Court File and Parties

Date: January 11, 2018

Information No.: N15-3663

Ontario Court of Justice (at St. Catharines, Ontario)

Between:

Her Majesty the Queen

- and -

Brian Frederick Matthews

Counsel:

• Ms. C. Gzik for the Crown
• Mr. P. Barr and Ms. K. Vanderlee for the accused

Reasons for Judgment

NADEL, J.:

Introduction to the Issue

[1] Kody Smart, (Kody) was born on June 7, 2014. He was still 13 months old on July 5, 2015 when he suffered a traumatic brain injury, (TBI), while being cared for by his paternal grandfather, Brian Matthews, (Matthews). Kody's traumatic brain injury caused his death on July 26, 2015. The Crown alleges that Matthews assaulted Kody and that that assault caused Kody's fatal brain injury. The information charges Matthews with manslaughter, contrary to s. 236 of the Criminal Code in that Matthews "did unlawfully cause the death of Kody Smart".

[2] Matthews told his wife, a 911 operator, a paramedic and three different police officers that one of the family's dogs knocked Kody down and that is how Kody's injuries were caused. He denied assaulting Kody in any way. He maintained that the youngest and largest of the family's three dogs, Duke, (said to be an 80 pound Labrador retriever- Bullmastiff cross), caused Kody's injuries. The defence position is that this was an unfortunate accident for which Matthews is not criminally culpable.

The Family Constellation

[3] Matthews turned 40 on December 6, 2017. He is married to Jaclyn Matthews who will turn 38 in April of 2018. The couple married formally in August of 2007. Each had children from prior relationships and they had a son together. That son, Daniel, was not present when Kody was injured and Jaclyn Matthews' other son did not reside with them.

[4] Only Matthews' son, Taylor Matthews, 19, was present for the events leading up to when Kody was left in Matthews' care.

[5] Matthews had another son, Brett Smart, who had fathered two children born to two different mothers. The eldest of Smart's two children was a little girl named C.. C. was born on […], 2013. She was 19 months' old in July of 2015. She had been apprehended by Family and Children's Services, (FACS), and placed with Matthews and his wife on March 24, 2014. Smart's other child, Kody, was born by Evelyn Salt. Kody was also apprehended by FACS. Kody was placed in Matthews' and Jaclyn Matthews' care on May 13, 2015, just nine weeks and three days before his death.

[6] Three dogs were also part of the Matthews' household. The family inherited Casey, a 10 pound miniature Schnauzer from Matthews' mother. Next, they acquired Bentley, near the end of 2009, when Bentley was about a year old. Bentley was a "puggle", a poodle-beagle cross. Then, in September of 2011 they acquired Duke, a Labrador retriever-Bullmastiff cross, from a neighbour when that dog was only 21 days old. Duke never attended any formal obedience school; he was trained by the Matthews.

The Occupations and Work Schedules of the Matthews

[7] In July of 2015 Matthews was working as a long distance truck driver. He would leave the family home on Thorold Townline Road in Thorold, Ontario on Sunday afternoons and return home for the following weekend on Friday evenings. Jaclyn Matthews worked as a personal support worker. She worked every second Saturday and Sunday from 6:00 a.m. to 2:00 p.m. at a retirement home located about a 20 minute drive from their home.

Taylor Matthews' Evidence

[8] Taylor Matthews' bedroom was in the basement of the home, which is where the dogs slept; but, otherwise, they had the run of the house. His parents and C. and Kody had bedrooms on the ground level of their bungalow.

[9] July 25th was a Saturday and Taylor had to work at a St. Catharines' restaurant that morning. He got up between 7:30 and 8:00 a.m. because he needed to bicycle to work from Thorold for a 9:30 a.m. arrival time. After getting up, he toileted the three dogs individually. That took about 30 minutes. Then, he got something to eat and said goodbye to his father before leaving for work.

[10] When Taylor went into the kitchen his father was feeding C. and Kody breakfast. The children were strapped into their highchairs. While Kody could get some food into his mouth by himself, he was usually fed by an adult. Neither child could get into or out of their highchairs. Each had to be lifted in and out by an adult.

[11] Taylor said that Kody could not walk unaided. He could take steps if someone held onto his hands but his usual mode of movement was by crawling. However, Taylor said that Kody could pull himself up to standing against furniture. By temperament, Kody cried "a lot" especially compared to C.. When Kody cried he could be distracted by picking him up, giving him toys or by blowing puffs of air onto his face.

[12] That is what Taylor did. He amused Kody and got him to laugh by blowing puffs of air onto his face. Taylor then said goodbye to his father and left. All was well at that time, which Taylor said was about 8:00 a.m. (sic).

[13] While the dogs had the run of the house, Taylor did not recall where any of them were when he left for work.

[14] Taylor described Duke as a "well-muscled" dog and said that he walked him on a leash with a choke-collar. Duke would pull after anything that moved and he was strong enough to pull Taylor off balance if Taylor was caught unaware and was not braced to resist Duke's pull.

[15] Taylor described how Kody and C. would regularly be locked into the living room of the home. That was accomplished by the configuration of the furniture augmented by a large plastic toy-kitchen that would be wedged between the end of a loveseat and a wooden hutch, so that neither child could crawl out of or walk out of the living room floor space into which they were then corralled.

Jaclyn Matthews' Evidence

[16] On Friday, July 24, 2015, Jaclyn Matthews went to bed at about 8:45 p.m. Matthews got home from his week on the road a few minutes later. They had a short conversation while she lay in bed and Matthews was in their kitchen. Their chat did not deal with who would be caring for the children the next day. Mrs. Matthews left her husband to infer his child-care responsibilities from her work schedule that was marked on a calendar hanging in the kitchen.

[17] She had put Kody to bed on that Friday night, dressing him in a one-piece pajama outfit, a "onesie," that had Capri-length leggings but no feet in the garment. She had to place Kody's arms and legs into it as he could not do that himself.

[18] On Saturday, July 25, 2015, Jaclyn Matthews left her home at about 5:25 a.m. for her weekend shift at the retirement home in Niagara Falls where she worked. No one else was awake when she left for work.

[19] During her shift she exchanged the following text messages with her husband:

Time	From	To	Text
9:42:13	Jaclyn Matthews	Brian Matthews	"How are kids"
9:42:52	Brian Matthews	Jaclyn Matthews	"Fine"
9:44:47	Jaclyn Matthews	Brian Matthews	"Is kody crying"
9:45:07	Brian Matthews	Jaclyn Matthews	"No"
9:45:24	Jaclyn Matthews	Brian Matthews	"That's good"

[20] She subsequently received a page to take a telephone call prior to her lunch break. It was from Matthews, who sounded scared and panicked. He told her that their dog had jumped over the couch and knocked into Kody, who then fell and hit his head. She could hear Kody's laboured breathing as she spoke to her husband. She told him to call 911 and then rushed home. She clocked out of work at 10:27 a.m. and sped home driving well in excess of the posted speed limits. She arrived at her home at the same time as the first paramedics, who were pulling into the driveway at 10:38 a.m. by their watch.

[21] Mrs. Matthews was met by C. at the front door. She gathered her up and placed her in her crib. Then she ran into the kitchen and took the phone from her husband, (who was on the line with a 911 operator), and hung up. She watched her husband doing CPR on Kody who was on the kitchen table wearing only a diaper.

[22] The EMS responders took over CPR and control of Kody. Mrs. Matthews then packed a bag and followed the ambulance to the local hospital.

[23] Jaclyn Matthews identified two pieces of Kody's clothing, (a snap-closure body suit and a pair of green shorts), that were lying on the floor in a kitchen doorway, near the dogs' food dishes. Those items of Kody's clothing were not on the floor by the dogs' food dishes when she left for work.

Brian Matthews' Statements

[24] As noted above, Matthews made statements to the following six people:

1. his wife, Jaclyn Matthews;
2. a 911 operator;
3. Brooke O'Neill, a paramedic who responded because of the 911 call;
4. P.C. Glen Hamilton, the first police officer to speak with Matthews;
5. Detective Constable Brandon Southcott, who audio-recorded an interview with Matthews at the first hospital Kody was taken to; and,
6. Detective Constable Lisa Isherwood, who interrogated Matthews on the morning of his arrest.

[25] Matthews' statements to the first five persons all occurred on July 25, 2015. His statements to Isherwood were made on November 2, 2015.

[26] By way of anticipation, the Crown's position is that Matthews assaulted Kody and that these statements are lies. The Crown says that is why they are contradictory and inconsistent. On the contrary, the defence says that in these statements Matthews was attempting to recount the truth about what happened and that he was consistent in what he said. To the extent that there are any inconsistencies among his statements those variances are the innocent consequence of the emotionally charged circumstances under which Matthews was speaking or the consequence of the passage of time between what he said on July 25, 2015 and his interrogation on November 2, 2015.

[27] Given the significance of these utterances to the respective positions of the parties a detailed recitation of these utterances must be undertaken.

1. What Matthews Said to His Wife

[28] The first statement that Matthews made to anyone about how Kody came to be injured was made by him to his wife in a telephone call that he made to her some time after 9:45 a.m. on July 25, 2015. As noted in footnote 1, s. 4(3) of the Canada Evidence Act privileges a wife from being compelled to disclose any communication made to her by her husband. Jaclyn Matthews claimed that privilege. Despite her general exercise of this privilege, after obtaining independent legal advice, the gist of the information imparted to her by Matthews in this telephone call was received with her consent.

[29] That information was that the dog had jumped over the couch and knocked into Kody, who then fell and hit his head.

[30] Where Matthews was in his home or what telephone he was using when he made this call was not identified in the evidence. What is known is that Kody was near the telephone when Matthews made this call because Mrs. Matthews could hear Kody's laboured breathing. She described the sound that she heard as being like someone having a seizure whose tongue has fallen into the back of their throat. She testified that she had heard similar breathing in her work at the retirement home and she described what she heard as a "death rattle".

[31] The precise time that Matthews placed this call to his wife was not identified, although she said that she received it before her lunch break. However, the time of her lunch break was not identified. Further, she was unable to say how much time passed between her last text to Matthews at 9:45:24 and this telephone call.

