis
to the person to whom the allegations of misconduct refer.
49. Pursuant to Section 5 of Order in Council 89/2011, the Commissioner
must perform his duties without expressing any conclusion or
recommendation about the civil or criminal liability of any person.
PART V: PROCEDURES ON MOTIONS
51. Three copies of the motion materials shall be filed with the Commission
Office.

52. The notice of motion shall be served on any party, intervenor or person
who will be affected by the order sought.

APPENDIX 3
11
53. Evidence on a motion may be given by affidavit. Where a party to the
motion has served every affidavit on which the party intends to rely, the
party may cross-examine the deponent of any affidavit served by a party
who is adverse in interest on the motion.

54. A party who has cross-examined on an affidavit filed by an adverse party
shall not subsequently file an affidavit for use at the hearing without leave
or consent, and the Commissioner shall grant leave, on such terms as are
just, where he is satisfied that the party ought to be permitted to respond
to a matter raised on the cross-examination with evidence in the form of
an affidavit.

55. The right to cross-examine shall be exercised with reasonable diligence,
and the Commissioner may refuse an adjournment of a motion for the
purpose of cross-examination where the party seeking the adjournment
has failed to act with reasonable diligence.

56. A party who cross-examines on an affidavit shall:

(a) order copies of the transcript for the Commission and the party being
examined; and

(b) file a copy of the transcript with the Commission.

APPENDIX 4
APPENDIX 4. COMMISSIONERS RULING ON APPLICATIONS FOR STANDING - JUNE 29, 2011 | 521
COMMISSION OF INQUIRY INTO THE CIRCUMSTANCES
SURROUNDING THE DEATH OF PHOENIX SINCLAIR

The Honourable Edward (Ted) N. Hughes, OC, QC, LLD. (Hon),
Commissioner

VOLUME 2

_______________________________________________________

TRANSCRIPT OF PROCEEDINGS before the Commission,
held at the Winnipeg Convention Centre, 375 York
Avenue, Winnipeg, Manitoba, on the 29th day of
June, 2011
_______________________________________________________

