Grandfather guilty
Brian Matthews convicted of manslaughter for shaking 13-month-old grandson Kody Smart
Calling it a “difficult and disturbing case,” Judge Joseph Nadel convicted a Thorold man of manslaughter Thursday in the death of his 13-month-old grandson.
Nadel concluded that based on the evidence, Brian Matthews, a 40-year-old long-haul trucker, violently shook Kody Smart and caused his death.
“Clearly, Brian Matthews did not intend to kill his grandson,” Nadel said. “While I am not obliged to determine why he assaulted Kody, I suspect that he acted out of frustration because the child would not stop crying.
“Matthews got home late Friday night after a long week on the road. He was obliged to wake up relatively early to take care of two young children. One of those children, Kody, cried a great deal. I suspect that Matthews’ store of patience with Kody was exhausted and that his patience became depleted when Kody would not stop crying. Matthews made the fatally bad choice to deal with Kody by violently shaking him.”
Matthews is free on bail and will return to court April 9 for a sentencing hearing. There is no minimum sentence for a manslaughter conviction if a firearm wasn’t used. The maximum penalty is life in prison.
Kody was apprehended by Family and Children’s Services Niagara and placed in Matthews’ care nine weeks and three days before his death.
Matthews had been convicted of child abuse in 1995. The victim was Kody’s father, Brett Smart, who was six months old at the time.
Smart was in the courtroom for the verdict with a group of supporters including his mother, Pamela York.
Matthews also had a large group of supporters including his wife, Jaclyn. She testified on his behalf during the non-jury trial, which was held in Ontario Court of Justice in St. Catharines. Matthews didn’t take the stand.
When Nadel read his verdict, there were audible gasps in the gallery. Pamela York, Kody’s grandmother, was overcome with emotion and ran from the courtroom.
“It hurts even more because I knew something like this was going to happen,” York said. “My grandson suffered. How can someone do that to a baby? They all cry. They are trying to tell you something. It is your job as a parent to figure it out.
“My last visit with Kody was at the FACS building. I told them there was something going on in that home. Kody was screaming and vibrating and shaking. He did not want to go into his car seat.
“I told the worker something was wrong. She told me to shut up and put him in his car seat. She said I was acting like a vengeful ex.
“She could clearly see what was happening with my grandson. That’s my last memory of him. He was screaming in terror not to go back. That should have been investigated.
“I am glad Kody got justice today, but I am hurting beyond belief right now.”
Matthews was defended by lawyers Peter Barr and Kim Vanderlee. Barr declined a chance to comment on the verdict.
Matthews was arrested and charged by Niagara Regional Police in November 2015 following a lengthy investigation.
Emergency crews were called to his home on Thorold Townline Road on July 25, 2015, in response to a 911 call of a child in medical distress.
Paramedics took Kody to St. Catharines hospital. He was transferred by air ambulance to McMaster Children’s Hospital in Hamilton, where he was pronounced dead the following day after doctors removed him from life-support.
Matthews has maintained that a dog caused Kody’s death.
In five different statements, Matthews said one of the family dogs, Duke, a 40.5-kilogram Labrador-bull mastiff cross, jumped over the couch in the living room and knocked Kody over. The fall caused his fatal head injury, said Matthews.
The judge, however, found that theory wasn’t credible. Nadel catalogued numerous differences in what Matthews told a 911 operator, told two paramedics and three Niagara Regional Police officers.
“I reject his statements because as I have tried to explain, they are too inconsistent to be credited,” Nadel said.
Nadel also gave great weight to testimony by Dr. John Fernandes, a forensic pathologist with decades of experience.
“Fernandes said two things that I particularly rely upon,” Nadel said. “First, it was his opinion supported by current medical literature that Kody’s constellation of injuries most aligns with an inflicted injury rather than an accidental one. Second, after what clearly was a thorough search, he could find no reported case where the dog had collided with a child resulting in fatal injuries to the child.”
Furthermore, Nadel said that for Kody’s death to have occurred in the way Matthews described, an entire series of events would have had to happen at just the right time, in just the right sequence, with just the right forces being exerted and just the right deflections. Only then would there have been enough force for the dog to have caused the traumatic brain injury and internal neck injury that Kody sustained.
“This, to my mind, is piling coincidence upon coincidence to such an insupportable degree that the scenario is unbelievable and therefore unreasonable to act upon,” Nadel said.
Smart and his family launched a $750,000 lawsuit against Family and Children’s Services Niagara for giving custody of the child to Matthews despite his conviction for child abuse.
Family also included in launching the suit are Evelyn Salt, Kody’s mother; paternal grandmother Pamela York and her husband, Chris York; and maternal grandmother Georgette Salt. They are seeking $150,000 each in damages under the Family Law Act “to compensate for the loss of guidance, care, and companionship” resulting from Kody’s death.
The case has not been proven in court.
Ann Godfrey, a spokesperson for Family and Children’s Services Niagara, issued a brief statement.
“We are aware of the verdict that was delivered this morning,” she said. “We share in the grief and devastation at the loss of this child, and together with the community, remain committed to the care and safety of children in Niagara,”