[32] It is clear to me that it took some time for Matthews to speak to his wife. His call had to be placed to her workplace line and not to her cellphone, as she was not allowed to carry her cellphone while on duty at the retirement home. Matthews had to call the retirement home and ask that she be paged to come to the phone.

[33] When Mrs. Matthews heard her name being paged she was assisting a resident in that resident's room. She had to take her leave of that resident and then walk down the hall to attend at a nursing station located some unspecified distance from the room she had been working in.

[34] The 911 call, Exhibit 1, shows that Matthews' initial call to 911 was placed just a few seconds before 10:29 a.m. and that the 911 ambulance operator began speaking with him at 10:29:05 a.m. Mrs. Matthews testified that she clocked out of work at 10:27 a.m. and that she arrived at her home as quickly as she could. The 911 call shows that she began speaking with the 911 ambulance call-taker at approximately nine minutes and 17 seconds after the call commenced, making that time to be 10:37:22. She arrived at her home at the same time as the first team of paramedics was entering her driveway, which was at 10:38 a.m. by their watch, making the 911 call and the paramedics' times, relatively synchronized.

2. What Matthews Said to 911

[35] During this call Matthews was asked several questions and made the following answers or comments:

911: Okay. We've got the help started. Tell me exactly what happened.

Matthews: It's my grandson. He was, he was sitting on the floor or standing up against the, the couch earlier.

911: Yeah.

Matthews: My dog jumped up over the couch …

911: Okay.

Matthews: … knocked him on the floor. He hit his head.

911: Okay.

Matthews: Okay, he was sitting on the floor, he just started shaking and fell back. He was sitting on the floor later, like he was fine; he didn't cry or nothing after that. He was sitting on the floor, he just started shaking and fell back.

[36] The content of this Exhibit also demonstrates that C. was not locked into the living room when Matthews called 911. The dogs were also not locked into that room when he called 911.

3. What Matthews Said to Paramedic Brooke O'Neill

[37] O'Neill, a paramedic with four years' experience, and her partner were dispatched to the Matthews' home. They were told the call was for a child having a seizure although they did not witness Kody exhibit any seizure activity. At 10:40 a.m., O'Neill found him on the kitchen table, only wearing a diaper. He was flaccid, unresponsive and exhibiting agonal breathing; i.e., taking only about six breaths a minute.

[38] O'Neill testified that within about the first 90 seconds of her attendance in the home, she asked Matthews what happened "three times" because she felt that the history of the incident that he related to her did not match the "mechanism of injury" that she was seeing. Matthews told her that Kody was knocked over by a dog, got up, started playing and two minutes later had a seizure and became unresponsive. She said that he told her that same thing on each of the occasions when she asked him to tell her what had happened.

[39] She understood him to be telling her that the child fell at ground level and that the child was leaning up against the couch when he fell. To her mind that explanation didn't match the child's presentation.

[40] A more senior paramedic present, who showed up after O'Neill arrived, told her that the child had a "blown pupil"; i.e., fully dilated and non-reactive to light. O'Neill's experience was that this presentation was indicative of a head injury and she felt that it would be difficult to acquire that kind of injury from a fall at ground level.

[41] Because of her concern that "the mechanism of injury didn't really match the story" she repeatedly asked Matthews what happened so that she "wasn't missing anything in regards to our treatment."

[42] O'Neill did not notice any obvious trauma to Kody.

4. What Matthews Said to P.C. Glen Hamilton

[43] P.C. Glen Hamilton, a patrol officer with 23 years of experience, was dispatched to the Matthews' home, arriving there at 10:39 a.m.

[44] Hamilton had a brief conversation with Jaclyn Matthews, in the presence of her husband, about how Kody came to be in their care, his medical history and what had happened that morning. She told Hamilton that she got a call from her husband who told her there had been an accident with the dog.

[45] When Mrs. Matthews went off to prepare a bag, as the child was going to be transported to hospital, Hamilton had an opportunity to speak to Matthews.

[46] Hamilton did not record his conversation with Matthews on a verbatim basis and stated that he could not recite it verbatim either. Rather, he testified that his notes reflect the information that he received from Matthews during their conversation. On that basis, Matthews imparted the following information to him:

• Their yellow Lab (sic), Duke, was in the living room;
• Kody was in the living room playing with his toys;
• Matthews was in the kitchen;
• Duke bounded over the loveseat;
• Matthews heard Kody cry;
• He went into the living room to check on Kody;
• He picked Kody up and held him for a few minutes;
• Kody stopped crying and seemed okay;
• He put Kody down and Kody started playing with his toys again;
• Matthews then went back into the kitchen;
• After a length of time he noticed Kody unconscious on the floor.

[47] Hamilton asked Matthews if he knew how much time passed between when he put Kody back down on the floor in the living room and when he found Kody unconscious. Matthews shook his head in the negative, as if to say he didn't know. At that point Matthews told Hamilton that he, (Matthews), had lost track of time.

[48] Hamilton then asked Matthews to give him an estimate of that interval. Matthews said about 20 minutes passed from putting Kody back down to when he found Kody unconscious and called for assistance. In addition, Hamilton asked Matthews to clarify if Matthews had actually witnessed Kody getting hit by the dog. Matthews replied that he had not actually seen that happen. He was merely assuming that is what occurred.

[49] After receiving this information from Matthews Hamilton verbally repeated it twice, to two different sergeants who attended the scene, before recording this information in his duty-book. Hamilton documented the information that Matthews gave to him at 11:05 a.m.

5. What Matthews Said to Detective Constable Brandon Southcott

[50] On July 25, 2015, Detective Constable Brandon Southcott, (Southcott), met the Matthews at the St. Catharines' Hospital. Southcott conducted the following audio-recorded interview of Matthews that was entered as Exhibit 4.

6. What Matthews Said to Detective Constable Lisa Isherwood

[51] Early on the morning of November 2, 2015, Matthews surrendered himself to the Niagara Regional Police Service. He was arrested for the crime of manslaughter and was interrogated by Detective Constable Lisa Isherwood. This interrogation commenced at 8:20:53 a.m. and lasted until 12:20:04 when Matthews was returned to a custody cell.

[52] Despite having been advised by his counsel not to say anything, Matthews responded to many of the questions or comments put to him by Isherwood. These utterances were conceded to be voluntary.

[53] During the course of this interrogation, Isherwood cajoled, urged or suggested to Matthews that he was guilty and ought to admit to having struck Kody. She did so using a variety of techniques and ploys including challenging Matthews' denials by using the authority of the medical reports. Isherwood was incredibly persistent. She put the suggestion that he was guilty to him on at least 23 occasions. On every such occasion Matthews consistently denied having struck, hit or harmed Kody.

[54] The transcript of this interrogation is 70 pages long. It was filed as Exhibit "11 a". I have scanned and incorporated portions of it that deal with Matthews' statements about caring for Kody on July 25, 2015, Matthews' comments respecting other statements he made on July 25, 2015 and some comments he made about Kody's mobility, and how the dogs interacted with the children.

Dr. Sinton

[55] The first medical witness was Dr. Geoffrey Sinton, (Sinton), the family physician who cared for Kody throughout his short life. Kody's mother was a patient of Sinton's so he became Kody's family doctor. The Crown did not seek to qualify Sinton as an expert witness.

[56] Sinton's associate saw Kody at three-days' of age when he was a healthy newborn. Kody was never noted to have any form of bleeding disorder. The Matthews brought Kody to Sinton on June 13, 2015 for his 12-month check-up. Kody had been having some diarrhea but the Matthews told Sinton it had settled. They told him that Kody was socializing, getting increased activity and was scheduled for an eye examination.

[57] On that visit Kody weighed 9.73 kilograms, had a height of 75 centimetres and a head circumference of 48 centimetres. His weight was at the 53rd percentile, his "height age" or length was at the 38th percentile and his head circumference was at the 93rd percentile (as compared to other children of that age). Despite concerns voiced by the Matthews, Kody's eye examinations were normal, according to Sinton.

[58] Sinton asked the Matthews if Kody was meeting his significant milestones and Sinton documented that Kody was responding to his own name, that he was crawling or bum-shuffling, that he was pulling to a stand with support and that he showed distress when separated from his caregiver. Some of these capacities were based upon the reporting of the Matthews and some Sinton witnessed for himself, though which were reported to him and which he saw for himself were not delineated during his testimony.

[59] Sinton was advised by Mrs. Matthews that Kody could stand when an adult lifted him to a standing position but he could not get upright and stand independently.

[60] The grandparents reported to Sinton that Kody did not understand simple requests like, "where is the ball?" nor was he making at least one vowel and consonant combination, nor, of course, saying three or more words, nor was he following a person's gaze to reference an object; i.e., he was not looking to see what an adult was looking at.

[61] As a result of feeding issues that arose when he was in the care of his natural parents, Sinton had ordered a hemoglobin blood count to see whether Kody had any form of anemia. The results showed that Kody was slightly anemic so Sinton ordered an iron supplement in liquid form be given to him. Despite being slightly anemic Sinton did not believe this condition would make a great difference to Kody's energy level.

[62] In answer to a question that I posed Sinton explained that while Kody was not physically sick he was not a well child as he probably had an iron deficiency. In addition, Kody had not reached acceptable cognitive milestones.

[63] Sinton scheduled a follow-up visit for Kody on June 25, 2015. Kody was brought to that visit by Mrs. Matthews and they discussed his diet recommendations and suggestions for Kody, who did not seem to want to chew foods. Sinton did not note any further or other concerns. From what he was told he believed that everything was going well.

[64] Sinton's file contained a developmental report prepared by Nancy Storm, (Storm), an infant development therapist dated July 14, 2015 detailing her assessment of Kody on July 13, 2015. Storm opined that Kody had developmental delays in communication, social, motor and cognitive skills and that his development in those areas showed delays that were scattered between six and 12 months, although the particulars or specifics of the various delays was not adduced into evidence. Storm's report, described Kody as being able to cruise along furniture, that is to say, walk sideways while holding onto an item of furniture.

The Expert Evidence

[65] The Crown called two physicians who were qualified as expert witnesses. The first was Dr. Nura Hawisa, (Hawisa), a pediatrician. The second was Dr. John Fernandes (Fernandes), a forensic pathologist.