APPENDIX 4
522| APPENDIX 4. COMMISSIONERS RULING ON APPLICATIONS FOR STANDING - JUNE 29, 2011
JUNE 29, 2011 [1]
RULING BY THE COURT
JUNE 29, 2011 1
PROCEEDINGS CONTINUED FROM JUNE 28, 2011 2
3
THE CLERK: This hearing into the commission 4
inquiry into the circumstances surrounding the death of 5
Phoenix Sinclair is now in session. Please be seated. 6
THE COMMISSIONER: Well, as you likely 7
appreciate, I think this is going to take a little while I 8
review the 17 applications before me, but we will get under 9
way. 10
The public call for applications of participation 11
in this commission of inquiry provided as follows: 12
13
"Applications for standing as a 14
party are being invited from any 15
person or group with a direct and 16
substantial interest in the 17
subject matter of the Inquiry. 18
Applications for standing as an 19
intervenor are being invited from 20
any person or group that does not 21
have a direct and substantial 22
interest but has a genuine and 23
demonstrated concern about the 24
issues raised in the Inquiry 25
mandate and has a particular 26
perspective or expertise that may 27
assist the Commissioner." 28
29
The rules of procedure and practice for this 30
inquiry, consistent with the call for applications provide: 31
32
"8. A person may be granted 33
full or partial standing as a 34
APPENDIX 4
JUNE 29, 2011 [2]
RULING BY THE COURT
party by the Commissioner if the 1
Commissioner is satisfied that the 2
person has a direct and 3
substantial interest in all or a 4
part of the subject matter of the 5
Inquiry. 6
9. A person may be granted 7
intervenor standing by the 8
Commissioner if the Commissioner 9
is satisfied that the person 10
does not have a direct and 11
substantial interest but has a 12
genuine and demonstrated 13
concern about the issues raised 14
in the Inquiry mandate and has a 15
particular perspective or 16
expertise that may assist the 17
Commissioner." 18
19
As a, as recorded in those rules, it is my 20
responsibility to determine the terms of participation of a 21
party or intervenor, the nature and extent of that 22
participation and provision is made for me directing that a 23
number of applicants share in a single grant. 24
What will amount to a direct and substantial 25
interest is necessarily contextual and will depend on the 26
terms of reference of the inquiry. In meeting my 27
responsibility of determining whether each applicant for 28
standing, as a party to these proceedings, has a direct and 29
substantial interest, there is unquestionably involved, on 30
my part, the application of a degree of judgment. With 31
respect to the manner of the exercising of that judgment, 32
Commissioner O'Connor, in the commission of inquiry into 33
the actions of Canadian officials in relation to Maher Arar 34
APPENDIX 4
JUNE 29, 2011 [3]
RULING BY THE COURT
said that judgment should have regard to the subject matter 1
of the inquiry, the potential importance of the findings or 2
recommendations to the individual or organization, 3
including whether their rights, privileges, or legal 4
interests may be affected and the strength of the factual 5
connection between the individual or group and the subject 6
matter involved. 7
I consider that to be sound reasoning which I 8
have followed in deciding on the applications for party 9
standings that are before me. 10
The subject matter of this inquiry is as spelled 11
out in paragraph 1 of the order in council establishing the 12
commission, followed by paragraphs 2 and 3, which contain 13
directives that I must following in carry (sic) out my 14
inquiry into the identified subject matter. 15
Besides my concurrence with Commissioner 16
O'Connor, I am in accord with the remarks of commission 17
counsel spoken yesterday when she addressed this commission 18
on the test for a standing as a party. Equally so with 19
respect to her reference to the rights and obligations that 20
flow from a grant of party standing. 21
The test for granting intervenor status is not a, 22
the direct and substantial one. I am again in agreement 23
with what was said by commission counsel relating to the 24
less onerous extensive role of intervenors. Those granted 25
intervenor status participate in a different manner, but 26
the opportunity they have to contribute to the work of the 27
commission is both real and substantial. Firstly, the 28
rules relating to documentary disclosure have applicability 29
to them and secondly, during the course of the hearing, 30
they will be given access to all transcripts and exhibits 31
filed at the hearings. On the occasion on which those with 32
party status make their closing submissions to the 33
commission, the intervenors will have the opportunity to do 34
APPENDIX 4
JUNE 29, 2011 [4]
RULING BY THE COURT
the same and they can do so either or both in, through oral 1
or written presentations. If a need arises, intervenors 2
may also be called upon by the commission at other times 3
for their assistance. 4
Before I move to a consideration of the 5
applications before me, I wish to make special reference of 6
the role of commission counsel, whom, as I made clear, as 7
is made clear in our rules of procedure and practice, has 8
standing throughout the inquiry. With her rests the 9
primary responsibility for representing the public 10
interest. It will be her responsibility to ensure that all 11
matters that bear on the public interest are brought to my 12
attention and to investigate and to lead evidence in a 13
thorough but completely impartial and balanced manner such 14
that public confidence in the process in integrity and 15
impartiality of the inquiry itself will be maintained 16
throughout. 17
On announcing the appointment of Ms. Walsh and 18
members of her legal team, Ms. Low and Ms. McCandless on 19
April the 15th, I went into greater detail about the 20
importance of the position of commission counsel and the 21
duties and responsibilities resting with her. The 22
proceedings of that day can be found on the commission 23
website. 24
Until the beginning of this week, I had 16 25
applications for consideration. A seventeenth was received 26
on Monday. Based on the factors that I have enumerated and 27
taken into account in deciding the presence or otherwise of 28
a direct and substantial interest in the subject matter of 29
this inquiry, I have concluded that nine of the applicants 30
do have the required direct and substantial interest. Some 31
of those remaining will be afforded intervenor status and I 32
will address those applications in a few minutes. 33
With respect to the nine, I will speak to the 34
APPENDIX 4
JUNE 29, 2011 [5]
RULING BY THE COURT
reasoning on the basis of which I have concluded as I have 1
with respect to each of them. Before I do so, I will tell 2
you now that there will not be nine individual grants of 3
party status. There will be some groupings, as 4
contemplated by our rules. Where the facts and 5
circumstances that give rise to the presence of a direct 6
and substantial interest are substantially the same in more 7
than one application, I have grouped those with that 8
substantially similar interest into a single grant. In the 9
instances where I have done that, I will, in a few moments, 10
expand on my reasons. I appreciate that substantially the 11
same direct and substantial interest is not the same as 12
identical interests. But in each instance, the real 13
substance of the interest is, in my opinion the same and 14
hence my decision to group. That will necessitate those 15
within a group to meet at an early date and chart their 16
course. The result of my grouping will result in five 17
grants of standing as parties to these proceedings. While 18
my decisions are based on what I have just said and will be 19
amplified upon in a few moments, the result I have arrived 20
at will have the ancillary positive effect of achieving the 21
most possible expeditious process, as well as having an 22
impact on the cost of these proceedings. In the public 23
interest, I cannot lose sight of those significant factors. 24
I make an individual grant of standing as a party 25
to this inquiry to the following three applicants: (1) The 26
Department of Family Services and Consumer Affairs of the 27
Government of the Province of Manitoba, (2) Manitoba 28
Government and General Employees Union, (3) Intertribal 29
Child and Family Services. I will briefly outline my 30
reasons for these, those decisions. It should be noted 31
that all applications are public documents and are 32
available for viewing on the inquiry website. 33
With respect to the Department of Family Services 34
APPENDIX 4
JUNE 29, 2011 [6]
RULING BY THE COURT
and Consumer Affairs and the Government of Manitoba, this 1
commission could not adequately carry out its assignment 2
without the full participation of the, of the Department. 3
The reasons why that is so are made abundantly clear in 4
counsel's letter of June 3rd. He made the following 5
points: (1) The Department is the legal successor to 6
Winnipeg Child and Family Services Agency, in whose care 7
Phoenix Sinclair was placed twice during her short life. 8
Winnipeg Child and Family Services, which is now a part of 9
the Department, also provided services to Phoenix and her 10
family until about March 2005. (2) The Department has 11
overall responsibility for the regulation of child welfare 12
services in Manitoba. (3) The Department has 13
responsibility for oversight of the implementation of the 14
recommendations made in the six reviews that followed the 15
death of Phoenix, all of which reviews are identified in 16
the order of council, establishing the commission and to 17
which the commission is mandated to give its attention to 18
with respect to the matter of implementation. 19
The Department's participation is critical to the 20
commission effectively meeting its mandate. It clearly has 21
a direct and substantial interest in all of the subject 22
matter of the inquiry and accordingly, full party status is 23
accorded to it. 24
Manitoba Government and General Employees Union. 25
The Union is the sole and exclusive representative with 26
respect to terms and conditions of employment of 400 of its 27
members who are employed as front line service providers 28
within the child welfare system of Manitoba. They work for 29
the department to whom I have just granted party status. 30
The Union bargains those terms and conditions of employment 31
with the Department. The application accords, records that 32
eight, 38 of its members have been identified as being 33
directly involved in providing services to Phoenix and/or 34
APPENDIX 4
JUNE 29, 2011 [7]
RULING BY THE COURT
her family in the five years prior to her death. Most, if 1
not all, of those 38 members are expected to detail at the 2
inquiry the circumstances and the particulars of their 3
involvement. The Union has said in its application, 4
paragraph 25: 5
6
"As the front-line workers who 7
provided [the] services to Phoenix 8
Sinclair, many MGEU members will 9
be able to explain how the Child 10
Welfare system [operated] 11
generally and how services were 12
provided specifically to Phoenix 13
Sinclair and her family. They 14
will be able to explain how most 15
of the services provided were 16
consistent with Departmental 17
expectations and expectations of 18
the general public." 19
20
Paragraph 26: 21
22
"However, it is possible (and very 23
[likely regrettable] regrettably 24
likely) that some MGEU members 25
will be subjected to public 26
scrutiny and criticism regarding 27
their role." 28
29
Paragraph 27: 30
31
"In that respect, it is also 32
possible that [the] the Department 33
and its counsel will be in a legal 34
APPENDIX 4
JUNE 29, 2011 [8]
RULING BY THE COURT
conflict as it relates to their 1
ability to fully and adequately 2
represent its employees. That is, 3
without admitting as much, if MGEU 4
members, as employees of the 5
Department failed to meet 6
childcare standards or 7
expectations [of] policies and 8
procedures of the Department, then 9
the Department and its counsel 10
will be unable to fully and 11
adequately represent the interests 12
of ... MGEU members at the 13
Inquiry." 14
15
It is because of the possibility of such a 16
conflict existing that I lean to granting party status to 17
the union, notwithstanding that status, that status has 18
already been granted to the employer of the union's 19
members. The union has put its mind to possible 20
consequences if its members and, and if, if -- to its 21
members and has expressed its concern in the following 22
paragraph and it points to The Law of Public Inquiries by 23
Simon Ruel, page 57, as authority for it. Paragraph 47: 24
25
"A person who is alleged to have 26
committed misconduct clearly has a 27
substantial and direct interest in 28
the subject matter of [the] 29
inquiry. However, the test of 30
substantial and direct interest 31
covers a wider class of persons 32
than those who may be subject to 33
simply adverse findings in a 34
APPENDIX 4
JUNE 29, 2011 [9]
RULING BY THE COURT
commissioner's report. A 1
substantial and direct interest 2
may also arise from the fact that 3
one's legal interests may be 4
affected or when the subject 5
matter of the inquiry may 6
seriously affect a person. This 7
is certainly true when [the] the 8
propriety or legality of the 9
actions of a person may be called 10
into question [and] and 11
encompasses fear of a person's 12
sense of well-being or fear of an 13
adverse affect (sic) on one's 14
reputation, if serious and 15
objectively reasonable." 16
17
Returning to the possibility of conflict 18
referenced earlier, the union has added the following in 19
its application, paragraph 56: 20
21
"In addition, as in the Kingston 22
Prison for Women Inquiry, MGEU 23
members who were directly involved 24
in providing care to Phoenix 25
Sinclair and her family will be in 26
need of legal representation as it 27
relates to their personal role in 28
the provision of services. Some 29
of the MGEU members may choose not 30
to be represented by counsel for 31
the Department and indeed, there 32
may be many factual matters on 33
which the Union and the Department 34
APPENDIX 4
JUNE 29, 2011 [10]
RULING BY THE COURT
may differ with regard to the 1
environment in the Child Welfare 2
system [in the] in the time period 3
leading to the events surrounding 4
Phoenix Sinclair and immediately 5
thereafter. While this may not 6
necessarily be the case for all 7
employees, where there is [a] 8
conflict between the MGEU member, 9
the MGEU and the Department, the 10
grant of full standing to ... MGEU 11
can be restricted as appropriate 12
as it [related] to the right to 13
cross-examination where the MGEU 14
and the Department have a similar 15
interest on particular issues." 16
17
I have concluded that the Union has a direct and 18
substantial interest in the inquiry and standing as a party 19
is accorded to it. I would anticipate that the Department, 20
I would anticipate the Department preceding the Union in 21
cross-examination of witnesses and where there is no 22
conflict between the Department and a member of the Union, 23
the Union will, in such instances, be appropriately 24
restricted in its cross-examination. 25
Intertribal Child and Family Services. This is a 26
First Nation Child and Family Service agency established in 27
April 2001, exclusively delivering child and family 28
services to three First Nations communities, one of which 29
is Fisher River First Nation, the location where the death 30
of Phoenix occurred. The agency points out that shortly 31
after the death of Phoenix, it had contact with the family 32
and was the first agency to report information concerning 33
her death. It emphasizes that the mandate of this 34
APPENDIX 4
JUNE 29, 2011 [11]
RULING BY THE COURT
commission will require it to review the agency's 1
involvement and activities during the relevant times in 2
question. I agree. It correctly points out that the very 3
locus of the tragedy distinguishes the Agency from all 4
other parties to the inquiry. It has pointed out that the 5
death of Phoenix within the mandated territorial agency, 6
territorial area of the Agency, has had a deep and 7
devastating impact on the entire Fisher River community. I 8
am satisfied that Intertribal Child and Family Services has 9
a direct and substantial interest in this inquiry that 10
warrants its status as a party to the inquiry. 11
I now turn to a consideration of the general 12
Child and Family Services Authority, the First Nations of 13
Northern Manitoba Child and Family Services Authority, the 14
First Nations of Southern Manitoba Child and Family 15
Services Authority and the Child and Family All Nations 16
Coordinated Response Network known as ANCR, ANCR, pardon 17
me, ANCR. Prior to 2004, child and welfare services were 18
delivered throughout Manitoba in accordance with the 19
governing statute of the province, the Child and Family 20
Services Act. The actual delivery of on the ground 21
services were through agencies mandated by the director of 22
Child and Family Services to whom the agencies were 23
responsible. The predominant service provider to residents 24
of the city of Winnipeg was the Winnipeg Child and Family 25
Services agency, of which I have already made mention. 26
In or about November 2003, pursuant to the 27
recently enacted Child and Family Services Authority Act, a 28
major shift in the delivery of services was underway as a 29
result of the provision in that act creating four 30
authorities, three of which I have just identified and each 31
authority was charged with administering and providing for 32
the delivery of child and welfare services. 33
In the case of the Northern Authority, it is to 34
APPENDIX 4
JUNE 29, 2011 [12]
RULING BY THE COURT
(a) people who are members of the Northern First Nations 1
specified in the Regulations, (b) persons who are 2
identified with those Northern First Nations and (c) other 3
persons as determined in accordance with a protocol 4
established in the Regulations. 5
In the case of the Southern Authority, it is to 6
(a) people who are members of the Southern First Nations 7
specified in the Regulations, (b) persons who are 8
identified with those Southern First Nations and (c) other 9
persons as determined in accordance with the protocol 10
established in the Regulations. 11
The third authority identified in the Act is the 12
Mtis Authority and it is given the same responsibility as 13
the Northern and Southern Authorities, but confined to all 14
Mtis and Inuit people. That authority is not an applicant 15
for standing. 16
Then follows in the Act provision for the general 17
authority which was given responsibility for administering 18
and providing for the delivery of child and welfare 19
services to all persons not receiving services from another 20
authority. 21
The authorities are authorized to mandate service 22
agencies to provide required services. Such agencies are 23
always responsible to the authority which has mandated them 24
to deliver services. 25
Provision is also made in the Authorities Act for 26
the four of them jointly designating an agency to provide 27
joint intake and emergency services in any geographic 28
region of the province established by Regulation. 29
The applicant, Child and Family All Nations 30
Coordinated Response Network, ANCR, is the agency 31
designated for the indicated purpose in the geographic 32
areas of Winnipeg, Headingley, East and West St. Paul. The 33
Southern Authority is the mandated authority to which ANCR 34
APPENDIX 4
JUNE 29, 2011 [13]
RULING BY THE COURT
is responsible and to whom it reports. Intertribal Child 1
and Family Services, to whom I have already granted a 2
standing is also under the direction of the Southern 3
Authority, in that the Fisher River Reserve is within the 4
territorial, territorial jurisdiction of that authority. 5
Following the proclamation of the Authorities 6
Act, there was a period of transition while caseloads were 7
transferred to the authorities. The Department of Family 8
Services and Consumer Affairs, as the successor to the 9
Winnipeg Child and Family Services Agency, can be expected 10
to give the commission the details of the child welfare 11
services provided or not provided to Phoenix and her family 12
during her lifetime. 13
Because these pour, four parties whose 14
applications I am now addressing had neither responsibility 15
for nor other involvement in the life of Phoenix, I limit 16
their involvement to that aspect of the foregoing aspect of 17
the inquiry's work. I say that with the expectation that 18
her life and death and the involvement of Phoenix and her 19
family with the delivery of family welfare services will 20
be, will be fully explored by the commission counsel and by 21
those who had responsibility for her care and welfare. If 22
circumstances should arise indicating that there is a need 23
for the relaxing of that limitation, that can be dealt with 24
by application to me at the appropriate time. 25
There was involvement and participation and 26
intense interest by the authorities, following the 27
discovery of the death of Phoenix. The General Authority 28
had particular interest and involvement at that stage, 29
firstly because of its statutory responsibility for service 30
delivery to all persons not receiving services from another 31
authority, and secondly because of its awareness of the 32
services that had previously been provided to Phoenix and 33
her family by Winnipeg Child and Family Services Agency. 34
APPENDIX 4
JUNE 29, 2011 [14]
RULING BY THE COURT
In the course of the devolution process, that 1
agency became a mandated agency of the general authority. 2
Holding the responsibility it did, the General Authority 3
participated in an internal review conducted with respect 4
to the death of Phoenix. 5
With respect to the findings made in reviews 6
identified in paragraph 3 of the order in council 7
establishing this commission and the implementation of the 8
recommendations made in them, it is apparent to me that 9
many of them bear on the mandate of the commission as 10
stated in paragraph 1 of the order in council. All of 11
those matters are of significant importance to the three 12
authorities and to ANCR. Recommendations that had been 13
made have province wide implications involving all four 14
authorities. So does the matter of implementation those, 15
of those recommendations. When I consider these factors 16
and the important role that the legislature has given to 17
the relatively newly formed authorities, with particular 18
attention to the delivery of services to First Nations in 19
this province, I have concluded that the three authorities 20
which have applied for standing and also ANCR, because of 21
its role as the designated intake agency for Winnipeg 22
contemplated by the Act, all have a direct and substantial 23
interest in the subject matter of a major part of this 24
inquiry. That is the part that addresses the 25
recommendations that have been made in the identified 26
reviews that have, that bear on the mandate of the 27
commission as outlined in paragraph 1 of the order in 28
council and the implementation of them consistently across 29
the entire province. On these matters, the standing status 30
that I have awarded to the four of them will be full and 31
unrestricted. 32
I see no reason why these four applicants should 33
have separate standing. It is a clear instance where there 34
APPENDIX 4
JUNE 29, 2011 [15]
RULING BY THE COURT
should be a sharing of a single grant. The interests of 1
the parties are not divergent in any substantial way. They 2
will make a significant contribution to the work of the 3
commission as consideration is given to the protection and 4
welfare of children who are and who become the 5
responsibility of the authorities and of ANCR. 6
I note also that the Authorities Act specifically 7
requires that each authority, in respect of the persons for 8
whom it is responsible to provide services must cooperate 9
with other authorities to ensure that the delivery of child 10
and welfare, family services in the province is properly 11
coordinated. It is that cooperation that I expect to occur 12
as the three authorities work together as partners in the 13
grant of standing that I have made to them. It should not 14
be difficult for ANCR to participate with the same level of 15
cooperation. I note that in presenting its application, 16
it, it is represented by the same law firm as the Southern 17
Authority. 18
I now come to consider the applications of Steve 19
Sinclair and Kimberly-Ann Edwards. Steve Sinclair is the 20
biological father of Phoenix Sinclair. He advised that 21
from the, from the time Phoenix was three months old, he, 22
as her father, had a close relationship with her and when 23
he and the biological mother of Phoenix, Samantha Kematch, 24
Kematch, permanently separated in June 2001, he took 25
custody of Phoenix. 26
In their applications for standing, Steve 27
Sinclair and Kimberly-Ann Edwards say that they have been 28
friends for a number of years. At one time they lived in 29
the same neighbourhood. Commencing in August 2000, 30
Sinclair often brought Phoenix to the home of Edwards and 31
eventually, the child stayed with Edwards overnight and 32
before long, she was staying for extended weekends. From 33
the time of the separation of the biological parents, 34
APPENDIX 4
JUNE 29, 2011 [16]
RULING BY THE COURT
Phoenix spent long periods in the care of Edwards and when 1
she was there, Steve was a frequent visitor with his 2
daughter. Kimberly-Ann Edwards says that for a 3
considerable amount of the time, she was the primary 4
caregiver for Phoenix. 5
Edwards and Sinclair say that the last contact 6
they had with Phoenix was when Kematch came to the Edwards 7
home and with the consent of Edwards, took Phoenix for a 8
visit in the park. Sinclair and Evans (phonetic), Edwards 9
say that their efforts to subsequently locate Phoenix were 10
unsuccessful, notwithstanding what they describe as 11
numerous calls to government agencies and other 12
organizations for help in their search for her. 13
I have concluded that both Sinclair and Edwards 14
have a direct and substantial interest in this inquiry and 15
I award that status to both of them, as to, that is to say, 16
as full parties. However, their interests are so similar 17
that it is appropriate they share a single grant of 18
standing. They are represented by the same counsel. 19
I have reached the decision just indicated for a 20
number of reasons. Sinclair is the biological father and 21
he asserts his interest and concern for the wellbeing of 22
his daughter throughout her life. In my view, that alone 23
warrants the standing I have afforded to him. 24
This inquiry is about Phoenix Sinclair. Much of 25
the evidence will not bear directly on Phoenix as the 26
person and personality that she was during her short life. 27
Kimberly-Ann Edwards, as her intermittent caregiver during 28
the first three years of her life, had significant contact 29
with her and will be able to tell us about the little girl 30
that she was and who she says enjoyed a good life during 31
the time they spent together with Phoenix calling Kimberly 32
nana-mom. She is entitled to participate of I, as I have 33
indicated. 34
APPENDIX 4
JUNE 29, 2011 [17]
RULING BY THE COURT
That completes the list of applicants to whom I 1
will grant standing as parties to the inquiry. I now turn 2
to a consideration of the granting of intervenor status. 3
There will see, be three such grants and I will speak to 4
each of them. 5
Firstly, the Faculty of Social Work, University 6
of Manitoba. The Faculty, through its dean and with the 7
authorization of the University, has requested intervenor 8
status. I have no hesitation with granting that request 9
and I express my appreciation for the willingness of the 10
University of Manitoba to be of assistance. I have already 11
identified the level of participation afforded to 12
intervenors. If the Faculty makes a submission at the 13
close of the hearings, it will undoubtedly be very helpful 14
to me. I say that, given the basis for the Faculty's 15
expression of interest in the work of this inquiry, 16
expressed in the following paragraph its, of its 17
application: 18
19
"The Faculty of Social Work at The 20
University of Manitoba is the only 21
accredited social work educational 22
program in the Province. 23
Accordingly, the majority of 24
social workers with undergraduate 25
or graduate degrees working in 26
Manitoba's child welfare system 27
are graduates of the Faculty. 28
Moreover, the Faculty continues to 29
work with the Child Welfare 30
Authorities and the Child 31
Protection [directives to] to 32
identify training and educational 33
needs for social workers and 34
APPENDIX 4
JUNE 29, 2011 [18]
RULING BY THE COURT
others working in the system. To 1
this end, we have collaborated in 2
the establishment of a range of 3
educational opportunities 4
including courses, diplomas and 5
specializations with a focus on 6
child welfare. Faculty members 7
have also been involved in 8
research and program evaluations 9
in the area of child welfare at a 10
provincial, national and 11
international level. In addition, 12
the faculty is currently engaged 13
in reviews of its curricula and 14
the Inquiry is certainly relevant 15
to these activities." 16
17
I now come to the application of the Assembly of 18
Manitoba Chiefs. The Assembly has placed before me a very 19
thoughtful and well prepared issues and issues outline 20
which it wishes to address at this inquiry. The 21
presentation is made under the following three headings: 22
(1) The Treatment of First Nations Children and Families in 23
Indian Residential Schools and the Child Welfare System and 24
the Inter-Generational Effects on First Nation Children and 25
Families, (2) The Role of First Nations in the Delivery of 26
Child and Family Services, (3) The Challenges Facing the 27
Child Welfare System. 28
My consideration of the subject matter identified 29
in these three items and the detailed subheadings listed 30
beneath them would invite serious consideration of a 31
request for parting (sic) standing if this inquiry was one 32
into the entire child welfare system of this province. 33
That is not the scope of this inquiry. Rather, it is, as 34
APPENDIX 4
JUNE 29, 2011 [19]
RULING BY THE COURT
recorded at the top of page 1 of the issues outline paper, 1
an inquiry into the circumstances surrounding the death of 2
Phoenix Sinclair. 3
Unquestionably, as this commission looks at the 4
child welfare services provided or not provided to Phoenix 5
Sinclair and her family before and after devolution, many 6
of the practices and procedures related to the delivery of 7
child welfare services are going to come under the 8
spotlight and receive the attention and consideration of 9
this commission. As that occurs, the focus will be on the 10
facts of the Phoenix Sinclair tragedy and not on the broad 11
brush envisaged by this applicant. I do not see the 12
Association of Manitoba Chiefs having a direct and 13
substantial interest in the central and critical component 14
of the assignment given to me, in that this applicant has 15
had no involvement whatever in the facts surrounding the 16
life and death of Phoenix Sinclair. The applicant has not 17
met the test to be afforded party standing. 18
With the opportunity to receive documentary 19
disclosure, review the transcripts of all of the 20
proceedings at this inquiry and to view all the exhibits, 21
the Assembly of Manitoba Chiefs may well be in a position, 22
as an intervenor, to assist me in fulfilling my mandate. 23
By that time, the matter in which the child welfare system 24
worked or did not work in the case of Phoenix Sinclair will 25
be a matter of record. The perspective and expertise of 26
the Assembly could very well be most helpful to me by 27
addressing the strengths and/or weaknesses of the child 28
welfare system in the province, as disclosed by the 29
evidence presented at the hearing and by suggesting changes 30
or improvements to the benefit of First Nations children 31
and families, as well as others who will, in the future, be 32
provided with child and family welfare services. 33
Accordingly, intervenor status is awarded to the Assembly 34
APPENDIX 4
JUNE 29, 2011 [20]
RULING BY THE COURT
of Manitoba Chiefs. 1
Before leaving my consideration of this 2
application, I wish to mention that in his submission, 3
counsel for the Assembly of Manitoba Chiefs indicated an 4
intention to call witnesses who have evidence which is 5
relevant to the mandate of this inquiry. As per Rule 34, 6
both parties and intervenors are requested to advise 7
commission counsel of the names and addresses and telephone 8
numbers of witnesses they wish to have called. I'm sure 9
that commission counsel will welcome the Assembly of First 10
Nations Chiefs' suggestions in that regard. 11
Also, with respect to Rule 18, the Assembly of 12
Manitoba Chiefs will be required, will be required to 13
provide commission counsel with documents that are relevant 14
to the mandate of this inquiry. 15
I now come to the Southern Chiefs' Organization 16
Inc. The Southern Chiefs' Organization advised that it 17
advocates on behalf of the political and legal interests of 18
its 33 member Southern Manitoba First Nations, who are in 19
turn currently represented by the chiefs of these 20
communities. Its advocacy is on behalf of the protection, 21
preservation, promotion and enhancement of First Nations 22
peoples with inherent rights, languages, customs and 23
traditions through the application and implementation of 24
the spirit and intent of the treaty making process. For 25
the same reasons I declined to, to, declined party status 26
to the Assembly of Manitoba Chiefs, I decline the same 27
request of the Southern Chiefs' Organization. Also for the 28
same reasons expressed with respect to the Assembly 29
Manitoba Chiefs' application, I grant intervenor status to 30
the Southern Chiefs' Organization in order to enable it to 31
make a submission to me following the close of the evidence 32
on matters relating to the strengths and/or weaknesses of 33
the child welfare system in this province as disclosed by 34
APPENDIX 4
JUNE 29, 2011 [21]
RULING BY THE COURT
the evidence presented at the hearing and by suggesting 1
changes or improvements to the benefit of First Nations 2
children and families, as well as others who will, in the 3
future, be provided with child and welfare services. 4
My inclination was to direct the Assembly of 5
First Nations and Chiefs and the Southern First Nations of 6
Chief (sic) to share a single grant of intervenor statting 7
(phonetic), standing. The Southern Chiefs' Organization 8
tell me, however, that the interest of the Assembly of 9
Manitoba Chiefs and the Southern Chiefs' Organization "vis- 10
-vis child welfare are divergent". Had I been considering 11
a grant of party status to either the Assembly of Manitoba 12
Chiefs or the Southern Chiefs' Organization, which I am 13
not, I would have required more information of the, on the 14
extent of that divergent that has been referred to, 15
divergence that has been referred to. Since, however, it 16
is intervenor status that is to be granted to each of them, 17
I will accept the Southern Chiefs' Organization statement 18
of that divergence and grant a separate intervening 19
standing to each of them. 20
As an intervenor, Southern Chiefs' Organization 21
is also encouraged to identify witnesses to commission 22
counsel and will be required to provide commission counsel 23
with documents that are relevant to the mandate of the 24
inquiry. 25
Besides the application made to the commission on 26
Monday, which I will come to, this leaves four applications 27
that neither party nor intravenous, intervenor status will 28
be granted. I will state my reasons with respect to each. 29
First is the Phoenix Sinclair Foundation Inc. 30
The Foundation was formed as a non-profit organization on 31
August 24th, 2007. It was an obvious outgrowth of the sad 32
death of Phoenix Sinclair. In its application, it has set 33
forth both its mission and its goals. Rather than 34
APPENDIX 4
JUNE 29, 2011 [22]
RULING BY THE COURT
repeating them here, I will reference the Foundation's 1
website of www.tpsfi.webs.com, where more information can 2
be found. 3
In its application, the Foundation has said that 4
its purpose is to "promote positive societal changes in the 5
child protection system so that no other children in care 6
die". It is clear that in pursuit of that purpose, the 7
Foundation places great emphasis on the safety of 8
aboriginal children in care. While the Foundation sets out 9
a number of grounds in support of its request, the first on 10
its list is central to its request. It reads: 11
12
"(1) The Foundation seeks answers 13
as to how and why a child, who was 14
in the care of Child and Family 15
Services, could have been 16
subjected to long term serious 17
abusive treatment, without Child 18
and [welfare] ... Services 19
noticing. The Foundation wants to 20
ensure that the child protection 21
system makes the appropriate 22
systemic changes to prevent 23
children from 'falling between the 24
cracks'". 25
26
I expect evidence called by commission counsel 27
will bear out the assumptions made in the first sentence of 28
that statement. What is stated therein will be a central 29
focus of this inquiry, along with the expectation of the 30
improvements that are addressed in the second sentence. In 31
my considered judgment, those witnesses called by 32
commission counsel will answer the issues raised in that 33
central ground advanced by the Foundation, insofar as they 34
APPENDIX 4
JUNE 29, 2011 [23]
RULING BY THE COURT
can be answered, and hopefully, that will be fully 1
answered. 2
I view the remaining grounds for standing 3
advanced by the Foundation as being ancillary to the first. 4
While the Foundation has been incorporated to do good and 5
useful work, I do not see it being in a position to assist 6
me in the achievement of the mandate that has been given to 7
me. I say that bearing in mind the participation of those 8
afforded standing and those entitled to participate with 9
more limited role as intervenors. Into the former category 10
falls Steve Sinclair and Kimberly-Ann Evans, Edwards, two 11
of the four founders of the Phoenix Sinclair Foundation 12
Inc. Considering all of the foregoing, I do not see the 13
Foundation as having a direct and substantial interest, nor 14
coming within the boundaries specified for receipt of 15
intervenor status. 16
I now turn to a consideration of the Northern 17
Action Group (NAG) Inc., Lawrence Traverse and Janelle 18
Sutherland and Carman S. These applications come from 19
sincere and well-meaning people. Well-meaning in the sense 20
that each of them have had experiences in the child welfare 21
system of this province which they believe, if they had the 22
opportunity to relate to the commission, would be of 23
assistance to it in successfully achieving the mandate 24
given to it. 25
In the case of NAG, I am told that it is an 26
advacy (phonetic), advocacy group for families expressing 27
conflict with the current welfare system. The chair of NAG 28
who authored the application is the father of children who 29
he says have been taken from him and made permanent wards 30
of, I assume, the Department of Family and Services and 31
Consumer Affairs. 32
Lawrence Traverse is the father of a daughter who 33
he says was "murdered" in care. Janelle Sutherland is the 34
APPENDIX 4
JUNE 29, 2011 [24]
RULING BY THE COURT
aunt of that child. Mr. Traverse says, quote, he, he, says 1
he, "has many important questions he wishes to have 2
answered" and he "seeks changes in the child welfare 3
protection system of Manitoba so, so that similar deaths as 4
that of his daughter and Phoenix Sinclair will be prevented 5
from happening to any other child". 6
He has had other children also taken into care. 7
He respectfully requests standing at the inquiry to bring 8
closure to his daughter's case and closure to his family so 9
that they might move forward and heal. 10
Janelle Sutherland is a sister-in-law to Lawrence 11
Traverse. She is fameer (phonetic) with the, with his 12
family members. She says she was the -- well, the primary 13
help to him and like her brother-in-law, besides many 14
important questions she wishes to have answered, she seeks 15
changes in the child protection system of Manitoba so that 16
similar deaths such as that of her niece and Phoenix 17
Sinclair can be prevented from happening to any other 18
child. 19
Carman S. has three children who were taken into 20
care. Two of those children, as Carman describes it, are 21
not doing well. He makes the application on their behalf, 22
as well as his own. The applicant states the reason for 23
the application in these words: 24
25
"The reason I feel that my family 26
has contributions to make is 27
because we were in the same 28
system, the same social workers 29
even. Our insights are unique and 30
our feedback would have no intent 31
other than truly ... to share our 32
thoughts and opinions on what 33
would make the system work 34
APPENDIX 4
JUNE 29, 2011 [25]
RULING BY THE COURT
better." 1
2
Insofar as I am aware, none of these applications 3
that I have just reviewed are from groups or individuals 4
who have had any contact with or direct knowledge about the 5
death of Phoenix Sinclair or members of her family. As 6
clearly stated in paragraph 1 of the order in council 7
establishing this commission of inquiry, its mandate is to 8
inquire into the circumstances surrounding that death. 9
Yesterday, commission counsel correctly stated the 10
relationship that paragraphs 2 and 3 of the order in 11
council have to that mandate when she said: 12
13
"... Mr. Commissioner, in defining 14
the scope of the mandate which has 15
been given to this commission, it 16
is clear that the terms of 17
paragraphs two and three ... must 18
be read in light of the wording of 19
the first paragraph [of the order 20
in council], which ... requires 21
you to inquire into the 22
circumstances surrounding the 23
death of Phoenix Sinclair. This 24
means that in reviewing the 25
findings and recommendations of 26
the reports listed in paragraph 27
three you must have regard to 28
those [finding] ... 29
recommendations which specifically 30
address the child welfare services 31
provided or not provided to 32
Phoenix Sinclair ... and any 33
recommendations about child 34
APPENDIX 4
JUNE 29, 2011 [26]
RULING BY THE COURT
welfare services which are in the 1
nature of the services provided to 2
Phoenix and her family. This 3
[includes] any systemic 4
recommendations about those 5
aspects of the child welfare 6
system which were engaged in the 7
services provided to Phoenix and 8
her family." 9
10
These three applicants, therefore, do not have a 11
direct and substantial interest in the subject matter of 12
this inquiry. That is to say they are not able to 13
contribute to the work of this commission of inquiry as it 14
looks into the life and death of Phoenix Sinclair, or her 15
family, nor the services provided or not provided to the 16
deceased during her lifetime. 17
In considering the matter of intervenor status, I 18
appreciate my responsibility as imposed by paragraphs 2 and 19
3 of the order in council to make recommendations to better 20
protect Manitoba children and to consider specific 21
recommendations and their implementation that arise from 22
the identified reports prepared subsequent to the death of 23
Phoenix. I am also quite aware of what I have referred 24
with respect to the relationship that paragraphs 2 and 3 of 25
the order in council have to the commission's mandate as 26
expressed in paragraph 1 of that order. In deciding the 27
matter of intervenor status for these three applicants, I 28
have borne those facts in mind, as well as the standard set 29
in our rules for achieving intervenor stantus (phonetic), 30
status, namely, a genuine and demonstrated concern about 31
issues raised in the inquiry's mandate and a particular 32
perspective on expertise that may assist the commission. 33
I have already made three grants of intervenor 34
APPENDIX 4
JUNE 29, 2011 [27]
RULING BY THE COURT
status to those applicants that I have concluded meet the 1
tests set forth in the rules and I believe are in a 2
position to assist the commission in its work. The 3
principle additional factor that these three applications 4
that I am now addressing would bring to the table would be 5
their experience, the experiences they have had with 6
respect to the interfacing of themselves and their children 7
with the child welfare system of this province. In my 8
considered judgment, that factor would not add material 9
benefit to the role that will be fulfilled at this inquiry 10
by commission counsel and by those to whom I have afforded 11
either party or intervening, intervenor status. I quite 12
appreciate the sadness and perhaps exasperation left with 13
these applicants as a result of their own experiences with 14
the child welfare system, but central to the work of this 15
commission, of which I cannot lose sight, is Phoenix 16
Sinclair. As I go down the path that will take me on that 17
journey, it is quite possible that answers to the questions 18
raised by these three applicants will appear. But for the 19
reasons I have stated, they will not be afforded standing 20
at this inquiry. 21
Mr. Traverse is seeking standing, in seeking 22
standing, asked that "at the very least" he be a witness to 23
these proceedings. That will be a matter for commission 24
counsel. 25
I've considered the application first made 26
earlier this week on behalf of the former children's 27
advocate, Billy Schibler. Ms. Schibler participated in the 28
preparation of four of the reports referenced in paragraph 29
3 of the order in council appointing the commission. She 30
is prepared to appear as a witness. 31
It has not yet become clear to me just what role 32
her counsel seeks to play here. Until the evidence begins 33
to unfold, I am not convinced that counsel will have 34
APPENDIX 4
JUNE 29, 2011 [28]
RULING BY THE COURT
certainty in that regard. No grant of participation will 1
be made at this time, but counsel will be entitled to 2
resume his application when circumstances allow him to 3
bring more certainty to his request. 4
I have brief comments to make with respect to two 5
possible participants who were alerted to these proceedings 6
by commission counsel. The first is the children's 7
advocate of the province of Manitoba, who is invited by 8
commission counsel to consider the matter of participation. 9
I am aware the advocate has indicated her willingness to be 10
a witness and to cooperate in any way possible, but given 11
firstly the statutory duties of the holder of that office 12
and secondly, the contents of the substance of the mandate 13
given to this commission, I must record my surprise at the 14
absence of an application from her to be afforded standing 15
at this inquiry. 16
The second is the Government of Canada, 17
represented by the Department of Aboriginal and Northern 18
Affairs and its minister. Commission's counsel's 19
invitation to consider participation was accompanied by her 20
referencing funding arrangements in place by the Government 21
of Manitoba under which the Government of Canada has 22
accepted responsibility for the funding of child welfare 23
services for First Nations in the province of Manitoba. A 24
letter was written and received yesterday by commission 25
counsel from counsel to the Department. It advised that 26
the Federal Crown does not intend to seek standing. It 27
explained why that is so, but offered the possibility of a 28
witness being available to assist the commission. I am 29
appreciative of that response. 30
Including, I want to tell you that two weeks ago 31
commission counsel and I visited the reserve at Fisher 32
River. I thought that to be a matter of respect that ought 33
to be shown, given that that is the place where Phoenix 34
APPENDIX 4
JUNE 29, 2011 [29]
PROCEEDINGS
spent her, the last period of her life. We were warmly 1
received by the chief and band council. There was no 2
discussion about the assignment with which this commission 3
is tasked, other than acknowledgement of its formation. We 4
were greatly impressed with the progress and development 5
that we observed during a tour of the reserve. Besides the 6
obvious economic development taking place, we learned of 7
the steps forward that had been taken to make available to 8
those who reside on the reserve a variety of social 9
services to assist in easing the challenges that arise in 10
the course of daily life. 11
That completes my ruling on the applications for 12
standing at the hearing and I now turn to you, Madam 13
Counsel, and ask what is the next step? 14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
APPENDIX 5
APPENDIX 5. COUNSEL FOR PARTIES, WITNESSES, AND OTHERS | 551

