A Winnipeg court has rejected an appeal from Samantha Kematch and Karl McKay.
The common law couple was convicted of first degree murder for killing their five-year-old daughter Phoenix Sinclair in 2005.
They argue they should have been found guilty on a lesser charge because they never intended to kill her, and denied forcing her to stay in the basement.
“Phoenix was in the basement for prolonged periods of time but I think just as important there was never any barricade, a door a lock or any sort of impediment to prevent her from coming upstairs,” said McKay’s defence lawyer Mike Cook.
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But appeal court judges say the first degree murder charges still stand.
“There was more than enough evidence for the jury to find that Phoenix was forced to stay in the basement of the family home for extensive periods of time, and even though she was not under lock and key, one cannot set aside the fact that we are dealing here with a five-year-old child,” they ruled
Therefore, the first degree murder conviction stands.
Kematch and McKay now have 60 days to appeal to the Supreme Court of Canada.
“We do not believe she was the cause of death,” said Kematch’s appeal lawyer Leonard Tailleur.
“Mr.McKay was the cause of death, he beat her, there was no dispute about that,” said Tailleur.
Phoenix Sinclair was in the care of child and family services when she was killed.
Her death was not reported until nine months later.
The NDP government has promised a public inquiry into the failings of the child welfare system.
But a provincial spokesperson tells Global News it can’t launch the investigation until the legal process is completely over.
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