Dr. Hawisa

[66] On July 25, 2015, the paramedics brought Kody to the St. Catharines' Hospital site of Niagara Health System. Upon being assessed there, Kody was quickly transported by air ambulance to the Pediatric Intensive Care Unit, (PICU), of McMaster Children's Hospital in Hamilton, Ontario, where he remained until his death on July 26, 2015.

[67] It was on that date that Kody's treating physician in PICU, Dr. Karen Choong, (Choong), contacted the Child Advocacy and Assessment Programme, (CAAP). Hawisa is a member of CAAP.

[68] After a contested voir dire on her qualifications, I found Hawisa to be a duly qualified medical practitioner, who had specialized in pediatric medicine. I found she had the training and experience to be qualified to offer opinion evidence in the areas of the observation, the investigation, the interpretation and the causation of illness and injury in children.

[69] I was satisfied that her opinions were offered in good faith and that the opinions she offered were honestly held, that she believed them and believed that she had a rational basis for promoting and offering them. As I said during the voir dire, whether I accepted the conclusions that she drew was a matter to be determined at a subsequent time, after hearing all of the evidence and the submissions of the parties.

[70] Hawisa adopted her written consultation report, which was filed, on consent, as Exhibit 6.

[71] Hawisa's method was to identify each aspect of Kody's presentation and then attempt to determine the cause for that presentation. In doing so she sought to rule out various causes for his presentation if that was possible. She had access to his complete medical record from birth to his demise on July 26, 2015.

[72] Those records included a June 2015 report from the optometrist who assessed Kody due to the Matthews' concern that Kody was squinting and that his eyes seemed to be abnormal. In this report the optometrist identified no retinal abnormalities and no eye abnormalities other than "strabismus", that is to say, squinting or the misalignment of his eyes, (something that members of the Matthews' family called being googly-eyed). Hawisa said that that had nothing to do with Kody's presentation at PICU.

[73] Hawisa's opinion was that Kody suffered a traumatic brain injury, (TBI), which was caused by Kody having been assaulted through a violent shaking possibly exacerbated by having his head impacted against a hard surface, during the shaking incident. Despite repeated attempts by Ms. Vanderlee to have her change her opinion Hawisa refused to accept that Kody's condition may have been accidentally precipitated by an impact or a series of impacts with the family dog.

Kody's Eyes

[74] She examined Kody's eyes and found that his pupils were dilated but their dilation was not caused by any drug administered to him.

[75] Kody exhibited extensive retinal hemorrhaging. He was displaying "retinoschisis". This condition was diagnosed by PICU's consulting ophthalmologist. Both of Kody's retinas were almost completely obliterated by hemorrhaging that existed in all quadrants of each of his retinas.

[76] Retinoschisis results from forceful traction that causes the layers of the retina to separate from each other. The separated layers fold and cause a schisis or cavity. The significance of a diagnosis of retinoschisis is that this condition is only caused by traumatic injury.

[77] The TBI that Kody acquired was not caused by any pre-existing bleeding disorder; but, his TBI did produce a bleeding disorder or coagulopathy that was secondary to his TBI. Likewise, his raised intracranial pressure was a consequence of an initial traumatic act and not caused by any pre-existing medical disorders, in her opinion.

[78] Having looked for and having ruled out any non-accidental or organic causes of his presentation Hawisa opined that the only explanation that could account for his presentation was a violent shaking of his head and neck areas; that intentionally inflicted trauma was the only reasonable conclusion to be drawn from his presentation.

Intracranial Pressure, Cerebral Edema, Hypoxia and Subdural Hemorrhages

[79] Likewise, Kody's increased intracranial pressure was also the consequence of an application of force upon him. That pressure was secondary to the assault.

[80] In arriving at her conclusions Hawisa was aware of and took into account that Kody had been diagnosed with anemia. She was of the view that it had no bearing on his coagulopathy, which, she concluded, was caused by the trauma to his brain. Kody's TBI was the primary injury but it resulted in secondary abnormalities including increased intracranial pressure due to brain swelling, (cerebral edema) and blood clotting abnormalities, (a coagulopathy).

[81] Similarly, she was of the view that while Kody may have been assessed as having low muscle tone, because he did not have any pre-existing neurologically caused muscle wasting, she was not prepared to accept that having low muscle tone would make him more susceptible to greater injury from any application of force, regardless of how that force was inflicted. In her view Kody's diagnosis of low muscle tone, if it was that, was not a factor to be concerned about because he had adequate motor function.

[82] From the reports that she read Kody was a mobile and active child, not a weak child. Moreover, in her view, even if he was weaker than other children of the same height and weight that would not have made any significant impact on his ability to withstand blunt trauma. In her opinion this allegation of weak muscle tone was a minor factor that did not influence or change her assessment or opinion.

[83] Frankly, this was an aspect of her testimony that I found troubling. Hawisa's refusal to accept the reasonable suggestion that if a hypothetical child had low muscle tone that would make that child more susceptible to injury is troubling. Nonetheless, Sinton said that physically, (as opposed to intellectually), Kody was normal and reaching his physical milestones without delay so that from a physical perspective Hawisa's opinion makes no practical difference to the facts, if Sinton's evidence is accepted. Nonetheless, Hawisa's failure to respond reasonably to a change in hypotheticals remains a concern.

[84] There was another area of her testimony that I also found concerning. Kody had some small facial bruising along his jaw line. These bruises were in the area of Kody's face that was in contact with the airway mask used by the paramedics or in contact with the hands of the paramedics to hold the airway mask in place.

[85] Hawisa refused to accept the suggestion that these small facial bruises might have been caused by the pressure exerted by a paramedic to keep that airway mask in place. Hawisa's refusal to accept this obvious and in my view likely explanation for these bruises was troubling, given that the mask had to be held in place by pressure as testified to by a paramedic witness. Additionally, Kody's coagulopathy disorder increased his tendency to exhibit bruising, according to Dr. Fernandes, making that explanation for these bruises all the more likely.

[86] There was another area where Hawisa refused to accept an innocent explanation for some bruises on Kody's body. Matthews had performed chest compression on Kody on the kitchen table following instructions from the 911 operator. There was some vague bruising to Kody's back but Hawisa refused to concede that it may have been caused by that process. (Dr. Fernandes had no difficulty agreeing with that suggestion and it is an explanation of those marks that seems likely to me.)

[87] I got the impression that Hawisa was wedded to her opinion that Matthews assaulted Kody and that she was not prepared to depart, even an iota, from that conclusion. Her failure to respond reasonably to reasonable suggestions gives me pause and causes me to treat the opinions I have identified with skepticism.

[88] On the issue of accidental trauma she wrote, (and during her testimony adopted), the following portion of her report beginning at page 15 of Exhibit 6:

"Significant accidental head trauma may also be associated with retinal hemorrhages although they are typically few in number and located in the area of the retina surrounding the optic nerve. The amount of force required to cause such retinal hemorrhages is an area of current controversy. There is, however, no evidence that the type of hemorrhages seen in Kody can result from minor or even moderate degrees of accidental head trauma such as short falls. They would not have occurred as a result of the reported impact between his head and the floor or the dog."

[89] When asked why she held this opinion Hawisa said that the extensive retinoschisis observed in Kody had never been seen by her in her clinical practice nor reported in the literature as the consequence of a short fall, i.e. a fall from the standing height of a child. So, her opinion was that it was implausible to have happened as had been described to her.

[90] The Crown took Hawisa through her opinion about Kody's presentation detailing his cerebral edema or swelling of the brain. While Hawisa acknowledged that cerebral edema can be caused by many different mechanisms she was able to eliminate infection, inflammatory or metabolic issues as being the basis for that aspect of Kody's presentation. The consequences of brain swelling can include headache, lethargy, vomiting, seizures and reduced consciousness that can lead to frank coma.

[91] Consistent with her prior conclusions, Hawisa was of the view that Kody's brain swelling was a consequence of being violently shaken and this swelling, in turn, led to further hypoxic, or oxygen deprivation damage to his brain and consequently to other bodily systems that are controlled by brain function.

[92] More specifically, Hawisa was of the opinion that the hypoxic injury that Kody suffered from was not the primary cause of his presentation. Rather, she was of the view that his brain injury was caused by trauma. As she put it in that portion of her report that defence counsel had her read into the record:

"There are innumerable mechanisms by which traumatic forces can be applied to a young child or infant's head. Severe direct impact trauma such as from a motor vehicle collision, multi-story fall or inflicted, direct impact trauma can cause such injuries. There is a large body of evidence demonstrating that repetitive, multi-planar acceleration/deceleration forces such as from violent shaking are capable of causing severe brain cell injury and cerebral edema. Some experts interpret the available data as indicating that some type of head impact is required to generate sufficient deceleration forces although large published series of perpetrator confession cases refute this assertion. In any case, the forces required are far beyond the capacity of 1 year-old infant (sic) to generate on his own. If these forces were the result of an accidental event, this very significant occurrence would clearly be recognized as exceptional by a caregiver and readily recalled as such."

[93] I understood Hawisa to be saying that if Kody had been injured by an accident with the dog as Matthews said, then Matthews would have immediately recognized this collision to be a very significant occurrence and one that he would clearly have recognized as being an exceptional event.

[94] In Hawisa's view, while it had reportedly been speculated that Kody was knocked down by a dog prior to his neurologic deterioration, if such an event did happen as speculated, i.e. Kody being knocked over from a standing or sitting position by a dog, it would be entirely insufficient to explain the severe and subsequently fatal brain injury that he experienced.

[95] Ms. Vanderlee urged that the suggested alternative explanation for Kody's presentation, a collision with a dog, was a complex event, with the dog running at some speed and striking Kody who was then propelled into the couch from which he rebounded off onto the hardwood floor. Hawisa was not to change her opinion given this scenario. Her view, despite her lack of bio-mechanical expertise, was that such a scenario would be insufficient to develop the forces and velocity required to result in Kody's presentation.

[96] Hawisa was of the view that more significant forces would be required to cause Kody's presentation than those generated by daily living activities engaged in by children, such as jumping onto and then falling from a couch, for example, and by implication being bumped into and knocked down by the family dog.