Commissioner: E.N. (Ted) Hughes, O.C., Q.C., LL.D (Hon)

Counsel for the Parties, Intervenors, Witnesses and Others

Counsel for the Parties and Intervenors

Gordon A. McKinnon and Sacha Paul,
Counsel for the Department of Family Services

Garth H. Smorang, Q.C. and Trevor Ray,
Counsel for the Manitoba Government and General Employees Union

Hafeez Khan and James Benson,
Counsel for Intertribal Child and Family Services

Laurelle Harris and Michelle Pollock-Khan,
Counsel for the General Child and Family Services Authority

Kris Saxberg, Harold Cochrane, Luke Bernas and Shawn Scarcello
Counsel for First Nations of Northern Manitoba Child and Family Services, the First Nations of
Southern Manitoba Child and Family Services and Child and Family Services All Nation
Coordinated Response Network

Jeff Gindin, George Derwin and David Ireland,
Counsel for Kimberly-Ann Edwards and Nelson Draper Steve Sinclair (Steve Sinclair)

Jay Funke, Jessica Saunders and Tom Rees,
Counsel for the Assembly of Manitoba Chiefs and Southern Chiefs Organization (AMC/SCO)

Gregory L. Juliano and Maria Versace,
Counsel for the University of Manitoba, Faculty of Social Worker

William Haight and Kara Bjornason,
Counsel for the Manitoba Mtis Federation and Mtis Child and Family Services Authority
and Helen Waugh

Greg Tramley and David Phillips,
Counsel for the Aboriginal Council of Winnipeg

Catherine L. Dunn,
Counsel for Ka Ni Kanichihk Inc.

