Interesting commentary:
http://network.nationalpost.com/np/.../20/david-asper-prisoner-in-her-own-home.aspx
Many are wondering why Manitoba’s Court of Appeal would “waste its time†last week on killers Samantha Kematch and Karl McKay. As far as the public is concerned, Kematch and McKay should probably feel lucky that the rule of law has kept the mob from imposing its own form of justice.
Let me offer my explanation. As it turns out, useful legal principles sometimes can be gleaned from close judicial scrutiny of even the most disturbing case.
Kematch and McKay are the two characters whom a jury found guilty of killing Kematch’s five-year-old daughter Phoenix Sinclair. Mere words can’t do justice in describing the sordid tale of abuse and neglect that befell this poor child. It’s beyond shocking.
In deciding guilt, the jury determined that the killing occurred while the two had forcibly confined the young victim in the basement of her home. Under the Criminal Code, this meant that the defendants fell in one of the categories that permit a finding of first-degree murder — the most serious crime in the Criminal Code. (Other categories of first-degree murder include killing a victim through planning and premeditation, killing a victim while committing sexual assault, terrorism, and killing a police officer.)
One of the arguments advanced in the appeal proceedings was that there had not been any forcible confinement, and therefore the first-degree murder conviction should not stand. In particular, the defence contended that the five-year-old victim was not forced to remain in the basement of her home but, rather, voluntarily sought refuge there from the abuse. According to this argument, the crime could only have been second-degree murder or manslaughter.
Such distinctions may seem arcane. But they reflect important moral decisions that Canadian legislators made in regard to the degrees of malice and evil that inform different types of murder. Moreover, the issue has real-life ramifications for defendants. A conviction for any of these crimes imposes a life sentence. However, a second-degree murder convict is not eligible for parole for a minimum of 10 years. In the case of first-degree murder, 25 years is the minimum. Courts sitting in judgment of future cases may look to Manitoba’s Court of Appeal for guidance in interpreting the definition of forcible confinement in the context of physically and psychologically helpless children suffering from child abuse within a home.
That sounds like a lot of lawyer words. But in the end, it may mean that the life of Phoenix Sinclair will have some larger meaning, and perhaps even indirectly help society address the situation of similarly suffering children before they are killed.
My own view is that Phoenix Sinclair was indeed forcibly confined. What, realistically, could a five-year-old girl in her situation do?
Can she leave? Where would she go? Does an average five-year-old, let alone a massively abused one, have the maturity or experience to plot an escape from an abusive household? Even if it were possible for the child to escape in some way, would the possibility of getting caught and then suffering further and more escalated beatings possibly weigh on her mind?
Surely it must be that a young, abused child should be treated as a prisoner in this sort of criminal context. Abusive circumstances trigger a transformation from the normal reliance and dependency between child and caregiver into one of prisoner and prison-keeper.
In fact, the question of whether the child was confined to the basement seems besides the point. Surely, whether the child hides in a closet or a basement, he or she remains a prisoner as defined by the boundaries of the home. The entire home itself becomes the prison, and so long as the child remains within it there can be no safe haven. An inmate in a large penal institution is no less an inmate when he or she moves from his cell to the dining hall.
If the Manitoba Court of Appeal upholds the original conviction, it will send a warning to others that whatever else they might be doing that is criminal, when it leads to children becoming prisoners within their own homes, further criminal sanctions could be applied.
One of the core principles within our legal system is that each of us has the right to be free and possess human dignity. There is no way that Phoenix Sinclair lived her life with any degree of this kind of freedom or dignity. To suggest she somehow found it within the confines of the basement in her home is an argument that must fail.