[97] Interestingly, when asked how the alleged incident with the dog and the child had been described to her, Hawisa said she had been told that Kody was said to have been struck by the dog and then fell backwards hitting the back of his head on the floor.

[98] When asked to explain the basis for her opinion that getting knocked over by a dog from a standing or sitting position would be entirely insufficient to explain the severe and subsequently fatal TBI that Kody experienced Hawisa testified that the force from a fall that would be required to result in Kody's presentation would have to have caused some external trauma such as a skull fracture or external laceration, at least, and that Kody did not exhibit any sign of external head impact.

[99] When the fact that Kody exhibited a forehead bruise was put to her, Hawisa said that forehead bruises are very common in children and that such a bruise is "non-specific but to have his type of brain bleed it would not be from such a height that Kody has." (sic) In addition, she added that her review of the literature and her experience showed that a focal impact does not cause the kind of extensive brain injury that Kody suffered; that he had extensive and generalized changes to his brain that were inconsistent with a focal impact.

[100] Turning to the subdural hemorrhages that the imaging of Kody's skull revealed Hawisa concluded that "considering all available medical information, the best, and only plausible explanation for Kody's subdural hemorrhages is traumatic head injury. An accidental injury of adequate severity to explain the bleeding has not been provided. As such, it is highly suspicious for severe inflicted head injury."

Opinion versus Certainty

[101] Ultimately, when directly challenged by Ms. Vanderlee that Hawisa could not actually say to a reasonable degree of medical certainty that it could not have happened via contact initiated by a dog Hawisa conceded that she "can't be certain that it didn't happen (in that fashion) but the medical findings don't make sense and are not explained by such mechanism." She remained anchored to her opinion that the dog accident scenario would not account for the observed injuries. But, she did allow that one can only be certain if one is present to witness the event for oneself.

[102] Likewise Hawisa was not prepared to accept that this was a medically difficult case. She accepted that it was a medically complex case but not a "difficult" one from a medical perspective. From that perspective one gathers information and physical findings, including laboratory and diagnostic imaging results to achieve a diagnosis. In her view Kody's condition was not a rare presentation. The only difficult part was being able to say to a 100% certainty what caused these injuries.

[103] Despite being resolute in denying the plausibility or even the possibility that "the dog did it", Hawisa was completely unfamiliar with Labrador retrievers. During an overnight recess she had to Google the breed to see what one looked like. Hawisa did not own a dog nor was she ever raised in a household that kept a dog as a pet. Clearly, she had no idea about the size or strength of a Labrador retriever or a Labrador retriever-Bullmastiff cross.

[104] Hawisa did acknowledge and accept that the process of development of a TBI can take some time and that a "lucid interval" can occur while the process of brain swelling and the release of chemicals that cause coagulopathy takes place. She was of the view that this period could be between 30 to 60 minutes.

[105] Despite accepting the possibility of a lucid interval, Hawisa was adamant and intransigent that the dog scenario was implausible and could not account for Kody's injury and that Kody's brain bleed could not have started from being knocked down by the large family dog.

[106] Her view was, in effect, that no dog of any size running at any speed could hit a child, like Kody, with enough force to knock that child to the floor and result in the kind of injury he sustained and presented in an indoor household context. She remained adamant, even with a hypothetical scenario of "multiple impacts," as for example, a dog striking the child and propelling the child against a couch which then causes the child to rebound trampoline-like off the couch and onto the hardwood floor. Hawisa's unmovable opinion was that Kody's injuries were intentionally inflicted by a violent shaking.

Dr. Fernandes' Direct Examination and Opinions

[107] The last witness to testify was Dr. John Fernandes, (Fernandes), a forensic pathologist with extensive experience and expertise. Fernandes was conceded by the defence to be qualified to offer opinion evidence and he was qualified by me without any contest to be an expert forensic pathologist. He was permitted to offer opinion evidence in the areas of the observation, investigation, documentation and interpretation of the causes and the effects of disease and injury in human beings.

[108] Fernandes' c.v. was filed as Exhibit 12 and his report of a paediatric postmortem examination of Kody's body was filed as Exhibit 13. Finally, 11 of the photos taken of Kody Smart's body at autopsy, which took place on July 27, 2015 were filed as Exhibit 14.

[109] Fernandes said that at the end of the day Kody was a healthy baby who died from non-medical causes; that is to say Kody did not die as a result of a bacterial or viral infection and he did not die from any metabolic disorder or pre-existing damage to any of his organs or bodily systems. Kody's cause of death was blunt force injury to his head and neck. The following discussion represents Fernandes' evidence and opinions.

[110] The photos in Exhibit 14 show the external marks of trauma to Kody's body before Fernandes commenced his autopsy. While many of the marks on Kody's body were the result of therapeutic efforts to save his life, Fernandes identified three separate areas of external bruising on Kody that were not the result of therapeutic intervention. Those three areas of external visible bruising not accounted for by therapeutic intervention were located on Kody's right cheek, left upper forehead and left parietal region, and his left shoulder.

Kody's Right Cheek

[111] There was a bruise on Kody's face beside his right eye and extending over his cheek. A bruise of tissue is defined as a blunt force injury. The bruised area contained a series of small bruises present in the soft tissue of that area. The right cheek bruise represented a blunt force impact injury to the tissues of Kody's face. The bruising covers the whole area from just above the eye to lateral to Kody's mouth. Some of the marks in this area were disc-shaped but irregular.

Kody's Left Shoulder

[112] The bruising on Kody's left shoulder was not associated with any needle puncture sites and was the result of blunt force.

Kody's Right Shoulder

[113] There was an extensive area of bruising on Kody's right shoulder that mirrored the location of the bruise on his left shoulder. There were obvious puncture marks within the area of that large bruise. Fernandes attributed this bruise to therapeutic efforts because multiple puncture sites were present within it. He was of the view that it was reasonable to conclude that those punctures were responsible for that bruising. He added that he could not rule out that there may have been a bruise there that somebody had passed needles through. However, he felt that it would be speculation for him to say that there was a pre-existing bruise present in that site prior to medical intervention because he had a reasonable explanation for this bruise, which he classified as resulting from therapy.

[114] When asked about how an adult might hold a child under the armpits with thumbs pressing on the front of the child's shoulders he accepted that he could not rule out the existence of an earlier bruise now disguised by subsequent medical intervention.

Kody's Left Forehead and Parietal Region

[115] There was a bruise on Kody's left upper forehead and parietal region. This area of bruising was a blunt force injury not associated with therapeutic intervention.

The Aging of Bruises

[116] There is only a very imprecise ability to age a bruise by visual inspection. One can say that a change of colour from blue/black to green/yellow, indicates that some time has passed sufficient to say that the bruise has aged. Within those parameters all of the bruises on Kody were fresh bruises from the same time-frame. Kody exhibited no older sites of injury.

[117] Fernandes noted that one must understand that after Kody's brain was traumatized he developed a clotting disorder as a consequence of the brain trauma. As a result of that coagulopathy, (DIC), the attempted therapeutic interventions that he was subjected to resulted in bleeding in excess of what one would otherwise expect from a child who can clot their blood.

[118] None of Kody's bruises demonstrated any "inflammatory response"; that is to say the normal healing processes after getting bruised had not yet occurred. When someone gets injured a sequence of events occurs. With acute events you typically see bleeding into the tissues. Once bleeding has occurred, then over the first several hours, (variable by individual), there is recruitment of a progressive population of inflammatory cells that clean up the injury. The first wave of them, the acute inflammatory cells respond to the immediate injury in order to contain the injury. Subsequently, other types of inflammatory cells appear to remodel the tissues and chew up or metabolize the injured blood cells. This action results in iron deposition in the area, which can be identified and so a pathologist can identify aspects of the healing of an injury over time. The bruises that Kody sustained were all "fresh," though that concept is variable among individuals.

[119] Since Kody would not be able to eat after becoming unresponsive, his injuries were sustained some time after his last meat and before he was found unresponsive.

Photos of the Dissection

[120] Photo 6 of Exhibit 14 is a picture of the early stages of the dissection. The right side of the neck with the skin reflected shows the extensive bruising on the right side of the shoulder extending from the right side of the shoulder to the midline of the neck. This photo demonstrated that a small bruise apparent on Kody's neck in the suprasternal notch was in continuity with the right shoulder bruising and was the result of blood flow from those right shoulder puncture sites.

[121] Several photos of the brain dissection were included in Exhibit 14. They demonstrated subdural hemorrhaging and swelling of the brain, although that is hard to capture photographically. Nonetheless, these photos, (7, 8, and 9) show, inter alia, accumulated, subdural blood and a slightly swollen looking brain. There was about 50 cc's of accumulated blood at the base of the brain but there should have been none and the fluid between the dura and the surface of the brain should have been crystal clear and colourless and it was not. This subdural blood was released from the bridging veins on the surface of Kody's brain that got ruptured as a result of the traumatic forces inflicted upon him.

[122] Photo 10 of Exhibit 14 shows Kody's back opened to permit examination of the spinal column and the spinal cord. It shows that subdural blood has tracked down the spinal canal. No fractures of the bony structures of the spinal column were identified.

Internal Examination of Kody's Neck

[123] Because neck injuries are often associated with head injuries best practices require that the bony structures of the neck be examined as part of a comprehensive autopsy. Fernandes removed, inter alia, all of Kody's cervical vertebrae. He then decalcified and sectioned them vertically to examine them internally. Photo 11 of Exhibit 14 shows them laid out sequentially. He conducted microscopic examinations on them and concluded from both a gross visual inspection and from his microscopic examination that they showed internal hemorrhage.

[124] Kody did not have any bone fractures. His neck bones were intact and while the skin on Kody's neck exterior showed no injury, sectioning of these vertebrae demonstrated blunt force trauma resulting in hemorrhage within that portion of Kody's spine.

The Mechanism of Injury

[125] This type of neck injury and the type of brain injury to be described typically results from a hyperextension or hyperflexion action. This is to say that the neck and the heavy head attached to it are subjected to a form of acceleration and deceleration motion. From a stationary position the head upon the neck is caused to suddenly move at a different rate of speed than the neck, which causes injuries to the tissues of the spinal column and the brain, which can be lethal, though need not necessarily be so.