APPENDIX 5
552 | APPENDIX 5. COUNSEL FOR PARTIES, WITNESSES, AND OTHERS
2

Counsel for Witnesses

Kristine Barr,
Counsel for Marie Pickering

Ted E. Bock,
Counsel for Darlene MacDonald in her capacity as the Childrens Advocate

Bernice Bowley
Counsel for Diva Faria

Greg Brodsky, Q.C. and Ursula Goeres,
Counsel for Billie Schibler and Margaret Lavallee

Richard Buchwald,
Counsel for Debbie De Gale

Harold Cochrane,
Counsel for Darlene Garson, Cindy Hart, Allison Kakewash, Angela Murdock, Keith Murdock

Robert England,
Counsel for Andrew Koster

William Gange and Kalyn Bomback,
Counsel for SOR #5, SOR #6, SOR #7, SOR #9, DOE #1, DOE #2, DOE #3 and DOE #4
SOR #9 and Nikki Humenchuk

Joel Katz,
Counsel for Corporal Robert Baker

Alan Ladyka,
Counsel for Jan Christianson-Wood in her capacity as Special Investigator for the Office of the
Chief Medical Examiner,

Glenn McFetridge,
Counsel for Lissa Donner, Jan Sanderson and Dr. Rob Santos

Sacha Paul,
Counsel for SOR #3

Vivian Rachlis,
Counsel for SOR #1, SOR #2, SOR #4, Mary Wu

Ryan Rolston and Shannon McNicol,
Counsel for Dan Berg and Diana Verrier

Helga Van Iderstine,
Counsel for Dr. G. Altman,

Robert Zaparniuk,
Counsel for Roberta Dick

Other

Jonathan Kroft and Baillie Chisick,
Counsel for the Canadian Broadcasting Corporation, CTV Winnipeg, Global Winnipeg and
The Winnipeg Free Press
APPENDIX 6
APPENDIX 6. COMMISSIONERS RULING ON CONFLICT OF INTEREST ISSUE - MARCH 19, 2013 | 553

The Honourable Edward (Ted) Hughes, Q.C.,
Commissioner

***************************************************
Transcript of Proceedings
Public Inquiry Hearing,
held at the Winnipeg Convention Centre,
375 York Avenue, Winnipeg, Manitoba

***************************************************

TUESDAY, MARCH 19, 2013
APPENDIX 6
554 | APPENDIX 6. COMMISSIONERS RULING ON CONFLICT OF INTEREST ISSUE - MARCH 19, 2013
RULING BY THE COURT MARCH 19, 2013

- 1 -

MARCH 19, 2013 1
PROCEEDINGS CONTINUED FROM MARCH 12, 2013 2
3
THE COMMISSIONER: I want to say that first thing 4
this morning, that when we adjourned on Wednesday I had 5
just posed a series of questions to Mr. Saxberg of D'Arcy & 6
Deacon and requested a reply by Friday. I want to 7
acknowledge that that reply came in on time and certainly 8
was assistance to me in preparing my remarks for today, and 9
I thank the firm of Mr. Saxberg for that cooperation. 10
On February the 6th I raised a concern that 11
D'Arcy & Deacon LLP could be in a conflict as a result of 12
the multiple clients the firm represents in these 13
proceedings. Mr. Saxberg stated his belief that the firm 14
was not in a position of conflict of interest. 15
I referred the matter to the Law Society of 16
Manitoba. It has found a conflict of interest to exist in 17
three instances: 18
First, between Mr. Saxberg's clients, Faria and 19
Berg, on the one hand, and the general authority, by virtue 20
of its evidence from its CEO, Jay Rodgers, on the other. 21
The general authority is a party with standing at 22
this Commission as the holder of a shared grant with the 23
southern authority, northern authority and ANCR. The 24
holders of the shared grant are represented by Mr. Saxberg. 25
APPENDIX 6

- 2 -

The Law Society said, and I quote: 1
2
"There can be no question however 3
that the interests of the 4
individual clients would be 5
materially and adversely affected 6
by the evidence of a witness to 7
the effect that the standards in 8
2005 were clear, and that the 9
decision to close the file signed 10
off by Ms. Faria, and supervised 11
by Mr. Berg (who testified that it 12
met the standards required of a 13
protection investigation) was in 14
error. Mr. Saxberg will now find 15
himself in the very difficult 16
position of having to rationalize 17
the evidence of Mr. Rodgers with 18
that of Ms. Faria and Mr. Berg. 19
While that constraint may or may 20
not have an adverse impact on his 21
representation of the General 22
Authority, the same cannot be said 23
of his individual clients." 24
25
APPENDIX 6

- 3 -

Second, regarding the conflict between Mr. 1
Saxberg's client, supervisor Faria on the one hand and his 2
client, the social worker Dick, whom Faria supervised on 3
the other hand, the Law Society said, quote: 4
5
"Ms. Dick's evidence with respect 6
to her practice of determining a 7
response time based upon the 8
workload demands at intake was 9
denied by Ms. Faria. Only one 10
version can be accepted by the 11
Commissioner. Where do Mr. 12
Saxberg's loyalties lie? Quite 13
clearly the interests of the two 14
witnesses' conflict. He cannot 15
argue that one of his clients is 16
telling the truth while the other 17
is not. If in the context of the 18
issues before the Commissioner 19
this is a significant point, we 20
conclude that the interests of Ms. 21
Faria are directly adverse to 22
those of Ms. Dick and vice versa." 23
24
Third, with respect to current general authority 25
APPENDIX 6

- 4 -

employee Christianson-Wood, who is also the writer of the 1
Section 10 report on the one hand, and Faria and Berg on 2
the other, the Law Society said, and I quote: 3
4
"Notwithstanding that Mr. 5
Saxberg's representation of Ms. 6
Christianson-Wood is in her 7
capacity as an employee of the 8
General Authority, the duty of 9
loyalty that he owes to her and to 10
the General Authority in that 11
context must inevitably conflict 12
with the equivalent duties that he 13
owes to Ms. Faria and Mr. Berg." 14
15
It is my reading of the letter from the Law 16
Society that the conclusion it reached in the closing 17
paragraph of its letter that: 18
19
"... we have concluded that Mr. 20
Saxberg's representation of 21
multiple parties has given rise to 22
conflicting interests and that his 23
duty of loyalty to his clients is 24
compromised ..." 25
APPENDIX 6

- 5 -

was a result of the finding of those three instances of 1
conflict of interest that I have just identified. Mr. 2
Saxberg advises that he is withdrawing as counsel for 3
social workers Faria, Berg and Dick and that new counsel 4
has been arranged for them. Insofar as Mr. Saxberg's 5
clients who have been identified in the above three 6
instances are concerned, the foregoing arrangement leaves 7
for my consideration the general authority and Mr. 8
Saxberg's association with it as counsel for the four 9
participants who share a single grant of standing. 10
Before I turn to address that issue, I will now 11
wish to comment on the position in which Mr. Saxberg's 12
client, Verrier, finds herself. 13
In Mr. Saxberg's letter of March the 7th, 2013 to 14
the Commission, in which he sets out his proposal for 15
continued participation as counsel in these proceedings, he 16
states, and I quote: 17
18
"To be clear, the Northern 19
Authority, the Southern Authority 20
and ANCR were not involved in the 21
delivery of services to Phoenix 22
Sinclair. As such, they will not 23
be taking a position with respect 24
to the conduct of any of the 25
APPENDIX 6

- 6 -

individual social workers that 1
have testified in Phase 1 of this 2
proceeding." 3
4
Without making any predetermination of these 5
matters, I am mindful that as Commissioner of an inquiry I 6
may make findings of misconduct with respect to the conduct 7
of an entity or an individual witness. Before doing so, 8
pursuant to this Commission's rules of procedure and 9
practice, the Commission will provide a notice of alleged 10
misconduct on a confidential basis to the said witness, 11
entity or their counsel. This allows them the opportunity 12
to respond to the notice prior to making any such finding. 13
In light of Mr. Saxberg's comments that the 14
institutional clients he represents will not be taking a 15
position with respect to the conduct of any of the 16
individual social workers that have testified in phase one 17
of this proceeding, I do not see how he can reasonably 18
believe that representation of Ms. Verrier, who was an 19
individual social worker who testified in phase one and 20
whose conduct is, therefore, potentially subject to 21
findings by me of an adverse nature, is not jeopardized by 22
his concurrent representation of both Ms. Verrier and the 23
authorities and ANCR. Accordingly, it is my decision that 24
Mr. Saxberg and his firm are disqualified from continuing 25
APPENDIX 6

- 7 -

to represent Verrier in these proceedings. 1
Now, with respect to the single grant made to the 2
three authorities and ANCR, Mr. Saxberg makes the following 3
proposal, and I quote: 4
5
"In order to remedy the appearance 6
of conflict with Mr. Rodgers and 7
Ms. Christianson-Wood vis--vis 8
their relationship with the 9
General Authority, the General 10
Authority has instructed us to 11
seek an individual grant of 12
standing so it can retain new 13
counsel." 14
15
That would leave Mr. Saxberg continuing as 16
counsel for the other three parties to the single grant, 17
namely the southern authority, the northern authority and 18
ANCR. 19
It is important to record the history of the 20
joint grant of standing as a single party. The grant was 21
made on June the 29th, 2011. At that time, I declined 22
standing in phase one because it was apparent to me that 23
the four entities "had neither responsibility for nor other 24
involvement in the life of Phoenix". They were, however, 25
APPENDIX 6

- 8 -

granted full and unrestricted standing for the balance of 1
the inquiry. 2
On February 28th, 2012 Mr. Saxberg wrote to the 3
Commission requesting full standing for the three 4
authorities and ANCR in phase one stating as reasons for 5
the request the following, and this is a lengthy quotation 6
from his letter of that date: 7
8
"The Honourable Commissioner 9
premised his decision in this 10
regard on the assumption that 11
neither the Authorities nor ANCR 12
had responsibility or involvement 13
in any aspect of Phase 1. 14
The Authorities and ANCR have now 15
identified eight (8) individuals 16
that were directly involved in 17
important matters related to Phase 18
1 of the Inquiry. Commission 19
Counsel is aware of these 20
individuals and has indicated that 21
they will be interviewed and 22
perhaps summoned to testify during 23
Phase 1 of the Inquiry. 24
These individuals fall under the 25
APPENDIX 6

- 9 -

auspice of the Authorities and 1
ANCR due to the fact that they 2
were either employees of the 3
Authorities or ANCR during the 4
time period in which they were 5
involved in Phase 1 matters, or 6
they were employees of Agencies 7
for which the Authorities are 8
ultimately responsible, or they 9
are now currently employees of the 10
Authorities or ANCR." 11
12
And he went on, at a later stage of the letter, 13
to say: 14
15
"These individuals, along with the 16
Authorities and ANCR as their 17
employers and/or regulators, have 18
a direct and substantial interest 19
in Phase 1 of the Inquiry for the 20
following reasons: 21
The legal interests of these 22
individuals and thereby the 23
Authorities and ANCR may be 24
affected as a result of their 25
APPENDIX 6

- 10 -

involvement in Phase 1 of the 1
Inquiry; 2
These individuals and thereby 3
the Authorities and ANCR may 4
be subject to adverse 5
findings during Phase 1 of 6
the Inquiry which would have 7
adverse affects on their 8
reputations; 9
These individuals and the 10
Authorities and ANCR may be 11
seriously affected by their 12
involvement in Phase 1 of the 13
Inquiry." 14
15
And then he continued: 16
17
"As the Honourable Commissioner 18
stated in his June 29, 2011 ruling 19
with respect to the various 20
applications for standing, these 21
above factors are relevant in 22
establishing a direct and 23
substantial interest necessitating 24
full party status ... 25
APPENDIX 6

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Further, and apart from the above, 1
the findings of fact with respect 2
to Phase 1 of the Inquiry will 3
necessarily affect the validity 4
and perceived effectiveness of the 5
recommendations and the 6
implementation of those 7
recommendations by the Authorities 8
and ANCR since the death of 9
Phoenix Sinclair. These matters 10
will be dealt with in Phases 2 and 11
3 of the Inquiry, which the 12
Authorities and ANCR already have 13
standing in. 14
It is therefore crucial that the 15
Authorities and ANCR have standing 16
with respect to Phase 1, so that 17
they may ensure that the factual 18
underpinnings that relate directly 19
to the recommendations are 20
properly before the Commission. 21
An important role that the 22
Authorities and ANCR will play in 23
Phase 3 is providing details of 24
the implementation of the 25
APPENDIX 6

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recommendations. We understand 1
that the Commission will be 2
inquiring as to whether the 3
'changes to the child welfare 4
system after Phoenix Sinclair's 5
death would have influenced the 6
services delivered to Phoenix and 7
her family'. 8
Another important role will be the 9
'provide relevant information to 10
the Commissioner and to the public 11
regarding the changes to the child 12
welfare system and how they better 13
protect Manitoba children, in 14
light of the lessons learned from 15
the facts of Phoenix's case. 16
These opinions could change as a 17
result of the Commission's finding 18
of fact in Phase 1. It is thus 19
imperative that the Authorities 20
and ANCR be allowed to participate 21
in Phase 1 to ensure the proper 22
factual context is laid for the 23
opinions and evidence we expect 24
that they will provide in Phase 3. 25
APPENDIX 6

- 13 -

Therefore, Phases 1, 2 and 3 are 1
inextricably intertwined and 2
cannot be hived off into 3
watertight compartments. 4
We note that any decision in this 5
regard will not affect the funding 6
arrangement between the Government 7
of Manitoba and the Authorities 8
and ANCR." 9
10
And that ends the long quotation from Mr. Saxberg's letter 11
of February 28th of 2012 in which he makes his request. 12
When speaking to that request for extended 13
standing on March the 6th, 2012, a week or so after his 14
letter, Mr. Saxberg acknowledged my initial basis for the 15
joint standing and went on to say the following: 16
17
"So what's changed since June of 18
2011? There are two points to 19
make here. 20
First, eight important phase 21
1 witnesses have been identified 22
so far by the authorities and ANCR 23
and the law firm of Darcy & Deacon 24
will be acting for those eight 25
APPENDIX 6

- 14 -

individuals, whose interests are 1
aligned with the authorities' and 2
ANCR. 3
Number 2 -- so that the first 4
point, is the witnesses. 5
The second point really 6
relates to the observation that 7
the factual findings as to the 8
services provided or not provided 9
to Phoenix Sinclair are what will 10
inform the appropriateness of the 11
recommendations that were made and 12
the implementation of those 13
recommendations in the past and 14
they, and the, those factual 15
findings will also inform the 16
recommendations that this inquiry 17
makes. So therefore, really, the 18
facts and the recommendations are 19
two sides of the same coin. And 20
as we say in our submission, they 21
are inextricably intertwined and 22
are not separable." 23
24
At those same proceedings, Mr. Saxberg indicated 25
APPENDIX 6

- 15 -

that Mr. Rodgers, who, in Mr. Saxberg's words were: 1
2
"... who's the CEO, or who was the 3
CEO of Winnipeg CFS at the time 4
of, that services were being 5
provided to Phoenix Sinclair and 6
her family, is a witness, one of 7
those eight witnesses and he's 8
also an instructing client, 9
because at, at present, he is the 10
CEO of the General Authority." 11
12
Based on those submissions, I granted the request 13
for full standing by the holders of the joint grant in 14
phase one of this inquiry. 15
On March the 7th, 2013, in response to my request 16
for D'Arcy & Deacon's position in light of the letter from 17
the Law Society, Mr. Saxberg wrote as follows: 18
19
"The Authorities had no direct 20
responsibility or involvement in 21
providing services to Phoenix 22
Sinclair and her family." 23
24
And then later he said, in that letter: 25
APPENDIX 6

- 16 -

"... the Authorities/ANCR are not 1
giving evidence or taking a 2
position in Phase 1 of the 3
Inquiry. These organizations 4
wanted to participate in Phase 1 5
cross examinations to ensure that 6
evidence relating to the current 7
system was accurate. 8
The evidence of the 9
Authorities/ANCR in the Phoenix 10
Sinclair Inquiry is limited to the 11
work done by the Authorities/ANCR 12
to implement recommendations from 13
the Reports and to provide 14
evidence on the current 15
functioning of the Child Welfare 16
System. 17
After D'Arcy & Deacon LLP (the 18
'Firm') was formally retained by 19
the Authorities/ANCR, it was 20
approached by witnesses who did 21
not feel comfortable with the 22
choice of counsel available to 23
them, i.e. counsel for the 24
Department or counsel for the 25
APPENDIX 6

- 17 -

Union. 1
Since the firm was acting for 2
entitles that had 'no involvement 3
in delivering the services to 4
Phoenix Sinclair', the Firm's view 5
was that we could also represent 6
individual witnesses in Phase 1 of 7
the Inquiry without the risk of a 8
conflict arising." 9
10
Having observed Mr. Saxberg's participation in 11
phase one over the past 45 days of testimony, however, it 12
is clear that his cross-examination went beyond ensuring 13
that "evidence relating to the current system was 14
accurate". 15
Further, based on the evidence adduced at the 16
public hearings to date, it is apparent that the interests 17
of "those eight individuals" were not "aligned with the 18
authorities and ANCR". 19
The conflict of interest that has occurred here 20
was created by Mr. Saxberg who acted for the four entities 21
to which I gave a joint grant of standing, one of which was 22
the general authority, subsequently accepting retainers 23
from individual witnesses who were or are in the employ of 24
one of those four entities or their predecessors. Had the 25
APPENDIX 6

- 18 -

retainers from the individual witnesses not been accepted 1
by D'Arcy & Deacon, that firm would have been at liberty to 2
act for the group of four without any suggestion of a 3
conflict of interest. 4
As set out by the Law Society in its opinion: 5
6
"... clients may always consent to 7
representation notwithstanding a 8
conflicting interest. That would 9
require full disclosure to the 10
clients of the nature of the 11
conflicting interest, including 12
the relevant circumstances and the 13
reasonably foreseeable ways that 14
the conflict of interest could 15
adversely affect the client's 16
interests. Where a lawyer 17
continues representation with the 18
consent of the affected clients, 19
the lawyer will have satisfied the 20
requirements of Rule 2.04 of the 21
Code of Professional Conduct. 22
Application of the principles 23
articulated in Neil (supra) would 24
import the further requirement 25
APPENDIX 6

