Judge shakes up trial with remarks
Closing arguments in toddler death case could come as early as today
Remarks from the judge sent both sides scrambling in the manslaughter trial in the death of Thorold’s 13-month-old Kody Smart.
Wednesday began with lawyer Peter Barr informing Judge Joseph Nadel the defence was going to rest without calling any witnesses.
Under normal circumstances, both sides would have followed with closing remarks because the Crown wrapped up its case Tuesday.
However, before that could happen, Nadel warned he had some remarks that might cause Barr to reconsider his plans.
“After you hear what I have to stay, you may need some time to properly inform your client of his options,” Nadel told Barr.
Nadel then suggested that Brian Matthews may be criminally negligent in Kody’s death, and therefore guilty of manslaughter, for leaving the toddler unsupervised with an 80-pound dog — even though that theory wasn’t advanced by the Crown.
Crown attorney Cheryl Gzit used her witnesses to try to prove that Matthews assaulted his grandson and his actions were responsible for Kody’s death.
Matthews, 39, has never wavered in blaming the family dog, an 80-pound Labrador-bull mastiff named Duke. Matthews said the dog jumped over a couch and knocked Kody to the ground, which caused head injuries which proved fatal.
A paramedic and two police officers all previously testified that Matthews told them Kody was injured after he was bowled over by the dog. A pediatrician who examined Kody before he died, Dr. Nura Hawisa, and the forensic pathologist who performed the autopsy, Dr. John Fernandes, both testified to Kody’s massive head injuries.
Crime scene photos entered as exhibits earlier in the trial showed Kody was confined to an area in the living room formed by abutting couches and a children’s playkitchen set that was wedged into place to fill the only gap.
Matthews, 39, was arrested and charged by Niagara Regional Police in November 2015 following a lengthy investigation.
Emergency crews were called to Matthews’ home on Thorold Townline Road on July 25, 2015, in response to a 911 call for a child in medical distress.
Paramedics took Kody to St. Catharines hospital before an air ambulance transferred him to McMaster Children’s Hospital in Hamilton.
Doctors decided to remove Kody from life-support the next day.
The trial resumes this morning. If Barr decides not to call any witnesses, closing arguments will likely begin.