Kody's Size at Autopsy

[126] Kody's crown to rump length, the measurement from the top of his head to his buttocks was 21 inches or 54 centimetres. He measured another 11 inches or 28 centimetres from his buttocks to the heel of his foot, making him 32 inches tall or 82 centimetres. He weighed 23 pounds or 10.4 kilograms.

Dr. J. Provias' Neuropathologic Examination

[127] Fernandes removed Kody's brain and sent it to Dr. J. Provias, (Provias), a neuropathologist, for a forensic examination. Fernandes adopted Provias' report and his conclusions. That report was attached to and forms a part of Fernandes' postmortem report, (Exhibit 13).

A Lucid Interval

[128] A lucid interval is the period that sometimes occurs between the onset of a traumatic brain injury and the subsequent frank exhibition of the symptoms of that injury. This period between trauma and its consequences can be short or last for hours or even days. This period between trauma and frank symptomology is termed a lucid interval.

[129] The literature reports that if a diffuse axonal injury occurs and if that axonal injury is widespread over the brain then loss of consciousness is immediate. (An axonal injury refers to the stretching, disruption or tearing of the axons or nerve fibres of the brain.) This type of injury occurs in acceleration/deceleration (whiplash) type traumas, especially where there is a rotational component to the whiplash. Additionally, this kind of injury can cause muscular injuries to a person's neck at a high cervical junction because that is the area that is the fulcrum for the whiplash event.

[130] In cases where the axonal injury is patchy and not widespread, the possibility of a lucid interval is available but as the injury progresses respiration becomes impaired and this lack of sufficient oxygen to the brain, (called hypoxia), gets superimposed on the initial axonal injury. The hypoxia then becomes the prominent feature causing the victim to lose consciousness.

[131] Based upon Provias' report, which Fernandes adopted, Kody's major brain injury was a hypoxic-ischemic brain injury that was initially secondary to a recent multi-focal, (i.e., diffuse), traumatic axonal injury. That secondary hypoxic event became the major factor in Kody's demise. The initial axonal injury was the product of angular acceleration forces that caused sheering.

[132] Some of the areas of axonal injury were located in the part of Kody's brain that controlled his respiration and circulation. The damage to those parts of his brain caused him to suffer hypoxic damage. As Fernandes explained, Kody's brain sustained localized axonal injury in the area that controls breathing. The child's breathing became compromised causing a lack of oxygen which was then superimposed on his entire brain.

Hypotheticals and Case Specific Opinions

[133] In Fernandes' opinion a child the size of Kody could not likely suffer lethal brain injury if that child was knocked over by a dog and hit his head on a hardwood floor whether that knockdown was from a seated position or from a position standing next to a couch. However, in his opinion, if a child was shaken one could see the type of lethal injuries that Kody exhibited.

[134] Kody exhibited cerebral edema, (brain swelling), subdural hematomas and retinal hemorrhage and tears. This grouping of injuries is often referred to as "the triad" and is characteristically found in violently shaken children who do not exhibit any other injuries. Many (physicians) believe that you can shake a child hard enough to cause lethal injury.

[135] Fernandes' view is that a careful literature review will limit that possibility to babies under five or six months' of age. Typically, death does not occur merely from violent shaking to children over six months of age, as their bodies are more developed and can withstand shaking alone. Fernandes was of the opinion that lethality caused by shaking alone is rare and has not been reproduced in experiments with animals or bio-fidelic models, though one does get traumatic injury to the neck structures of the subjects of those experiments.

[136] While it is hard to come to a firm conclusion Fernandes favoured the view that shaking alone would be highly unlikely in older infants, those in the 12 to 13 month age range for example, because they are just too well developed to die from shaking alone, although he left open the possibility that it might occur if the victim was a particularly vulnerable child.

[137] However, a violent shaking that includes an impact changes the dynamics of the forces developed so that in his view, a violent shaking with an impact as part of the sequence of events could well result in lethal injury. The impact appears to be the element that provides the extra energy required for serious axonal injury resulting, ultimately, in lethality.

[138] So far as Kody is concerned, his left forehead and parietal bruise was an impact injury. In Fernandes' opinion, that injury was caused by Kody's head striking a hard surface at some point. In doing so, even if the injury was started with a forward or accelerating motion if his head impacted a hard surface there would be an abrupt deceleration and the energy would be diffused quite extensively into his brain so that this impact brings the level of harm higher and increases the likelihood of death resulting from such a sequence.

[139] While a shaking with impact increases the likelihood of serious harm, where the acceleration occurs with rotation that rotation can damage the structures at the junction of the neck and head and the whole event becomes more complex and accentuates the amount of force generated with greater potential for brain damage.

[140] In this regard, a hard slap across the cheek of a child could cause rotational force. Further, the significance of Kody's neck injury is that it reflects that a greater amount of force than shaking alone has likely occurred. The internal neck injury was inflicted contemporaneously with the other external blunt force trauma in his opinion.

[141] Medically quantifying force cannot be done with any precision, retrospectively, other than to classify the results of the application of force as having occurred as a result of a small, a moderate or a large amount of force. The presence of bone fractures denotes a higher or greater amount of force. The existence of internal neck hematomas indicates much more force was applied to Kody than the force required to result in simple exterior bruising. Relying upon the literature in this area, Fernandes said that at least a moderate amount of force would be required to cause Kody's neck injuries and some authorities would suggest that severe force would be required. In sum, he testified that upper neck injuries, (which is what Kody exhibited), required substantial force to inflict them.

[142] Prior to testifying Fernandes did a literature review to try to find any reported case or cases where a child had died as a result of being knocked down by a dog. That review included a review of any cases documented by the CDC, (the Centers for Disease Control and Prevention in the USA). Fernandes was unable to find any such case. He could find no reported article or commentary that suggested such an event had occurred. In addition he exchanged or was provided with correspondence from a defence-retained expert, (Dr. Ramsay), who also was not able to produce any report or article that suggested a child had suffered a lethal brain injury by being knocked down by a dog. Fernandes was, of course, familiar with child deaths due to dogs biting or mauling children and he was familiar with the literature of injury and deaths from short falls.

[143] Fernandes had never personally encountered a case of a fatal head injury caused by the collision of a dog with a child and, as noted, he could find no report of such a case. It was his view that such an occurrence would be highly unusual and highly unlikely; but, he could not say that such a result from such a collision was impossible.

Dr. Fernandes' Opinion and Conclusion

[144] "In conclusion, the death of Kody is attributed to blunt force injury of the head and neck. This most likely represents inflicted injury with a mechanism including a component of hyperextension/hyperflexion of the head on the neck and may have included an impact and rotation of the head upon the neck. All findings would be supportive of a single event."

Dr. Fernandes' Cross Examination and Concessions

[145] Like Hawisa Fernandes applied a "diagnosis of exclusion" in arriving at his opinion. He saw no evidence of infection, no evidence of pre-existing disease, no evidence of genetic abnormality and no evidence of metabolic abnormality in Kody. That left him only one explanation for Kody's presentation: blunt force trauma to his head and neck that precipitated the brain injuries that resulted in his death.

[146] Fernandes confirmed that the history of the mechanism of injury that the police had been told was that Kody had been hit by a dog while sitting or standing. He also agreed that a fall to the floor could leave Kody with a left forehead and scalp bruise.

[147] Fernandes agreed that a subdural hematoma could be caused by an accidental trauma as well as an inflicted trauma and that an examination of the resulting trauma does not permit a forensic pathologist to determine which of those two mechanisms caused the subdural hematoma.

[148] While all three doctors, (Hawisa, Fernandes and Provias) were agreed that Kody's subdural hematoma was traumatic in nature, Fernandes did not identify any apparent contusional injury on the surface of Kody's brain. What Fernandes thought might be one in the nature of a contra-coup injury behind Kody's eyes was not borne out by Provias' microscopic examination of that brain tissue.

[149] While axonal trauma can be lethal, Kody had a survival interval, a lucid period, during which he became hypoxic causing his deterioration.

[150] A knock of the head on a floor could lead to a concussion which could lead to hypoxic-ischemia.

[151] A coagulopathy can develop rapidly after a trauma. The result of this condition is that injuries may look larger and worse than they would have in absence of this condition because the body's failure to clot allows more blood to flow out of the injured tissues so bruises are larger. In short, a DIC makes any injuries more visible. Kody's DIC condition was identified upon his transfer to McMaster.

[152] The existence of such a condition can make it harder to assess how badly tissues are damaged.

[153] Fernandes agreed that Kody was literally "handled" by a number of people, including being carried out of his home by a paramedic. He was transferred into and out of ambulances to hospital beds, and into an air ambulance and eventually into the PICU. Fernandes accepted that it was not beyond the realm of possibility that this sequential hands-on passing-off of Kody's body could have resulted in some bruising to him during that process.

[154] Fernandes said that the agonal breathing witnessed by the paramedics was evidence of the hypoxic injury that Kody was suffering from and that Kody was, at that point, a dying child.

[155] In Fernandes' opinion a lucid interval in a child would generally be short, from a few minutes to an hour, perhaps. His review of the literature about this indicates that children who suffer TBI present the effects of that condition almost immediately.

[156] Children fall all the time. In Fernandes' opinion, a short fall by a child resulting in death is an extraordinarily rare occurrence. He was unable to find any such incident that resulted in a fatal head injury where the fall was from a height of less than three feet. He was of the view that it would be unlikely for a child to suffer a lethal injury from a dog brushing by the child and causing the child to lose balance and fall to the ground. As Fernandes put it in his report, "There was an explanation offered of the potential of an accidental traumatic injury resulting from a short fall after being knocked over by a large dog (80 lbs.). This explanation is unlikely given the areas of injury of the neck and clavicular areas, and given that Kody would more likely have had a point of impact injury of the back of the head near the occiput."

A More Complex Fall

[157] Despite that opinion, Ms. Vanderlee put a different hypothesis to Fernandes that she characterized as "a more complex collision between a dog and a child." Fernandes agreed that additional forces may come into play in a more complex scenario.