- 19 -

that after obtaining the clients' 1
informed consent, the lawyer must 2
reasonably believe that each 3
client's representation will not 4
be jeopardized." 5
6
Mr. Saxberg, in his letter to me of March the 7
15th, responding to the questions I posed to him at the end 8
of the public session I held last week, confirms that he 9
has complied with the professional obligations to inform 10
his clients of his proposal to resolve the conflicts in 11
their representation. 12
I see all the clients represented by Mr. Saxberg 13
in respect to whom a conflict of interest has been 14
identified were copied on his letters to me of March the 15
7th and 15th, 2013. 16
Returning to the events of June the 29th, 2011, I 17
also, on that day, made the joint and single grant of 18
standing after hearing submissions made by separate counsel 19
acting for each of the authorities and ANCR, albeit counsel 20
for the southern authority and ANCR were members of the 21
same firm, D'Arcy & Deacon. After hearing those 22
submissions, I was satisfied that the appropriate course 23
was to join those applicants in a single grant of party 24
status confining their participation to the second and 25
APPENDIX 6

- 20 -

third phases of the inquiry as those phases were then 1
described. 2
In doing so, I stated: 3
4
"I see no reason why these four 5
applicants should have separate 6
standing. It is a clear instance 7
where there should be a sharing of 8
a single grant. The interest of 9
the parties are not divergent in 10
any substantial way." 11
12
This inquiry has proceeded for the last year and 13
a half on this basis. Now, however, because of the 14
conflict of interest which has been identified by virtue of 15
Mr. Saxberg's representation of multiple clients, including 16
the general authority, the ability of Mr. Saxberg to 17
continue to act for the party which was made up of the 18
three authorities and ANCR has been compromised. In his 19
letter of March the 7th, Mr. Saxberg has acknowledged that 20
he and his firm should no longer act for the general 21
authority. As previously indicated, his proposal to 22
address this conflict of interest includes requiring the 23
general authority to obtain a grant of separate standing 24
and new and separate counsel for the remainder of the 25
APPENDIX 6

- 21 -

proceedings. 1
As the most practical way to resolve the 2
conflicts of interest that have been recognized at this 3
advanced stage of the hearings, I accept Mr. Saxberg's 4
proposal regarding the representation of the general 5
authority and order that it now be granted a single grant 6
of standing as a party represented by new and separate 7
counsel. The firm of Levene Tadman Golub have identified 8
itself as having been retained to fulfill the role of 9
counsel for the general authority. 10
In reaching this decision that I have today, I am 11
satisfied that the conflict of interest concerns which I 12
raised in February have been resolved in the manner which 13
protects the interests of individual witnesses, parties 14
with standing and the public. 15
In deciding as I have, the matter of cost that 16
will arise as a result of it is a concern to me and one 17
that I feel a responsibility to address. 18
I now read into the record an e-mail that 19
Commission counsel wisely, and on her own initiative, sent 20
to all counsel participating in the work of the Commission, 21
including Mr. Saxberg, on May the 7th, 2012. That e-mail 22
reads as follows: 23
24
Counsel, over the course of 25
APPENDIX 6

- 22 -

carrying out our investigations 1
and interviews a conflict of 2
interest in the representation of 3
two witnesses by the same legal 4
firm has come to our attention. 5
In that case, appropriately and 6
consistent with the duties set out 7
in our professional code of 8
conduct, the counsel has withdrawn 9
from acting for both witnesses. 10
Separate representation has 11
already been facilitated. In that 12
regard, I remind counsel that if a 13
witness needs separate 14
representation, the costs of same, 15
where necessary, are covered by 16
the Government of Manitoba and 17
Lynn Romeo can be contacted to 18
discuss or counsel or a witness 19
can speak with our office for 20
assistance. I strongly urge 21
counsel at this point to take a 22
long hard look at the witnesses 23
for whom you have indicated you 24
are acting with an eye to 25
APPENDIX 6

- 23 -

determining whether a conflict or 1
potential conflict of interest 2
exists. Are you able to provide 3
the witness the necessary 4
protection of their interests when 5
they testify and are subjected to 6
cross-examination? Are you 7
certain you will not want to 8
cross-examine or question a 9
witness for whom you act based on 10
the evidence of another witness 11
for whom you act such that you 12
cannot be said to be protecting 13
the interests of both witnesses? 14
I have no desire to interfere with 15
individual choices of 16
representation. As Commission 17
counsel, however, it is important 18
that I ensure the following: 19
1. The validity of the findings 20
set out in the Commissioner's 21
final report not be challenged, 22
for example, on the basis of a 23
subsequent determination of 24
conflict of interest. 25
APPENDIX 6

- 24 -

2. The fair and appropriate 1
representation of witnesses who 2
are called to testify at the 3
public hearings, both with respect 4
to the conduct of the inquiry and 5
the procedural fairness which is 6
afforded to them, that is, 7
witnesses must feel free to 8
testify as to the information they 9
know safe in the knowledge that 10
their interests are unequivocally 11
protected by their counsel. 12
3. The public interest in hearing 13
all relevant evidence is 14
protected. 15
4. That the proceedings not be 16
unnecessarily delayed by the 17
discovery of a conflict which 18
could have been determined and 19
addressed in advance. 20
21
That concludes the e-mail sent by Commission counsel. 22
In my judgment, if Mr. Saxberg and those 23
associated with him at D'Arcy & Deacon had taken the "long 24
hard look" recommended by Commission counsel, they would 25
APPENDIX 6

- 25 -

not have faced the difficulties that have plagued this 1
Commission over recent weeks triggered by my intuition in 2
the midst of hearing evidence that Mr. Saxberg and his firm 3
may have been in a conflict as a result of representing 4
their multitude of clients, an intuition that on 5
examination has shown to be correct, the results of which, 6
among other things, has been the necessity of splitting the 7
joint grant of standing to the four entities. 8
We have already been delayed in the presentation 9
of evidence and how much more time will be lost will be a 10
matter for further discussion between Commission counsel 11
and other counsel this morning. 12
I return to the matter of costs occasioned by the 13
events I have reviewed this morning. 14
In responding to the questions I posed to Mr. 15
Saxberg on Wednesday of last week, he has drawn my 16
attention to a discussion that took place in the hearing 17
room on June the 29th, 2011 immediately following my ruling 18
that the joint grant would be made to the four entities to 19
what is now parts two and three of this inquiry but not to 20
phase one in which we are still engaged. 21
Terry Gutkin, who appeared that day as counsel 22
for the general authority posed the following question and 23
then continued with his remarks, and I quote from the 24
transcript: 25
APPENDIX 6

- 26 -

"What we seek from you, Mr. 1
Commissioner, is clarification as 2
to whether the grant of combined 3
standing precludes the various 4
authorities at ANCR from using 5
different counsel to deal with 6
different aspects of the 7
recommendations that are intrinsic 8
to their particular clients, the 9
implementation of recommendations 10
which may be unique to one 11
authority and not to the other, if 12
it's anticipated in your ruling, 13
Mr. Commissioner, that there be 14
one counsel, or that the, the 15
roles of counsel can be split 16
among the authorities, each 17
addressing a particular issue and 18
any cross-examination that may 19
arise relevant only to that issue? 20
THE COMMISSIONER: But not 21
necessitating more than one 22
counsel participating at, at any 23
one time? 24
MR. GUTKIN: I think that's 25
APPENDIX 6

- 27 -

what we're getting at and that's 1
what we're seeking clarification 2
on. So that if my client, for 3
example, has a particular set of 4
recommendations or initiatives, 5
or, or anything else relevant to 6
the recommendations that is unique 7
to it, its counsel, myself, would 8
put forward that evidence and lead 9
evidence on that point or suggest 10
witnesses and, and be able to 11
examine on that point. If there's 12
overlapping recommendations and 13
implementation of recommendations 14
by the three authorities and ANCR, 15
then we sort out who's going to 16
deal with the evidence on that 17
point. 18
THE COMMISSIONER: Well, what 19
you, what you've put to me sounds 20
reasonable. Certainly, we -- it 21
would not be reasonable to have 22
four counsel here participating 23
and waiting for their turn. But 24
if you're going to divide up the 25
APPENDIX 6

- 28 -

work in some way, I, I can't see 1
what, what, what the problem 2
[would] be from my perspective." 3
4
And then later on, Mr. Gutkin said: 5
6
"... and, and I can tell you, Mr. 7
Commissioner, we don't intend to 8
have duplication or overlap, but 9
it seems with the unique interests 10
and you've heard a little bit 11
about that yesterday, it may be 12
useful to have each authority -- 13
THE COMMISSIONER: In other 14
words, divide the load? 15
MR. GUTKIN: That's right. 16
THE COMMISSIONER: I, I think 17
that's reasonable and, and I, 18
assuming, I take it from what 19
you're saying, your, your client 20
and the others that you're now 21
associated with are likely to seek 22
funding from the government? 23
MR. GUTKIN: Well, they are 24
funded by the government, so 25
APPENDIX 6

- 29 -

that's, that's, that's the unique 1
issue here, whether -- 2
THE COMMISSIONER: Yeah, 3
the -- 4
MR. GUTKIN: -- they'll do it 5
through commission counsel, or do 6
it on their own, I, I don't know 7
the answer to that. 8
THE COMMISSIONER: No, but, 9
but, but as, as, as long as the, 10
there, there, if, if that is being 11
sought and as you say, they are 12
funding it anywhere, so I'm not 13
trying to put the government in a 14
position where if it decides on 15
funding and -- but if there's 16
funding anyway, but I'm not trying 17
to put them in a position where 18
they've got four bills to pay for 19
the, for, for the same -- 20
MR. GUTKIN: Nor do we 21
envisage that. 22
THE COMMISSIONER: All right. 23
MR. GUTKIN: It would be an 24
issue for extra funding more than 25
APPENDIX 6

- 30 -

anything. 1
THE COMMISSIONER: Well, I 2
think we're, I think our minds are 3
ad idem and, and I would agree 4
with, with what you want to 5
propose in that regard. 6
MR. GUTKIN: Thank you, Mr. 7
Commissioner." 8
9
That ends that part of the transcript. 10
I reference that exchange because it should form 11
part of relevant documentation that I direct Commission 12
counsel to assemble at an early date relating to the 13
conflict of interest, to be forwarded to the Deputy 14
Attorney General as a senior representative of the 15
government of Manitoba. It is my belief that the events of 16
recent weeks should be known by the government as it 17
addresses not only funding issues going forward but also as 18
it takes a retroactive look, as I believe it should, at the 19
expenditures it has incurred to date and whether any of 20
them would have been avoided had that "long hard look" been 21
taken and, if so, whether it would be in the public 22
interest to initiate recovery proceedings. A copy of 23
Commission counsel's letter to the Deputy Attorney General 24
should go to all participating counsel at the inquiry 25
APPENDIX 6

- 31 -

including a list of the documentation being forwarded with 1
the letter. 2
The list just referred to should include Mr. 3
Saxberg's letter to the Commission on March the 7th and the 4
letter from the law firm of Levene Tadman Golub to the 5
Commission dated March the 15th. The firm advises that it 6
is general counsel to the general authority and that it is 7
prepared to assume the role of counsel to the general 8
authority for the balance of the inquiry, assuming I make a 9
separate grant to the general authority as I have just done 10
this morning. 11
Those letters will be of interest to government 12
because the funding implications that may arise in light of 13
Mr. Saxberg's expression in the final paragraph at page 4 14
of his letter where he says: 15
16
"... the role of new counsel would 17
be limited to cross examination 18
and closing argument. For these 19
reasons, we are of the view that 20
the above proposal will result in 21
little if any delay to the 22
Inquiry." 23
24
And the Levene Tadman Golub response, which reads: 25
APPENDIX 6

- 32 -

"By way of clarification with 1
respect to the final paragraph on 2
page 4 of Mr. Saxberg's 3
aforementioned correspondence, 4
while the evidence of the General 5
Authority in phase II is already 6
in development (though not 7
completed), the role of new 8
counsel will not be limited only 9
to cross-examination and closing 10
argument. Should we be retained 11
as counsel to the General 12
Authority with respect to the 13
Inquiry, we will take our full 14
instructions from our client with 15
respect to all matters. That 16
having been said, we concur with 17
Mr. Saxberg's opinion that the 18
proposed solution to the issue of 19
conflict of interest as it relates 20
to the General Child and Family 21
Services authority will result in 22
little, if any, delay to the 23
inquiry." 24
25
APPENDIX 6

- 33 -

The only remaining matter relates to the future 1
representation of D'Arcy & Deacon's clients Wilson, Fines, 2
Carpenter and the witnesses primarily from Fisher River 3
First Nation represented by Harold Cochrane of that firm. 4
No suggestion of conflict has arisen by the continuing 5
representation of them by D'Arcy & Deacon so I confirm that 6
continued representation by D'Arcy & Deacon of those that 7
I've identified, as well as its representation of the three 8
entities of the now reduced joint grant of standing, namely 9
the northern authority, the southern authority and ANCR. 10
That completes my decision on the conflict of 11
interest matter that I undertook to deliver this morning. 12
When we adjourn, I would ask counsel to meet with 13
Commission counsel to endeavour to agree on a schedule for 14
going forward and completing our assignment. 15
When we were last in session I suggested or 16
identified April the 15th as the likely start-up date or as 17
the start-up date. Now the firm that has come forward to 18
assume responsibility for the general authority has 19
indicated it sees a need for only a short delay and 20
hopefully we can perhaps get this Commission back going 21
perhaps as early as perhaps April the 8th, and I'm 22
certainly hoping we can pick up at least one week in June. 23
I'm aware that Mr. Gindin has a criminal trial in that 24
month and he applied to the Court of Queen's Bench to have 25
APPENDIX 6

- 34 -

it adjourned but was -- his request was declined, and so 1
obviously we must respect the court, which I most certainly 2
do, but I am hopeful we can pick up a week in June and then 3
we can move forward with a schedule that will hopefully see 4
us have everything completed some time in, in the month of 5
March. 6
I, as I say all those things, I, I don't want to 7
see us rush and miss evidence that should be heard by this 8
Commission. I view phases two and three to be very 9
important, particularly phase three, where I hope I will 10
hear evidence to assist me in framing recommendations that 11
will be to the benefit of present and future children of 12
Manitoba, particularly those of aboriginal descent who are 13
so disproportionally represented in the volume of children 14
in care in this province and some other provinces across 15
our country. Phase three will be the important part of 16
this inquiry that will allow me to phrase recommendations 17
that will be to the benefit of, of children in years to 18
come, hopefully, in this province, and that is why I say, 19
while I'm anxious to get this job done, I think this 20
inquiry has gone on quite long enough, nonetheless there is 21
important evidence to come and I don't want to rush through 22
that part of the inquiry for sake of time because I'm 23
anxious to hear the evidence in phase two and, in 24
particular, in phase three for the reasons I've just said. 25
APPENDIX 6

- 35 -

So that adjourns -- that completes everything I 1
have to say today and we'll stand adjourned, and the office 2
will announce the date of resumption which will be arrived 3
at after consultation by the counsel here this morning with 4
Commission counsel. 5
Anything else Madam Commissioner? 6
MS. WALSH: No, thank you. 7
THE COMMISSIONER: Or counsel. Thank you. All 8
right. We'll adjourn for the day. 9
THE CLERK: Order. 10
11
(PROCEEDINGS ADJOURNED SINE DIE) 12
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APPENDIX 15. COMMISSIONERS RULING ON PUBLICATION BANS - MARCH 12, 2013 | 823

