Kody’s grand­fa­ther guilty

Brian Matthews con­victed of man­slaugh­ter for shak­ing 13-month-old grand­son Kody Smart

The Standard (St. Catharines) - - FRONT PAGE - BILL SAWCHUK STAN­DARD STAFF

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-yearold 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,”

Kody Smart

VIDEO IM­AGE

Brian Matthews is shown at right dur­ing an in­ter­ro­ga­tion in this im­age cap­tured from video.

SUP­PLIED PHOTO

Kody Smart is shown at age 13 months be­fore dy­ing of head in­juries.

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