[158] Ms. Vanderlee put the following hypothetical to Fernandes: a large dog in motion applies a substantial force against a child propelling that child down against a hard surface. Might that kind of situation result in lethality to that child? Fernandes conceded that he could not say that could not happen.

[159] Fernandes noted that that was not the potential explanation that he was given and added that there are injuries on Kody that are not explained by the hypothetical; namely, the injury to Kody's cheek and the injuries to his spinal column and left shoulder. Fernandes stressed that cheeks are rarely injured by falls.

[160] Ms. Vanderlee expanded the hypothetical by positing a leaping dog that hits a child causing the child to bounce off, (in effect rebound off), a couch and be propelled onto a hard floor. She asked whether such a scenario could create an acceleration impact to the child. Fernandes agreed that that was possible.

[161] Additionally, he agreed that Kody's forehead bruise was an impact site and that hitting one's head on a floor could lead to brain trauma and could lead to a subdural hematoma. He also accepted that if one suffered a complex motion injury that could result in neck injury.

[162] Fernandes agreed that the leaping dog scenario introduced an increase in force beyond the force that would be generated by a simple drop to the floor by gravity. He agreed that the introduction of an increased level of force beyond a fall to the ground due to gravity could result in retinal hemorrhage.

[163] Squarely put he accepted that while a simple fall would not likely lead to death a more complex fall could result in all the injuries that Kody exhibited.

[164] As part of her hypothetical Ms. Vanderlee suggested that Fernandes posit that a child (i.e., Kody) is impelled onto the floor and that he sustains both his left forehead injury and left shoulder bruise during the same impact with the floor. Fernandes accepted that it was not "inconceivable" that those two injuries could happen from the same impact.

[165] Likewise he accepted that the application of force resulting in a neck injury could also introduce a rotational aspect to such an injury.

[166] Fernandes conceded that he could not be 100% certain that Kody's injuries were the result of inflicted trauma as opposed to accidental injury. But he continued to maintain that Kody had a number of injuries that needed to be accounted for within the context of his whole pattern of injuries. It was Fernandes' opinion, supported by "the literature", that is to say the peer-reviewed authorities, that this injury constellation most aligns with an inflicted injury rather than accidental injury.

[167] Nonetheless, Fernandes conceded that he could not exclude the possibility that Ms. Vanderlee's more complex dog scenario explanation was "plausible". Plausible was a word suggested by Ms. Vanderlee to which exception was not taken by Fernandes. Fernandes said that he could not exclude that as a possibility, though he thought that explanation to be highly unlikely and an event not seen in the literature.

[168] While Fernandes conceded that he found no grasping or finger marks on Kody's extremities, from which one could infer Kody had been grabbed and shaken, he was of the opinion that Kody's left shoulder bruise could have been made by an adult's thumb.

[169] Fernandes was asked to and did adopt the following statement from an article authored by a Dr. Lantz, who Fernandes accepted as a reputable authority:

"Our literature search from serious injuries and fatalities from stairway or low height falls involving young children yield 19 articles of primary data. These articles are discrepant making the classification of a young child's death following a reported short fall problematic. This case report contradicts the prevalent belief of many physicians dealing with suspected child abuse that low height falls by young children are without exception benign occurrences and cannot cause fatal intracranial injuries and severe retinal hemorrhages."

[170] Hence, Fernandes agreed that a short fall can be fatal but he also qualified that agreement by stating that in most of these incidents the falls are from playground equipment being used by children much older than Kody. Nonetheless, he also accepted the following statement as accurate:

"Every fall is a complex event. Retinal hemorrhage may occur whenever intracranial pressure exceeds venous pressure. Axonal damage is unlikely for lethal low velocity impact injuries such as from a fall. … A fall of less than 10 feet may cause fatal head injury and may not cause immediate symptoms but the injury may be associated with bi-lateral retinal hemorrhage and associated subdural hematoma and a history by the caretaker that the child may have fallen cannot be dismissed."

[171] Fernandes accepted that "the big take home message" is that one must respect that very occasionally short falls do result in significant injury. He agreed that a 13-month-old is more vulnerable to injury than a much older child and consequently he could not say with certainty that Kody's presentation was not as a result of an accident with a dog.

Re-examination

[172] In response to questions put concerning a lucid interval Fernandes was of the opinion that Kody would not be able to sit up and play with his blocks after sustaining the injuries that he sustained.

The Submissions of the Crown

[173] Kody Smart was a vulnerable person entirely dependent on his caregiver. He was a 13-month-old child who could not walk independently and could not stand without being raised into a standing position. Jaclyn Matthews was specifically asked whether Kody could get into a standing position from sitting and she answered, "No". She testified that if someone lifted him to standing he could hold onto the couch but that he needed help to get into that position; i.e., he could not do it for himself.

[174] In response to a question from me, Ms. Gzik agreed that there was evidence from Taylor Matthews and from Dr. Sinton that Kody could pull himself to a standing position using immobile and secure furniture, like a couch. Notwithstanding that contrary evidence the Crown urged that I find Kody had the mobility limitations as described by Jaclyn Matthews because she was Kody's primary caregiver so she was in the best position to know and testify to his physical limitations. Ms. Gzik's point was that when Kody was sitting on the floor that was as tall as he could be and that there was no evidence that Matthews or anyone else put Kody into a standing position on the morning that he was injured.

[175] The Crown's submission is that Matthews' statements are contrived; that Matthews was trying to have the police believe that Kody was upright. But, Matthews never said that he placed Kody in a standing position and the Crown urges that I find that Kody could not get into that position unaided.

[176] The measurement from the top of Kody's head to his buttocks was 21 inches or 54 centimetres, which therefore was the greatest height from which he could be knocked over by a dog. That was a height from which no lethal injury could occur, hence that did not happen.

[177] Kody was left in the care of Matthews, who, the Crown submits, caused all of the injuries, both external and internal, that Kody suffered. The Crown submits that the evidence proves that Matthews assaulted Kody by shaking him and impacting him against a hard surface.

[178] The Crown submitted that while Dr. Fernandes conceded that a child could receive all of the injuries that Kody suffered as a consequence of a complex fall that there was no evidence of a complex fall. I note that while there was no direct evidence of a complex fall neither was there any direct evidence that Matthews assaulted Kody. The Crown's case is purely circumstantial.

[179] Ms. Gzik submits that the only evidence of a fall, (of any nature), comes from Matthews but that his evidence about what happened to Kody is inconsistent. The Crown's submission is that Matthews blamed the dog for Kody's injuries in an attempt to conceal his assault on Kody.

[180] Moreover, it is the Crown's submission that Matthews' evidence is inconsistent internally as well as inconsistent with other external evidence and that Matthews' story should be rejected.

[181] One of the inconsistencies the Crown points to is that in his statement to Isherwood he said that he had left Kody in the middle of the living room playing with his blocks. That, the Crown submits, is inconsistent with what he said to the 911 operator, which was that Kody was sitting on the floor or standing up against the couch earlier.

[182] Additionally, Matthews' statements to the 911 operator purport to describe something that he actually witnessed: the dog jumping and knocking Kody down. The Crown submits that that account is contrived and that Matthews later admits in other statements that he did not see any collision between Duke and Kody.

[183] The essence of the Crown's submissions is that Matthews could not witness what did not happen; that the dog is not to blame. The Crown submits that Matthews contradicts himself in his iterations of the story because his story is a lie; he cannot remember what he's said previously so he tells the tale inconsistently.

[184] In the Crown's view Matthews lost his temper with Kody and lashed out and harmed him. The Crown suggests he lost his temper because of Kody's crying.

[185] Kody was new to the Matthews' household. He was cared for primarily by Jaclyn Matthews. She worked every second weekend but otherwise she took care of Kody. Matthews was away working as a long distance hauler from Sunday to Friday so he was only obliged to care for Kody on those few weekends when his wife was working.

[186] By the Crown's computation that was only a matter of 21 days. Regardless of the exact number, the Crown is correct that Matthews did not have a lot of time for Kody to get comfortable with him. Kody was a crier at the best of times and babies "make strange". Dr. Sinton also testified that Kody showed distress when separated from his caregiver and the evidence is that his primary caregiver was Jaclyn Matthews.

[187] The Crown says that is why Jaclyn Matthews sent text messages to her husband asking if Kody was crying. That tendency to cry was effectively admitted to by Matthews to Southcott when Matthews told Southcott that Kody cried and continued to cry until Matthews picked him up from his crib.

[188] Matthews got up that Saturday morning and was responsible for caring for two young children, one of whom cried regularly, so regularly that Jaclyn Matthews texted her husband to ask if he was crying. In effect, the Crown submits that Matthews shook Kody to get him to stop crying and harmed him fatally in doing so.

[189] The Crown next asked me to find that there is a contradiction in the evidence between Jaclyn Matthews and her husband. The wife said that she left for work without giving her husband any instructions as to child care since they had both raised children so that he did not need to be instructed on caring for a child. He testified that he let Kody cry in his crib when Kody awoke that morning because that was what his wife instructed him to do. Notwithstanding the potential importance of Kody's penchant to cry, this difference between their evidence is of no consequence per se in my view. At worst this modest difference in their evidence simply means that on some prior occasion they discussed how to deal with Kody when he woke up in the morning.

[190] Kody was only wearing a diaper when the paramedics arrived. One of his outfits was on the kitchen floor at that time. That outfit was not on the floor in that position when Jaclyn Matthews left for work.

[191] Matthews got C. dressed, why would he not get Kody dressed? asks Ms. Gzik. The Crown finds it significant that Kody was only clad in a diaper and suggests that Matthews' inability to get him into the outfit found on the floor may have been an alternative cause of the frustration that caused him to shake Kody.

[192] In my view that interpretation is a speculation. It was summer and warm. Taylor saw Kody at breakfast but could not recall what he was wearing. C. was mobile and liked to open drawers and take things out according to Jaclyn Matthews. Matthews may have decided to get Kody dressed and then changed his mind. In his statements to Isherwood Matthews said that he would change Kody when Kody awoke. The language easily connotes changing his diaper, which is expressly how Isherwood took that phrase. Matthews said the same to Southcott. Matthews was not asked whether he got Kody dressed in clothes by either officer. That Kody was only in a diaper and that one of his outfits was on the floor is intriguing but those facts are not a circumstance from which any inference can be gleaned.