The Honourable Edward (Ted) Hughes, Q.C.,
Commissioner

***************************************************
Transcript of Proceedings
Public Inquiry Hearing,
held at the Winnipeg Convention Centre,
375 York Avenue, Winnipeg, Manitoba

***************************************************

TUESDAY, MARCH 12, 2013
APPENDIX 15
824 | APPENDIX 15. COMMISSIONERS RULING ON PUBLICATION BANS - MARCH 12, 2013

- 1 -

MARCH 12, 2013 1
PROCEEDINGS CONTINUED FROM MARCH 11, 2013 2
3
THE COMMISSIONER: Two motions are before me. 4
The first is a motion filed on behalf of witnesses 5
identified as DOE #1, DOE #2, DOE #3 and DOE #4. The 6
relief sought in the first motion is for an order, one, 7
that I prohibit any form of publishing, broadcasting or 8
otherwise communicating by television, internet, radio, in 9
print or by any other means the name, face or identity of 10
witnesses DOE #1, DOE #2, DOE #3 and DOE #4. 11
Two, that I order that DOE #1, DOE #2, DOE #3 and 12
DOE #4 provide their testimony by means of video 13
conferencing, the video portion of which shall be visible 14
only to me and the audio portion of which shall be audible 15
in the hearing room. 16
And three, that the witnesses be referred to, for 17
the purpose of this hearing, as DOE #1, DOE #2, DOE #3 and 18
DOE #4. 19
After filing the motion for a publication ban on 20
behalf of DOES #1, #2, #3 and #4, counsel for DOE #3 filed 21
a further motion to have DOE #3 declared a source of 22
referral, SOR, in the context of this inquiry, along with a 23
request for a publication ban with respect to DOE #3's 24
testimony in the same form as requested in the first 25
APPENDIX 15

- 2 -

motion. 1
The two motions are opposed by Intertribal Child 2
and Family Services, ICFS, and the Assembly of Manitoba 3
Chiefs and the Southern Chiefs Organization, AMC/SCO. 4
ICFS has filed affidavit evidence in response and 5
counsel for ICFS conducted a cross-examination on the 6
affidavit of DOE #3. Counsel for the AMC/SCO attended the 7
cross-examination. The transcript of the cross-examination 8
has been filed with the Commission. 9
ICFS and AMC/SCO have filed briefs in opposition 10
to the two motions filed. The media group has not taken 11
any position with respect to the two motions before me. 12
Each of DOES #1, #2, #3 and #4 has provided 13
direct evidence in support of the first motion. In their 14
affidavits they set out the concerns they have should their 15
identity be made known when they are called to testify in 16
this inquiry. The affidavit evidence is as follows: 17
(a) Affidavit of DOE #1 18
DOE #1 is the son of Wes McKay. He testified at 19
the criminal trial of Wes McKay and Samantha Kematch. DOE 20
#1 was 12 years old at the time that he observed Phoenix 21
Sinclair with Wes McKay and Samantha Kematch. DOE #1 found 22
testifying at the criminal trial very stressful. Following 23
the arrest of Wes McKay for the murder of Phoenix Sinclair, 24
he experienced harassment from people who knew he was a 25
APPENDIX 15

- 3 -

child of Wes McKay. DOE #1 is currently employed and no 1
one connected with his employment is aware that he is 2
related to Wes McKay. DOE #1 states that he has serious 3
concerns that his mental health, physical health and safety 4
may be affected if he has to testify at the inquiry without 5
a publication ban. 6
(b) Affidavit of DOE #2 7
DOE #2 is a child of Wes McKay and testified at 8
the criminal trial of Wes McKay and Samantha Kematch. As 9
his counsel, Mr. Gange, mentioned in his oral submissions, 10
DOE #2 is a brother of DOE #1. DOE #2 was 14 years old at 11
the time that he observed Phoenix Sinclair with Wes McKay 12
and Samantha Kematch. DOE #2 found testifying at the 13
criminal trial very stressful. Like DOE #1, DOE #2 has 14
always said that he experienced harassment from people who 15
knew he was a child of Wes McKay. DOE #2 is currently 16
attending school and his evidence is that no one connected 17
with his schooling is aware that he is related to Wes 18
McKay. DOE #2 believes that his mental health, physical 19
health and safety may be affected if he has to testify at 20
this inquiry without a publication ban. 21
(c) Affidavit of DOE #3 22
DOE #3 is the mother of DOE #1 and DOE #2. She 23
was in a common-law relationship with Wes McKay for 24
approximately seven years. DOE #3 testified at the 25
APPENDIX 15

- 4 -

criminal trial of Wes McKay and Samantha Kematch, which she 1
found very stressful as she was concerned about possible 2
retribution that might result to her because of her 3
testimony. DOE #3 states, like DOE #1 and DOE #2, that 4
following the arrest of Wes McKay for the murder of Phoenix 5
Sinclair, she experienced instances of bullying and 6
harassment from people that knew of her relationship to Wes 7
McKay. DOE #3 is currently employed and no one at her 8
place of employment is aware of her relationship to Wes 9
McKay. She is very concerned about the health and safety 10
of DOE #1 and DOE #2 as they suffer, from time to time, 11
from anxiety and depression. DOE #3 also states that she 12
has serious concerns that her mental health, physical 13
health and safety may be affected if she has to testify at 14
the inquiry without the protection of a publication ban. 15
In cross-examination on her affidavit conducted 16
by Mr. Khan, counsel for ICFS, DOE #3 gave evidence that 17
she is concerned about the possibility of losing her job if 18
her employer was to learn of her former relationship with 19
Karl Wesley McKay. 20
(d) The affidavit of DOE #4 21
DOE #4 is a child of Wes McKay and has four 22
children under the age of 10 who do not know that their 23
grandfather was convicted of the murder of Phoenix 24
Sinclair. DOE #4 does not wish to have this information 25
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- 5 -

made known to them at this time. DOE #4 further states: 1
2
"When Wes McKay was charged with 3
the murder of Phoenix Sinclair I 4
experienced harassment from people 5
who knew that Wes McKay was my 6
father. As a result, I do not 7
tell people that I am a child of 8
Wes McKay." 9
10
As well, at paragraphs 6 and 7 of the affidavit, 11
she states: 12
13
"I have very, very serious 14
concerns that if I am identified 15
during my testimony at the 16
inquiry, my children will 17
experience instances of 18
harassment, bullying, verbal and 19
physical assaults. I require a 20
publication ban to protect my own 21
safety and to prevent my children 22
from being put at risk as a result 23
of my appearance at the inquiry." 24
25
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- 6 -

There is also before me the affidavit of Kalyn 1
Bomback. In support of the second motion for a declaration 2
that DOE #3 is a source of referral, counsel for DOE #3 has 3
filed the affidavit of Kalyn Bomback, a lawyer employed by 4
his firm. The affidavit attaches an excerpt of a document 5
which is a record of a phone call that DOE #3 made to a 6
Child and Family Services worker employed by ICFS on March 7
6, 2006. The document references DOE #3 as the "referral 8
source" and identifies that the issue presented by DOE #3 9
to the ICFS worker was the physical abuse of a five-year- 10
old female. 11
There is also before me the affidavit evidence 12
filed by ICFS, being the affidavit of Bobbie Rachelle Lee, 13
filed in opposition to the two motions. The affidavit 14
attaches a number of exhibits, including news reports 15
created at the time of the criminal proceedings against 16
Karl Wesley McKay and Samantha Kematch. Those news reports 17
refer to DOES #1, #2 and #3 by name. Ms. Lee's affidavit 18
also attaches an excerpt of DOE #3's testimony at the 19
criminal proceedings and records of a phone call that DOE 20
#3 made to the Winnipeg Police Service on March the 6th, 21
2006 in which DOE #3 advised the police that her sons may 22
have witnessed a murder that occurred on the Fisher River 23
Reserve. 24
I now return to the arguments advanced by the 25
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- 7 -

applicants and respondents on the two motions before me. 1
In his brief and in oral argument, counsel for DOES #1, #2, 2
#3 and #4 has argued on behalf of his clients that a 3
publication ban is necessary to protect his clients' own 4
safety and wellbeing. He argues that his clients have 5
legitimate concerns that revealing their identity in the 6
context of these proceedings will subject them to certain 7
risks. 8
In the context of the application to have DOE #3 9
declared a source of referral, counsel has also argued that 10
the evidence shows that DOE #3 is, in fact, an SOR and 11
ought to have been identified as such early in the course 12
of the inquiry. Counsel for DOE #3 further argues that 13
because DOE #3 is an SOR, she is entitled to certain 14
protections pursuant to the Child and Family Services Act, 15
CCSM Chapter 80, which I will discuss in further detail 16
later in these reasons. 17
Counsel for ICFS focuses his client's main 18
opposition to these motions on an argument that the matters 19
are res judicata. The doctrine of res judicata generally 20
holds that a litigant is estopped from bringing forth an 21
issue or cause of action on a matter that has already been 22
decided in a previous proceeding. Counsel for ICFS 23
clarified that his argument with respect to res judicata 24
was not applicable to DOE #4. 25
APPENDIX 15

- 8 -

Counsel for ICFS has also argued that DOES #1, 1
#2, #3, #4 have failed to meet the legal test establishing 2
the basis for a publication ban. He argued that the 3
identity of DOES #1, #2, #3 and #4 is already known as a 4
result of their testimony at the criminal trial. Counsel 5
for ICFS further argued that DOE #3 is not an SOR or 6
informant as defined in the Child and Family Services Act. 7
Counsel for AMC/SCO supported the submission of 8
counsel for ICFS and placed great emphasis on his position 9
that DOE #3 is not a source of referral under the Child and 10
Family Services Act. 11
I will address each of these points in turn but 12
will begin by addressing the argument that has been 13
advanced that these matters a res judicata. 14
The doctrine of res judicata is described by the 15
Manitoba Court of Appeal in Glenko Enterprises v. Keller, 16
2008 M.B.C.A. 24, and I quote: 17
18
"Res judicata has two distinct 19
forms: issue estoppel and cause 20
of action estoppel. Donald J. 21
Lange, in his leading text, The 22
Doctrine of Res Judicata in 23
Canada, 2nd ed. (Markham: 24
LexisNexis Canada Inc., 2004), 25
APPENDIX 15

- 9 -

explains the differences (at pp. 1
1-2): 2
.... issue estoppel means that a 3
litigant is estopped because the 4
issue has clearly been decided in 5
the previous proceedings, and 6
cause of action estoppel means 7
that a litigant is estopped 8
because the cause has passed into 9
a matter adjudged in the previous 10
proceeding." 11
12
ICFS argues that DOES #1, #2 and #3 are estopped 13
from bringing their motion based upon the application of 14
the issue estoppel form of res judicata. 15
In Glenko, the Manitoba Court of Appeal held that 16
in order for issue estoppel to apply, the following three 17
requirements must be satisfied: 18
19
"(1) the same question has been 20
decided in both actions; 21
(2) the judicial decision which 22
is said to create the estoppel was 23
final; and 24
(3) the parties to the judicial 25
APPENDIX 15

- 10 -

decision or their privies were the 1
same persons as the parties to the 2
proceedings in which the estoppel 3
is raised ..." 4
5
ICFS argues that all three requirements for issue 6
estoppel have been satisfied with respect to the 7
publication ban. ICFS' argument is that my ruling on 8
redactions dated December 2, 2011 dealt with the same 9
matter that I am being asked to decide in this motion for a 10
publication ban by DOES #1, #2 and #3. Essentially, they 11
argued the same question has been decided in both actions. 12
The purpose of my ruling on redactions on 13
December the 2nd, 2011, was to deal with certain classes or 14
categories of information that ought to be redacted prior 15
to having the documents distributed internally amongst 16
counsel for the parties and intervenors in this Commission. 17
This was not a determination of what information was to 18
ultimately make its way into the public record. This is 19
further evidenced by the fact that subsequent to my ruling 20
on redactions I received and adjudicated upon motions for 21
publication bans brought by some of the parties to this 22
inquiry, which I heard in July of 2012 and for which I gave 23
a ruling on July 12th, 2012. This included a motion for a 24
publication ban on the identity of social workers brought 25
APPENDIX 15

- 11 -

by counsel for them. 1
These previous publication ban motions were 2
requests for a ban on any form of publication or 3
broadcasting of the identity of any social worker called to 4
testify as a witness in the public hearing phase of the 5
inquiry. This was a separate process which dealt with a 6
different question than that dealt with in my ruling on 7
redactions. ICFS' argument, therefore, fails to note the 8
distinction between the two separate processes. 9
Counsel for ICFS also argued that either one or 10
both of my rulings on redactions of December 2, 2011 and my 11
adjudication of July 11, 2012 on these earlier motions 12
amount to a final decision which was meant to be conclusive 13
and applied to the inquiry proceedings. They also argue 14
that the applicants had an opportunity to apply for a form 15
of a confidential status at any time of my ruling on 16
redactions and the publication ban hearing and they failed 17
to do so. 18
Mr. Gange, in his submissions, argued that the 19
matter could not have been decided because none of DOES #1, 20
#2 and #3 made any application for a publication ban either 21
in July of 2012 or at any other time. I agree with counsel 22
for the applicants. No application for confidentiality was 23
brought on behalf of DOES #1, #2 and #3 in regards to 24
either my ruling on redactions or my ruling on publication 25
APPENDIX 15

- 12 -

ban. The matter was, therefore, not adjudicated nor was a 1
decision given. As such, it cannot be said that the matter 2
was decided and it follows that no final determination 3
could have been made. For these reasons, I find that the 4
doctrine of res judicata does not apply to the motion for a 5
publication ban brought by the applicants. 6
The respondent also argues that res judicata 7
applies to the motion by DOE #3 in which she seeks to be 8
declared a source of referral. For reasons set out below, 9
I do not need to rule on that issue. 10
I now turn to the arguments advanced by the 11
applicants and respondents on the substantive issues in 12
these motions, first with respect to the motion for a 13
publication ban brought on behalf of DOES #1, #2, #3 and #4 14
and then to the motion declaring DOE #3 an SOR and the 15
relief sought as a result of it. 16
My analysis of the substantive arguments in the 17
motion filed by DOES #1, #2, #3 and #4 for a publication 18
ban requires that I conduct what has become known as the 19
Dagenais/Mentuck analysis. 20
In my ruling on publication bans of July 12th, 21
2012, I set out the legal test that applies in the case of 22
a request for a publication ban as follows, and I quote: 23
24
The Supreme Court of Canada has 25
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- 13 -

held that the Dagenais/Mentuck 1
analysis applies to all 2
discretionary orders that limit 3
freedom of expression and freedom 4
of the press in relation to legal 5
proceedings, Toronto Star 6
Newspapers Ltd. v. Ontario 2005 7
S.C.C. 41, paragraph. 7. 8
9
The applicants and respondents to these motions 10
have agreed that this is the analysis to be applied by me 11
in adjudicating on the relief requested by the applicants. 12
The Dagenais/Mentuck analysis provides that a publication 13
ban may only be ordered when 14
(1) such an order is necessary in order to 15
prevent a serious risk to the proper administration of 16
justice because reasonable alternative measures will not 17
prevent the risk; and 18
(2) the salutary effects of the publication ban 19
outweigh the deleterious effects on the rights and 20
interests of the parties and the public, including the 21
effects on the rights to free expression, the right to a 22
fair trial and the efficacy of the administration of 23
justice. 24
I went on to say in my July ruling as follows: 25
APPENDIX 15

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"In R. v. Mentuck it was 1
recognized that the test should be 2
applied in a case-specific manner. 3
R. v. Mentuck is also clear as to 4
the evidentiary standard in 5
applications such as those before 6
me. The onus lies on the party 7
seeking to displace the general 8
rule of openness. There must be a 9
convincing evidentiary basis for 10
issuing a ban. Paragraphs 34 of 11
R. v. Mentuck makes clear the type 12
of evidence that is required in 13
order to displace the general 14
rule:" 15
16
And the court in that instance said this: 17
18
"...One required element is that 19
the risk in question be a serious 20
one or, as Lamer C.J. put it at p. 21
878 in Dagenais, a 'real 22
substantial' risk. That is, it 23
must be a risk the reality of 24
which is well-grounded in the 25
APPENDIX 15

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evidence. It must also be a risk 1
that poses a serious threat to the 2
proper administration of justice. 3
In other words, it is a serious 4
danger sought to be avoided that 5
is required, not a substantial 6
benefit or advantage to the 7
administration of justice sought 8
to be obtained." 9
10
The court, in R. v. Mentuck recognized that there 11
may be cases that raise interest other than the 12
administration of justice for which a similar approach 13
would be used, see, e.g., Sierra Club of Canada v. Canada 14
(Minister of Finance), 2002 S.C.C. 41. 15
All counsel appearing here are in agreement that 16
the Dagenais/Mentuck is the appropriate analysis to apply 17
in determining whether DOES #1 to #4 ought to be granted 18
the publication bans they seek. The Dagenais/Mentuck 19
analysis is meant to be applied in a flexible and 20
contextual manner. 21
In considering the context in which each of DOES 22
#1, #2, #3 and #4 will be called to give evidence, I would 23
note that these individuals are not being called to give 24
evidence about work performed in the course of a public 25
APPENDIX 15

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duty, unlike the social workers who applied for a 1
publication ban in July of 2012. DOES #1, #2, #3 and #4 2
are being called to testify in their personal capacities as 3
a result of their familial association with Karl Wesley 4
McKay. DOE #1 and DOE #2 were children during the time 5
they saw Karl McKay and Samantha Kematch interact with 6
Phoenix Sinclair. 7
I also note that in contrast with the evidence 8
that was tendered on behalf of the social workers in their 9
application for a publication ban last July, each of DOES 10
#1, #2, #3 and #4 has provided their own firsthand 11
affidavit evidence in support of their motion. The nature 12
of this evidence was summarized by their counsel in his 13
brief as follows: 14
15
"2. The four witnesses all have a 16
connection with Wes McKay. Three 17
are his children. One is a former 18
common-law spouse. Certain of the 19
witnesses may provide evidence 20
that comments to a limited extent 21
upon the child welfare system. 22
The main purpose of their evidence 23
will be, however, to comment upon 24
the relationship of Phoenix 25
APPENDIX 15

- 17 -

Sinclair with Wes McKay and 1
Samantha Kematch. It is expected 2
that their evidence will help the 3
Commissioner appreciate to a 4
greater degree the life of Phoenix 5
Sinclair during the final few 6
months of her life. 7
3. The application is brought by 8
all of the witnesses with respect 9
to their own safety and well- 10
being. In addition, witness DOE 11
#4 brings the application as a 12
result of a parent's concern to 13
protect their own children." 14
15
Each of these witnesses has raised a concern 16
about health and safety risks resulting from publication of 17
their identities in the context of this inquiry. DOE #4 18
has raised a concern about potential risk to her children. 19
I accept that as stated in paragraph 111 of my ruling on 20
publication bans of July 12th, 2012 that where there is 21
significant evidence of a potential for harm arising out of 22
the publication of a witness' identity, a publication ban 23
may be ordered. See R. v. Morin 1997 Carswell Ontario 400. 24
A risk to personal health or safety is the type of "serious 25
APPENDIX 15

- 18 -

risk" sufficient to fulfill the first branch of the 1
Dagenais/Mentuck analysis. 2
Based on the direct affidavit evidence before me, 3
I find that there is a risk to the personal health and/or 4
safety that could result from revealing the identities of 5
DOES #1, #2, #3 and #4 to the public in the context of 6
their inquiry testimony. 7
Each of the witnesses has given their own 8
evidence that they have previously experienced instances of 9
harassment as a result of their connection to Karl Wesley 10
McKay. I find that their concerns that they might be 11
subject to further instances should they be identified in 12
this most public inquiry are legitimate. I further accept, 13
as was suggested by counsel for the applicants in his oral 14
submissions, that these four witnesses have been damaged by 15
their association with Karl Wesley McKay and to subject 16
them to publicity in this inquiry would be to victimize 17
them further. 18
The second branch of the Dagenais/Mentuck 19
analysis requires that I examine whether the salutary 20
effects of a publication ban outweigh the deleterious 21
effects on the rights and the interests of the parties and 22
the public, including the effects on the rights of free 23
expression and the efficacy of the administration of 24
justice. The salutary effect of the ban being sought by 25
APPENDIX 15

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DOES #1, #2, #3 and #4 is a reduction in the potential risk 1
to their health and safety, as previously identified. 2
These individuals will also be able to carry on their daily 3
lives, their employment and schooling without the stigma of 4
being widely known as a relative of Karl Wesley McKay. 5
The potential deleterious effects of the bans 6
sought are reduced by the fact that for each of these 7
witnesses their specific relationship to Karl Wesley McKay 8
and all aspects of their evidence, other than their 9
identities, will be fully reported on. The only thing that 10
the public will not see is these individuals' names and 11
images. I disagree with the submissions of counsel for 12
ICFS that this is an extreme ban. This evidence of DOES 13
#1, #2, #3 and #4 will be fully reported on as will their 14
familiar association with Karl Wesley McKay. I therefore 15
find that the salutary effects of the publication ban 16
outweigh any of its deleterious effects. 17
The law of this country as it is enacted and 18
applied has, as it should, a tough side to it. That was 19
displayed by the verdict of the jury and the sentencing by 20
the trial judge that sent Karl Wesley McKay and Samantha 21
Kematch to prison for the rest of their lives, denying them 22
the liberty and the freedom enjoyed by law-abiding 23
citizens. That same law, as it is enacted and applied, 24
also has, as it should, a compassionate side. That I 25
APPENDIX 15

- 20 -

believe has been displayed in the reasoning I have 1
expressed in concluding that the two requirements of the 2
Dagenais/Mentuck test have been met and satisfied, thus 3
allowing me to grant, as I now do, a publication ban for 4
each of DOES #1, #2, #3 and #4 on the terms requested in 5
the first motion, terms that are deemed to include the 6
points advanced yesterday by Mr. Kroft when addressing the 7
inquiry as counsel on behalf of certain media outlets. 8
A consequence of what I have just ordered is that 9
reference to the names of any of these individuals will 10
need to be redacted from documents to be entered into 11
evidence at the public hearings of this inquiry. Counsel 12
for ICFS has pointed out that there are some instances in 13
which the names of some of the individuals have already 14
been entered in the public record at this inquiry. I would 15
direct Commission counsel to ensure that those documents 16
are redacted as well to reflect my decision. 17
Given my decision on the first motion, I do not 18
find it necessary to make the determination as to whether 19
DOE #3 is a source of referral. I make the following 20
comment, however: The arguments advanced by ICFS and 21
AMCO/SCO in opposition to this motion centred around the 22
fact that at the time that DOE #3 made a telephone call to 23
ICFS in March 2006, Phoenix was already unfortunately 24
deceased. As I understand their argument, the protections 25
APPENDIX 15

- 21 -

afforded to sources of referral as found in Section 18 of 1
the Child and Family Services Act do not apply when a 2
person makes a report to an agency about a child who is no 3
longer alive. I do have a concern about interpreting the 4
provisions of the Child and Family Services Act narrowly, 5
given that part of the Commission's mandate is to inquire 6
into why the death of Phoenix Sinclair remained 7
undiscovered for nine months. It was seen that such a 8
narrow interpretation would not serve to encourage 9
reporting cases such as Phoenix's to the appropriate 10
authorities. This may well be something that I will 11
address when I make recommendations in my final report on 12
these proceedings. 13
Commission counsel can now make the necessary 14
arrangements to have DOES #1 to #4 testify in accordance 15
with the procedure I have sanctioned today. The timetable 16
for that to occur will be circulated to Commission counsel 17
subsequent to the directions I will deliver at 2:00 p.m. 18
tomorrow in this room on the conflict of interest issue 19
that is before me for resolution. 20
So that completes the proceedings for today, I 21
believe. Commission counsel, is there anything else? 22
MS. WALSH: No, Mr. Commissioner. 23
THE COMMISSIONER: All right. We'll stand 24
adjourned, then, till two o'clock tomorrow when I'll deal 25
APPENDIX 15

- 22 -

with the other matter, as just indicated. 1
2
(PROCEEDINGS ADJOURNED TO MARCH 13, 2012) 3
APPENDIX 16
APPENDIX 16. ORDER IN COUNCIL 441/2011 - DEC 7, 2011 | 847
APPENDIX 16
848 | APPENDIX 16. ORDER IN COUNCIL 441/2011 - DEC 7, 2011
APPENDIX 17
APPENDIX 17. ORDER IN COUNCIL 23/2013 - JAN 17, 2013 | 849
APPENDIX 17
850 | APPENDIX 17. ORDER IN COUNCIL 23/2013 - JAN 17, 2013
APPENDIX 18
APPENDIX 18. ORDER IN COUNCIL 190/2013 - JUNE 12, 2013 | 851
APPENDIX 18
852 | APPENDIX 18. ORDER IN COUNCIL 190/2013 - JUNE 12, 2013
APPENDIX 19
APPENDIX 19. CHILDREN IN CARE AND CHILD MALTREATMENT IN MANITOBA - BROWNELL | 853
1
Children in Care and Child Maltreatment in Manitoba: What Does Research From the
Manitoba Centre for Health Policy Tell Us, and Where Do We Go From Here?
Marni D. Brownell, PhD
Associate Professor, Department of Community Health Sciences
Senior Research Scientist, Manitoba Centre for Health Policy
University of Manitoba
Paper prepared for Phase III, Phoenix Sinclair Inquiry
APPENDIX 19
854 | APPENDIX 19. CHILDREN IN CARE AND CHILD MALTREATMENT IN MANITOBA - BROWNELL
2
Children in Care and Child Maltreatment in Manitoba: What Does Research From the
Manitoba Centre for Health Policy Tell Us, and Where Do We Go From Here?
Background on the Manitoba Centre for Health Policy and Research in Child Welfare
The Manitoba Centre for Health Policy (MCHP) is a research unit within the Department of
Community Health Sciences, in the Faculty of Medicine at the University of Manitoba. MCHP
houses the Population Health Research Data Repository (hereafter referred to as the Repository),
which is a comprehensive collection of administrative, registry, survey and other databases
primarily comprising residents of Manitoba. The Repository was developed to describe and
explain patterns of health care and profiles of health and illness, but in the past decade has
expanded to include information about services and programs from other departments. This has
enabled inter-sectoral research in areas such as health care, education, and social services.
MCHP acts as a steward of the information in the Repository for government agencies, RHAs
and clinicians. Any project using Repository data must comply with all confidentiality and
privacy policies, and must receive prior approvals from the Faculty of Medicines Research
Ethics Board, the governments Health Information Privacy Committee, and the data custodians.
All person-level data held in the Repository are de-identified, containing no names or complete
addresses. Linkages are possible through the use of an encrypted unique personal identifier.
Data are only linked temporarily for the approved projects. Some database information goes
back almost 40 years, for the entire population of Manitoba. More detailed information about
the MCHP Repository and research using the Repository can be found in Roos & Shapiro (1995;
1999) Roos et al.(2005; 2008) Roos & Nicol (1999), and Brownell et al. (2002).
APPENDIX 19
3
The Repository consists of databases grouped into six domains: Health, Education, Social,
Justice, Registries, and Database Support Files (a detailed listing of the databases within these
domains can be found in Table A1 in the Appendix). The Health domain holds records for
virtually all contacts with the provincial health care system, the Manitoba Health Services
Insurance Plan (including physicians, hospitals, and pharmaceutical prescriptions) of all
individuals registered to receive universal health benefits in Manitoba. The Education domain
consists of Manitoba grade school and high school (kindergarten through grade 12) records
containing enrolment and progress in school, assessments for all children in Grade 3, Grades 7/8,
and Grade 12, and course marks for Grades 9 through 12. The Social domain includes program
data from Healthy Child Manitoba including Families First screening and evaluation, Healthy
Baby program data and scores on the Early Development Instrument (EDI), as well as other
social service data such as Income Assistance and Child and Family Services.