[193] Turning to a comment in one of Matthews' statements, Ms. Gzik submits that Matthews' description of the noise that he told Southcott that he heard from the living room as being a "little thud" is inconsistent with what Dr. Hawisa said would have to be the case; namely, that an event that could cause Kody's injuries would be a significant event and be recognized as such by his caregiver. Dr. Fernandes agreed, in effect, with that assessment. Yet, in the face of those two expert opinions, Matthews told Southcott that he heard a dog bark, he heard a dog jump and he heard a little thud but thought nothing of it. He did not feel moved to investigate the little thud for perhaps 10 minutes, because he thought nothing of it.

[194] The Crown says, the Matthews' home is small and as Jaclyn Matthews said, its walls are thin. While lying in bed in her bedroom she was, without yelling, to speak to Matthews who was in the kitchen. The distance between that bedroom and the kitchen is much greater than the distance between the kitchen and the living room. There are no doors that close off the kitchen, where Matthews was, from the living room, where Kody was. The event that caused Kody's injuries was a significant one, according to the experts. Matthews' story that he heard a little thud is inconsistent with a significant event that would have been required to cause Kody's injuries. It is inconsistent with what would have needed to be the case if the story was true because the story is not true, it is contrived. That is the position of the Crown.

[195] The Crown submits that I ought to accept the expert opinions of Dr. Hawisa and Dr. Fernandes, which are both consistent in concluding that the constellation of the injuries that Kody suffered were the result of inflicted trauma. What they observed and concluded also aligns with the medical opinion of their peers and with the accepted medical literature on these kinds of injuries.

[196] Most importantly, I am asked to rely upon the evidence from both experts that there is no reported case of lethal injury resulting from the collision of a dog against a child.

[197] While the Crown accepts that Dr. Fernandes could not rule out a complex fall resulting in a brain injury leading to death, this opinion was given on a hypothetical basis and the Crown submits that there is no direct evidence that this happened to Kody. Nonetheless, even though Fernandes could not rule that scenario out he was of the opinion that the prospect of such a scenario occurring was highly unlikely.

[198] Returning to her theme of inconsistencies, Ms. Gzik submitted that there are major inconsistencies in the various versions of the events that Matthews said he heard and responded to. In some versions Matthews says he returns after various time periods to find, Kody shaking and falling back limp. That is to say, he says that he actually witnessed this happening. In another version he comes upon Kody after about 20 minutes and finds him prone and limp. As always, the Crown submits these inconsistencies exist because Matthews is making it up and can't remember what he said previously.

[199] The Crown's position is that Matthews assaulted Kody and caused his death. To escape responsibility for his actions he chose to blame the largest of the family's dogs and began to embellish. He did that by exaggerating the extent to which Kody interacted with Duke and he also embellished the danger that Duke presented to Kody, saying that Duke knocked Kody over "lots" and that Duke would growl at and jump at Kody.

[200] The Crown submits these are further lies; that the credible evidence is that Duke knocked Kody over on only one occasion while Kody was seated on the ground surrounded by pillows and on that occasion the dog only made Kody "lob" over. The Crown submits that I can know these embellishments are lies because Jaclyn Matthews said that there were no concerns over the dogs interacting with Kody and that she had never witnessed any aggression from the dogs to Kody or C.. (I pause here to note that Jaclyn Matthews spent much more time at home with the children and the dogs than did Matthews.) Likewise, Taylor said the dogs and the children were fine with each other.

[201] Another inconsistency in Matthews' statements concerns C.'s location. Matthews told Southcott that C. was in the living room with Kody and that she was locked in that room with Kody to prevent her from running around and getting "into stuff". However, he told Isherwood that C. was not in the same room as Kody; that she was playing around although he could not remember where she was in the house. He was certain that C. was not in the living room when he found Kody. Once again the Crown points to these inconsistencies as evidence that the dog story is contrived but that Matthews cannot remember his lies and so he cannot repeat the story consistently.

[202] Finally, Ms. Gzik points to a lacuna in the evidence from which she urges a conclusion that I do not accept. It is clear from the 911 call that dogs are present on the first floor of the home and yet they are not present on that level when the first paramedics arrive. No one seems to have ushered them into the basement. The Crown suggested that since they were not there to be seen they may never have been upstairs that day. If that is the case then Duke was never available to be the agent of Kody's injuries as Matthews contends. I am not prepared to accept that submission. Taylor said the dogs had the run of the house. It is clear to my ear that there were dogs on the first floor while Matthews was on the phone with 911. The Crown's submission implies that Matthews was dissembling when he yelled to the dogs to get downstairs and I do not accept that that was the case.

The Submissions of the Defence

[203] With the consent of the Crown each defence counsel made submissions respecting different areas of the evidence.

Mr. Barr's Submissions

[204] Mr. Barr began by submitting that the text messages exchanged on the morning that Kody was injured were not exceptional. They were, as Jaclyn Matthews said in her evidence, a routine check-in simply to be reassured that all was well.

[205] Any lack of detail or specificity in Jaclyn Matthews' recollection of what her husband said to her in his panicked telephone call to her was understandable given Matthews' distress during that call, along with Kody's "death rattle" breathing. Nonetheless, Matthews clearly conveyed that Kody had been injured in a collision with the dog and had hit his head on the floor. The defence submits that Matthews reached out to his wife who had some medical training and that he followed her direction and called 911

[206] Mr. Barr submitted, and I accept, that Matthews' voice was full of urgency on the 911 recording. Mr. Barr said that "regardless of what happened to Kody, it is abundantly clear that Brian Matthews was reaching out for help." He submits, and I accept, that Matthews' urgency was not feigned; but, I note, that the fact of Matthews' feeling of urgency does not illuminate what act or actions precipitated the emergency.

[207] One of the major planks of the Crown's platform was that Matthews' retelling of the events was inconsistent and that that inconsistency was a hallmark of his mendacity. Mr. Barr disagrees. He submitted that "to place too much emphasis on the details of what is being said [by Matthews] is to expect more of human nature than any of us are entitled to expect."

[208] Mr. Barr's theme was that there was no question but that the events of that morning shrouded everyone who was aware of what was going on with distress. The defence position was that that held true for Brooke O'Neill, the paramedic, and for P.C. Glen Hamilton, despite being an experienced police officer. Moreover, this was especially true for Brian Matthews, who was responsible for Kody and who was called upon to deal with an emergency.

[209] Mr. Barr submitted that one "cannot overstate the emotional stress that would cause anybody." His point was that I should credit Matthews' statements that the dog was responsible for Kody's condition because those statements were made contemporaneous with or shortly after the events they reference, in circumstances of urgency. The defence urges that "considerable weight should be placed on the fact that it has been said because it's contemporaneous or shortly thereafter the events that are being spoken of and great value should be placed on what is being said in that context." Mr. Barr submits that the events are being reported by Matthews shortly after they occurred and that Matthews was so dominated by the events that fabrication by him is unlikely, albeit there may be some inaccuracy due to the stress of that time which was extraordinarily high.

[210] To be clearer, Mr. Barr submits that the urgency of the situation permits me to rely upon the bold strokes of what Matthews said, but that same urgency requires me to be forgiving of his inconsistencies in the "finer details" of his statements. To come to the point, Matthews' general description of the crisis he encountered is credible but the very fact that the situation was a critical one precluded him from recalling and retelling it with precision. By the same token, both O'Neill and Hamilton were "shrouded" with the distress that Kody's condition produced and so their recollections of what Matthews said to them cannot be relied upon to be precise any more than Matthews can be expected to be precise, in the face of this crisis.

[211] Within that framework Mr. Barr then reviewed some of Matthews' statements about the events of that morning beginning with the testimony of paramedic Brooke O'Neill.

[212] Mr. Barr points out, quite correctly, that her recollection is fractured by an internal inconsistency. She said that within the first 90 seconds of her attendance at the home she had to ask Matthews three times what happened to Kody because she did not think that what he told her matched Kody's presentation. But, that clearly was not the case since at least one of her inquiries was prompted after a colleague called out that one of Kody's pupils was "blown" but that colleague did not arrive and begin to work on Kody until several minutes after she arrived. Moreover, her notes of what she says Matthews said are not in the first person and she referred to information from caregiver s not a caregiver. Finally, her notes were completed after a communal debriefing of all four paramedics who responded to the home.

[213] Given all of this the defence submits that her recollections should be received with some reservation. Moreover, as previously submitted there is the additional severe emotional challenge arising from this traumatic situation that "shrouded" Matthews' ability to convey an accurate account, as well.

[214] It is the defence's position that while an accurate record of what Matthews said may be available from the 911 recording and from Southcott's recording, any differences in "detail" are a product of the fog of stress and emotion acting on Matthews during those first hours after Kody was injured.

[215] If there are any inconsistencies between the statements that Matthews made on July 25, 2015 and what he said to Isherwood on November 2, 2015, there is a three-fold explanation. First, the mere passage of time between those dates account for some of the inconsistency to the extent the court finds there to be any. Second, Matthews did not have the benefit of reading any reports of his prior statements, nor did he have the benefit of listening to any recordings of his prior statements before he was interrogated by Isherwood. He simply did not have access to the materials that the Crown now asks that he be held accountable against. Third, he had just been arrested for manslaughter and the fact of his arrest was in and of itself a traumatic event clouding his ability to recall and relate the events of many months earlier.

[216] Mr. Barr submits that the Matthews' home was flooded by first-responders and the place was in chaos. In that milieu it would be a "harsh judgment" (sic) to hold Matthews to account for the details that are included in these various statements when Matthews had not been called upon to express them or repeat them since that date. Hence, his ability to do so in November was severely challenged.

[217] So far as the evidence of P.C. Glen Hamilton is concerned, Mr. Barr stresses that Hamilton did not purport to provide a verbatim account of what Matthews said to him. Once again, the defence urges that the circumstances influenced both Matthews and Hamilton. Who can remain unaffected by what was taking place? asks Mr. Barr. The circumstances must have had a serious impact on Hamilton's ability to focus on what was being said to him by Matthews because they certainly did for Matthews, says the defence.