At MCHP we have used data in the Repository to study the outcomes for children in care
(also referred to as foster care and out-of-home placement). In Brownell et al. (2010), we
examined education and social outcomes for youths who had one or more of the following three
risk factors: being a child of a teen mom, experiencing poverty (i.e., living in a family that
received income assistance for at least 2 months between the time the child was 10 and 17 years),
and being involved with Child and Family Services (i.e., being in care or receiving
protection/support services
1
at any time between the time the child was 10 and 17 years). This
study looked at four different outcomes for youths: completion of high school, completion of 8
1
Protection services are provided when a child is seen as in need of protection because his/her health or emotional
wellbeing is endangered; these services do not entail removal of the child from the home. Families can also receive
voluntary support services, which are services that the family requests to aid in the resolution of family matters.
Protection and support are distinct categories of services, but because these distinctions are often blurred, they
were combined (as receiving services from CFS) for this analysis.
APPENDIX 19
4
or more credits in grade 9 (which is a predictor of high school completion (Brownell et al., 2012;
King et al., 2007)), receipt of income assistance as a young adult, and giving birth as a teen
(females only). We found that for youths whose only risk factor was receiving services from
CFS, 57.2% of them completed high school within 7 years of entering grade 9. This is compared
to 81.9% of youths with none of the three risk factors. For youths receiving services from CFS
who also had lived in families receiving income assistance, only 28.3% completed high school
within 7 years of entering grade 9. For youths involved with CFS who also had a teen mom,
38.5% completed high school, and for youths with all three risk factors only 15.8% of them
completed high school.
For the other outcomes studied we found similar results: youths receiving services from
CFS had poorer outcomes than youths without any risk factors, and the more risk factors they
had, the poorer the outcomes. 60.4% of the youths involved with CFS earned 8 or more credits in
grade 9 compared to 83.4% of youths with no risk factors. With one additional risk factor, the
percent dropped to 30.1% or 41.2% (depending on the risk factor) and with all three risk factors
only 20.2% of the youths earned 8 or more credits in grade 9. Whereas only 1.2% of youths with
none of the risk factors received income assistance as young adults (18-19 years), 9% to 33.5%
(depending on the number of risk factors) of youths involved with CFS received income
assistance as young adults. When looking only at the female population of youths, only 2.1% of
females with none of the risk factors gave birth during their teens, compared to 10.7% to 44.5%
(again, depending on the number of risk factors) of females involved with CFS.
APPENDIX 19
5
Recognizing that there may be other influences associated with the three risk factors
examined in this study, that may be contributing to the poorer outcomes of youths involved with
CFS, we conducted multivariate regression analyses to control for the following: age, intellectual
disability, emotional behavioural disorder, number of children in the family, area-level SES,
area-level percent of Aboriginal residents, mothers marital status and sex. Even once these
factors were controlled for, large (and statistically significant) differences in outcomes remained
between outcomes for youths with none of the risk factors and outcomes for youths involved
with CFS. Thus, the educational and social outcomes of youths who have been in care are
poorer than for youths who have not been in care. It should be noted that it is difficult to
determine from these analyses whether being in care or the circumstances leading to being in
care (or a combination of both) resulted in the poorer educational and social outcomes.
We are not the first to demonstrate poorer outcomes for children in care. Indeed,
educational achievement of children in care has long been a concern (Fanshel & Shinn, 1978),
particularly since adolescents emancipated from the child welfare system often leave with little
to no financial resources, community connections or help from family, making educational
achievement that much more important (Tweddle, 2007). Research has indicated that children in
care are more likely to struggle in school (Blome, 1997; Burley & Halpern, 2001; Goerge et al.,
1992; Scherr, 2007). A large proportion of such children (a) receive special education services
(Goerge et al., 1992; Zetlin et al., 2003), (b) have a high rate of absenteeism (Kortenkamp &
Ehrle, 2002; Scherr, 2007), (c) are more likely to be suspended or expelled (Kortenkamp &
Ehrle, 2002), (d) score 15 to 20 per cent below their peers on state-wide achievement tests
(Burley & Halpern, 2001), (e) are much less likely to graduate (Blome, 1997; Burley & Halpern,
APPENDIX 19
6
2001), and (f) are likely to repeat at least one grade (Sawyer & Dubowitz, 1994; Burley &
Halpern, 2001).
In the Manitoba Child Health Atlas Update (Brownell et al., 2008), rates of
hospitalization were compared for children 0 to 17 years of age who had been or were in care in
2001/02-2003/04 to those who had not been in care during this time period. Markedly higher
hospitalization rates were found for children in care, at almost 3 times higher than rates for
children not in care. Some of the most notable differences were for mental disorders, with
children in care having hospitalization rates over 10 times higher than children not in care,
hospitalizations related to pregnancy and childbirth (i.e., teen births), with children in care
having hospitalization rates almost 6 times higher than children not in care, and injuries, with
children in care having hospitalization rates over 3 times higher than children not in care.
Work has also been done using the MCHP Repository to study not only rates of
hospitalizations, but physician visits, suicide attempts and suicides by children in care compared
to children not in care in Manitoba (Katz et al., 2011). This study selected children who were 5
to 17 years of age and who were in care for the first time for at least 30 days between 1997/98
and 2005/06. Children of the same age who had not been in care were used for comparisons.
Children in care had almost twice as many hospitalizations, 14% more physician visits, over
twice as many suicide attempts and three-and-a-half times the rate of suicide compared to
children not in care. These results were found even once additional factors had been controlled
for, including age, sex, socioeconomic status, parental psychopathology, and presence of a
APPENDIX 19
7
psychiatric disorder. This study found that length of time in care and the number of placements
did not have a substantial impact on the outcomes.
Katz et al. (2011) also looked at these same outcomes for children in care both before and
after they were taken into care, where the before period looked at outcomes that occurred in
the two-year period prior to the date of the first placement in care, and the after period looked
at outcomes that occurred on or after the date the child was placed into care until the end of the
study period. They found that attempted suicides, admissions to hospital and physician visits
were all significantly lower in the period after entering care than the period two years before the
placement. The rate of suicide was 73% lower, the rate of hospital admissions was 32% lower
and the rate of physician visits was 11% lower in the period after entry into care.
Given that our research at MCHP, and studies elsewhere, has demonstrated that outcomes
are poorer for children in care compared to children not in care, it is important to know how
many children in Manitoba are affected. According to the Manitoba Family Services and
Consumer Affairs (now Manitoba Family Services and Labour) Annual Report for 2010/11,
there were 9,432 children in care on March 31, 2011 (Manitoba Family Services and Consumer
Affairs, 2011). There were approximately 286,000 children 0 to 17 years of age living in
Manitoba in December 2009 (most recent year of data available) according to a report by MCHP
(Brownell et al., 2012), which would mean that just over 3% of children 0 to 17 in Manitoba
were in care on March 31, 2011. The actual number of children who were in care at any point
during that fiscal year was likely higher, since there would be children who went into care
sometime in the fiscal year but were no longer in care on March 31, 2011. Brownell et al. (2012)
APPENDIX 19
8
calculated the prevalence
2
of children 0 to 17 years of age in care in Manitoba in 2006/07-
2008/09 using data from the Child and Family Services Information System (CFSIS) and found
that 4% of children had been in care at any time over that period. This is likely an underestimate
as not all CFS agencies consistently enter data into CFSIS. When looking over time, the
numbers are even greater: by the age of 7 years, 7.5% of Manitoba children have been in care at
some time in their lives (Gilbert et al., 2012).
It should be noted that not all children in Manitoba are at the same risk of going into care.
Northern Manitoba (in this case, in the former RHAs of Nor-Man, Burntwood and Churchill) has
tended to have higher prevalence of children in care than other areas of the province, although in
the most recent time period available for analysis, prevalence in the North was not different from
the rest of the province (Brownell et al., 2012). This is likely due to incomplete reporting to
CFSIS during this time period. Looking only at children in urban areas, where reporting to
CFSIS is not problematic, there is a large difference across neighbourhoods, with children from
the areas with the lowest income having a prevalence of 14.1% compared to 0.3% in areas with
the highest incomes (Brownell et al., 2012). Of note is the fact that 85% of the children in care in
Manitoba are Aboriginal (Manitoba Family Services and Consumer Affairs, 2011).
Manitoba has some of the highest rates of children in care in the world. In a study of out-
of-home care across several countries, Thoburn (2007) identified Canada as having some of the
highest rates in the world, and Manitobas rate of children in care is one of the highest in Canada
(Canadian Child Welfare Research Portal, 2010). In a comparison across 6 countries, Gilbert et
2
Prevalence refers to the percent of children in care over a given period of time. Each child is counted only once
over the time period.
APPENDIX 19
9
al. (2012) found that rates of out-of-home placements for children up to 10 years of age were 10
times higher in Manitoba than in Western Australia.
Given the generally poorer outcomes experienced by children in care discussed above,
having high rates of out-of-home placements is of concern. Of course, it is difficult to tell from
the research presented whether the poorer outcomes experienced by children in care are the result
of being in care itself, or the factors that led to the children being in care. There are currently no
controlled trials comparing outcomes for children in care to outcomes for children in families
receiving intensive home support (Gilbert et al., 2012), which would help to determine the
impact of out-of-home care itself. What this means is that thousands of Manitoba children are
being placed in care each year, with little evidence that this intervention is effective and will
result in the best possible outcomes for the children. In at least some instances, out-of-home
placements may actually indicate inadequate funding for preventive or supportive interventions
that would allow the child to remain in the home, rather than being an option of last resort after
these other interventions have been tried and failed. The large number of children in care in
Manitoba also raises questions about the sustainability of providing high quality foster care
(Gilbert et al., 2012; ODonnell et al., 2008).
Public Health Approach to Child Maltreatment
To address not only the potential unsustainability of a quality foster care system, but also
the fact that it is likely that only a fraction of children experiencing some form of maltreatment
come to the attention of child protection agencies, a public health approach to child abuse and
neglect has been advocated (Gilbert et al., 2012; ODonnell et al., 2008; Gilbert, Woodman &
APPENDIX 19
10
Logan, 2012). This public health approach would theoretically reduce the risks for child
maltreatment, thereby also reducing the need for removing children from their families and
homes and placing them into care. A public health approach involves primary, secondary and
tertiary prevention strategies, or what are sometimes referred to as upstream, midstream and
downstream approaches (McKinlay, 1998). In the field of population and public health, the
analogy used to describe these approaches to health and health care involves a dangerous
highway with a steep cliff, off of which cars loaded with passengers are continually falling. A
downstream approach would suggest building a hospital at the bottom of the cliff to treat the
victims; a midstream approach may involve erecting a sign on the highway to warn drivers about
the upcoming cliff; whereas an upstream approach would change the environment (in this case
the highway) so that drivers are no longer placed at risk (e.g., re-route the highway away from
the cliff). While all three approaches or strategies are necessary in promoting health, there has
been a disproportionate emphasis on downstream approaches, as opposed to whole population
upstream approaches (McKinlay, 1998). The same can be said for child welfare, where the
emphasis has been on child protection (downstream) rather than universal prevention (upstream)
(ODonnell et al., 2008; Gilbert, Woodman & Logan, 2012).

In order to understand how a public health approach to child maltreatment would work,
it is important to try to understand what factors cause an adult to abuse and/or neglect a child.
Belsky (1993) stressed that child abuse and neglect are likely caused by multiple factors at
multiple levels including individual, familial, community, and societal levels. Individual (child-
level) factors associated with child maltreatment include low birth weight and short gestation,
disabilities and chronic health problems, difficult temperaments, and learning and behavioral
APPENDIX 19
11
difficulties (Sherrod et al., 1984; Spencer et al., 2006; Sprang et al., 2005; Sullivan & Knutson,
2000; Trocm et al., 2003). Family (parent-level) factors include adolescent parenting, lone-
parent status, parents social isolation, parental mental health problems such a depression,
substance abuse, intimate partner violence, parents own history of child maltreatment and/or
lack of positive parenting experiences during childhood (Black et al., 2001; Chaffin et al., 1996;
Corse et al., 1990; DePaul & Domenech, 2000; Ekus et al., 2004; Gilbert et al., 2009; Kelleher
et al., 1994; Sidebotham & Golding, 2001; Trocm et al., 2003). Community characteristics
include neighborhood poverty, unemployment, poor housing conditions, higher residential
mobility, less extensive social networks , lower levels of social cohesion, and more social
isolation (Coulton et al., 1995; Coulton et al., 1999; Drake & Pandey, 1996; Garbarino &
Sherman, 1980; Garbarino & Kostelny, 1992; Gilbert et al., 2009; Jack, 2004; Whipple &
Webster-Stratton, 1991). Societal factors include not only those related to degree of poverty,
such as economic circumstances, but also societal attitudes toward physical punishment and
violence (Durrant, 2006). Research at MCHP confirms that many of these factors are significant
predictors of infants entering care in Manitoba, including financial difficulties, being in a lone-
parent family with no social support, and maternal alcohol or drug use during pregnancy
(Brownell et al., 2011).
What are the arguments in favor of a public health approach? Firstly, the current
approach of detection, through notifications and investigations, and removal of children to foster
care leads to a chronically over-burdened system (ODonnell et al., 2008). Estimates suggest
that 4 to 16% of children are physically abused each year, and 10% are neglected or
psychologically abused (Gilbert et al., 2009). Only a fraction of this number of cases is currently
APPENDIX 19
12
investigated; policies that suggest enhanced detection as a means to address child maltreatment
will certainly increase the current burden on the system. Resources steered toward better
detection and protection take away from other areas, such as in-home supports and prevention
programs. The recent follow-up of the Auditor Generals Report (Office of the Auditor General
Manitoba, 2012) illustrates this strain on resources and the resulting need to prioritize some
services over others. In response to criticisms that recommendations to improve reporting to
CFSIS have gone unaddressed, Family Services Minister Jennifer Howard claimed that the
government chose to hire more social workers, rather than invest in more computers (Winnipeg
Free Press, September 28, 2012). The intent of a public health approach that focuses on
upstream (preventive) interventions is to reduce the occurrence of child maltreatment in the first
place.
The second argument in favor of a public health approach relates to the fact that only a
fraction of child maltreatment cases come to the attention of child protection authorities
(ODonnell et al., 2008; Gilbert, Woodman & Logan, 2012). Indeed, some suggest that cases of
child maltreatment that come to the attention of child protection agencies and/or involve police
investigations represent only the tip of the iceberg of child abuse and neglect, with the majority
of cases going unreported or unknown (PHAC, 2010; Trocme et al., 2005). Thus, regardless of
policies such as mandatory reporting by all professionals who have contact with children,
detection and reporting of all possible maltreatment is implausible. Universal programming
aimed at improving parenting and family functioning could potentially reduce child abuse and
neglect, not only for those families that might eventually come in contact with child protection
agencies, but also those who wont. A review by Gilbert et al., (2009) documents the long-term
APPENDIX 19
13
serious consequences of child maltreatment, including not only the extreme and obvious cases of
child deaths, but long-term mental and physical health concerns, substance abuse and criminal
activity. Programs that reduced child abuse and neglect at the population level would thus have
far reaching benefits, for children and their families, as well as society at large.
A third argument in favor of a public health approach to child maltreatment involves
economic costs. The old adage an ounce of prevention is worth a pound of cure has been
demonstrated in numerous early childhood development programs that target high risk children
(for example, the Perry Preschool Program (see Schweinhart et al., 2005); the Abecedarian
Program (see Campbell et al, 2012; Muenning et al., 2011; Pungello et al., 2010) and the
Chicago Parent-Child Centers (see Reynolds & Temple, 2008). For example, the Perry Preschool
Program, an intensive 2-year program targeting disadvantaged children and involving both high-
quality preschool programming and home visits, has followed participants for over 40 years and
estimated that more than $16 has been saved for every $1 spent, due to increases in education,
employment and incomes and decreases in welfare and justice system costs (Schweinhart et al.,
2005). There is little cost effectiveness research in the area of child maltreatment (see for
example Meadows et al., 2011); however a study estimating the costs of developing a public
health system for delivering population-wide parenting interventions suggest substantial savings
could be achieved (Foster et al., 2008).
While arguments that involve economic savings are always appealing, society has a
moral obligation to protect children from abuse and neglect in the first place (ODonnell et al.,
2008; Gilbert, Woodman & Logan, 2012). Reading et al., (2009) take this argument one step
APPENDIX 19
14
further and claim that society has a legal right to protect children from maltreatment, and
suggests using the United Nations Convention on the rights of the child (UNCRC) as a
framework for addressing child maltreatment, including preventing its occurrence. Canada
became a signatory to the UNCRC in 1990 and ratified it in 1991, and as such is bound to it by
international law (Wikipedia, nd). Reading et al. point out that the rights-based approach can
compliment the public health approach, providing a legal instrument for implementing policy,
accountability, and social justice, all of which enhance public-health responses. (p. 332).
Providing support to parents is laid out in the UNCRC in Article 18.2:
For the purpose of guaranteeing and promoting the rights set forth in the
present Convention, States Parties shall render appropriate assistance to
parents and legal guardians in the performance of their child-rearing
responsibilities and shall ensure the development of institutions, facilities
and services for the care of children. (p. 5, United Nations, 1989)
As Blackstock (2007) points out, Aboriginal children, who are disproportionately
represented in the child welfare system in Canada, are more often taken into care for reasons of
neglect than abuse, and this neglect is associated with at least two factors that are largely out of
the parents control: poverty and poor housing. Blackstock calls for the enhancement of family
support services to keep children safely at home, accompanied by sustained investments in
community development efforts targeted at poverty eradication and substance misuse (p. 76)
and her call is reinforced by the UNCRC.
Conclusions
APPENDIX 19
15
The knee-jerk response to severe child abuse and individual deaths, like the case of
Phoenix Sinclair, is moral outrage and a need to punish not only the perpetrators of the abuse,
but also the system that allowed the abuse to occur. Policy responses often revolve around
detection and punishment rather than focusing on developing and implementing interventions to
improve conditions for children (Gilbert, Woodman & Logan, 2012). But such interventions are
necessary in order to reduce and prevent child maltreatment.
What would such interventions look like? A public health approach would involve
preventive strategies at multiple levels, from upstream approaches such as social policies
affecting all children and their families to midstream targeted approaches for families and
children at risk, through to downstream approaches involving child protection in cases of severe
maltreatment.

Social policies at the upstream level could involve legislation against corporal
punishment (Gilbert et al., 2009), extended parental leave programs, ensuring access to low cost,
quality child care, economic reforms that reduce the gap between rich and poor (see for example
Marmot et al., 2009), and a guaranteed annual income (see for example Forget, 2011). Parenting
programs with a universal component (for example Triple P see Prinz et al., 2009) are also
examples of upstream interventions that could reduce child maltreatment at the population level.
The benefit of universal, upstream programs is that they have the potential not only to prevent
child maltreatment, but to enhance family functioning and child outcomes at the population level
(ODonnell et al., 2008). Midstream approaches could include targeted home visiting programs,
mental health strategies and services, programs that address domestic violence, and substance
APPENDIX 19
16
abuse programs. Even with extensive and effective prevention programs, downstream or tertiary
responses to severe child maltreatment will likely always be necessary. In these cases, it is
important that the decisions on how to treat severe child maltreatment are based on the best
possible evidence for effective care and outcomes, which may involve intensive family-centred
interventions or removal of the child from the home.
APPENDIX 19
17
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Appendix
Table A1:
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APPENDIX 20. SUPPORTING ALL CHILDREN TO REACH THE MOST VULNERABLE - MCCUAIG | 879
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880 | APPENDIX 20. SUPPORTING ALL CHILDREN TO REACH THE MOST VULNERABLE - MCCUAIG
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