[218] Mr. Barr contends that the Crown is wrong to characterize Matthews' statements as lies. If he was lying, says Mr. Barr, Matthews would have said that he saw the dog knock Kody down.

[219] The essential submission is that the circumstances in which these statements were made are so much a part of them that one cannot separate their content from their circumstances. What was happening was so much a part of these statements that you cannot separate the circumstances from the utterances. The broad strokes are more easily remembered but the finer points much less so, especially Matthews' comments about time, which is a subject particularly difficult to quantify.

[220] In my attempt to ensure that I understood the submission I restated what I had heard as follows: "I am being asked to bear in mind that it would be artificial to attempt to extract or dampen out the circumstances and then assess the statements and their internal consistency on the basis of calm reflection; that the circumstances on the one hand promote their truthfulness because they are contemporaneous, not res gestae but almost such, but on the other hand to demand what the Crown says is necessary for credit is unrealistic because the circumstances are so emotionally fraught that one could not expect such dispassion." Mr. Barr agreed that that was his submission.

[221] On the issue of Kody's mobility I was reminded that Taylor testified that Kody could crawl and that while he could not stand on his own, he could pull himself up to standing and he was able to sit on his own. (Further, there was evidence that he could move into a crawl from a sitting position.)

[222] Returning to Isherwood's interrogation of Matthews, Mr. Barr characterized it as an intelligent, clever, well-prepared and psychologically based interrogation, of over four hours, the purpose of which was to overcome any resistance to accepting the "truth" as understood by Isherwood. Despite repeated attempts to have him admit to any culpability Matthews maintained that he did not hurt Kody; that he did not strike him or do any act to inflict harm on his grandson.

[223] Beyond trying to browbeat him with the "authority" of Hawisa's report and Fernandes' postmortem report, Mr. Barr submits that he was challenged by being goaded into responding to paraphrases of prior statements said to have been made by him. The defence submits that would have necessarily had the effect of confusing Matthews and leading him into a state of hopelessness so that it is questionable as to whether the court can rely on any inconsistencies in that interrogation.

[224] In the defence submission, there was nothing more culpable here than that Matthews left a less than robust little boy in the company of a big dog and that other than the possibility of being bumped or the possibility that the dog might jump over the couch, there is nothing in the evidence to suggest the prospect of any more serious injury to Kody.

[225] That the Crown now says as an alternative submission that Matthews is guilty of criminal negligence is a judgment made with the benefit of hindsight. Any danger to Kody from Duke only became apparent in hindsight. The analogy Mr. Barr gave was the risk of stumbling over uneven ground while carrying a child. Looking backward one sees the risk, which only becomes apparent with the benefit of hindsight. (I disagree. If that analogy is apt, then the risk is obviously apparent without resorting to hindsight.)

[226] Moreover, in a case of injury to a child there is a natural inclination to want to find fault but I am urged by the defence to resist that inclination, at least to the extent of any finding of criminal responsibility. The defence submits that finding fault with Matthews' behaviour is not hard to do but the level of fault is important. Matthews may have been negligent but his fault is no higher than that; to elevate the fault involved here to the level of criminal negligence is to take too much from the evidence.

Ms. Vanderlee's Submissions

[227] The defence concedes that Kody's injuries were traumatic, that is to say caused by the application of force. That force, they say, was accidental. Duke was the agency that caused those injuries.

[228] Ms. Vanderlee submits that I ought to reject the opinion of Dr. Hawisa that a collision with a large dog could not have caused Kody's injuries because Dr. Fernandes, said that he could not exclude such a possibility. Likewise, I ought to reject Hawisa's opinion that if a dog collision caused Kody's injuries there would necessarily be some cut to his skin or a skull fracture. Fernandes, with a great deal more experience than Hawisa and more expertise on issues of causation did not opine that a head laceration let alone a fracture would be required to cause lethal injury.

[229] There are other cogent reasons to reject Hawisa's opinions. Some of her observations were unreliable. She documented bruising on Kody's upper arms and there was none. But more importantly she was not open to reasonable suggestions and was not prepared to alter her opinions in the face of new facts; viz. the bi-lateral cheekbone bruises could not have come from the paramedics' use of a breathing mask; the diffuse bruises on Kody's back could not have been caused by chest compression on a hard table. Finally, and most importantly, she had no idea what an 80-pound Labrador retriever was and Duke had the added musculature of being half Bullmastiff.

[230] During my colloquy with Ms. Vanderlee, I advised counsel that I preferred Fernandes' opinions over Hawisa's where they conflicted.

[231] Ms. Vanderlee reminded me that Fernandes was prepared to concede that it was not beyond the realm of possibility, i.e., that he could not rule out that all of Kody's external injuries could have all been caused by a dog strike to his right cheek resulting in a propelled fall onto his left side.

[232] Since there was evidence that Kody could pull himself to standing and since the possibility of a dog/child collision causing all these injuries could not be ruled out, Ms. Vanderlee submitted that an unobserved incident occurred between Duke and Kody which resulted in Kody's injuries and his ultimate demise.

[233] This conclusion is particularly available when forces added by a collision are present, which increase the velocity of any fall and increase the prospect of more serious injuries.

[234] Moreover, when one takes Kody's less than rigorous constitution into account the prospects for a whiplash injury, with a rotational component, after being collided with by Duke increases the prospect of Kody sustaining injury and makes that scenario more likely.

[235] Alternatively, Ms. Vanderlee submitted that since the emergency room doctor in St. Catharines, (Dr. St. Amand), did not note any trauma to Kody's head or face and since Kody had to literally pass through so many hands before he got to PICU, there is a want of evidence that Kody sustained any external head trauma while he was in the Matthews' home. Given St. Amand's lack of any observation of facial or head bruising Ms. Vanderlee submits that that bruising cannot be attributable to any unlawful act beyond a reasonable doubt.

[236] I reject that submission. There are many reasons for my doing so. While there are several aspects of Dr. Hawisa's evidence that I am troubled by, her suggestion that St. Amand did not note these bruises because he was more concerned with the pressing matter of trying to keep Kody alive is not unreasonable. In addition, it is a commonplace that bruising sometimes takes time to become visible and Kody's DIC would certainly make his bruises more obvious as the hours passed. Moreover, St. Amand did not say that Kody did not have any bruises on his head, his note, (which was dictated but not read), that was filed as Exhibit 9, says, ( inter alia ), "There is no obvious trauma to his head." So, there are many possible reasons why St. Amand did not note bruising: (i) they were there but he did not bother to note them; (ii) they were there but he did not notice them; (iii) they were there but still faint; and, (iv) given the tenor of his note, he was simply saying that he saw no fracture or other "obvious" head injury. In any event, I reject the implication of this submission that some paramedic, nurse or doctor hit Kody in the cheek and caused that bruise and likewise that some medical responder clunked Kody's head against a hard surface.

[237] Moreover, while I do not accept this defence submission that the head bruises were caused some time after Kody was removed from the Matthews' home, that submission does not alter the fact that, according to Dr. Fernandes, Kody was in the throes of death while Matthews was on the phone to 911. That is to say, this defence submission does not speak to how Kody's brain injury was caused.

[238] Turning to the concept of a lucid interval Ms. Vanderlee observed that in Matthews' statements he refers to a period of time passing between when he learns of Kody being injured and Kody becoming flaccid. That period corresponds to an acknowledged medical phenomenon of which he would have no prior knowledge. That congruency between what the doctors term a lucid interval and what Matthews reported observing supports the credibility of his statements (I demur. Like the obvious urgency in his voice on the 911 call, the fact that Matthews describes a lucid interval does not speak to how Kody became injured.)

[239] In the result, the defence submits that the evidence is insufficient to found a conviction for manslaughter based upon the allegation of an unlawful act. The defence submits that it would be unsafe to convict as there is an alternative non-culpable explanation for Kody's condition.

The Defence Submissions on Criminal Negligence

[240] Ms. Vanderlee began by referring to paragraphs [144] and [145] of R. v. Creighton, [1993] 3 S.C.R. 3 submitting that those passages provide a roadmap to the concept of penal negligence:

144 The foregoing analysis suggests the following line of inquiry in cases of penal negligence. The first question is whether actus reus is established. This requires that the negligence constitute a marked departure from the standards of the reasonable person in all the circumstances of the case. This may consist in carrying out the activity in a dangerous fashion, or in embarking on the activity when in all the circumstances it is dangerous to do so.

145 The next question is whether the mens rea is established. As is the case with crimes of subjective mens rea, the mens rea for objective foresight of risking harm is normally inferred from the facts. The standard is that of the reasonable person in the circumstances of the accused. If a person has committed a manifestly dangerous act, it is reasonable, absent indications to the contrary, to infer that he or she failed to direct his or her mind to the risk and the need to take care. However, the normal inference may be negated by evidence raising a reasonable doubt as to lack of capacity to appreciate the risk. …

[241] While paragraph [145] goes on to deal with an allegation of lack of capacity the Defence concedes that there is no lack of capacity at issue here.

[242] Given the test as framed in Creighton Ms. Vanderlee submits that Brian Matthews exercised an appropriate standard of care in the way he supervised Kody given the dogs in his home. She submitted that it cannot be said that the Crown's alternative complaint about his behaviour rises to the level of a marked and substantial departure from the requisite standard of care.

[243] In that regard Ms. Vanderlee also referenced the following emboldened portion of paragraph [136] of Creighton; viz.:

136 ... The question of mens rea will arise only where it has been shown that the accused's conduct (the actus reus) constitutes a dangerous and unlawful act (as in unlawful act manslaughter), or a marked departure from the standard of care of a reasonably prudent person (as in manslaughter by criminal negligence, or penal negligence offences). …

[244] The defence submission remains that Matthews' actions, (if his statements are accepted or at the very least not rejected), do not amount to the actus reus of criminal negligence being a marked {now a marked and substantial} departure from the standard of care of a reasonably prudent person. His actions in leaving the children corralled in the living room with Duke does not amount to a marked departure and certainly not a marked and substantial departure from the standard of care. His child care behaviour did not amount to an imprudent act.

[245] Ms. Vanderlee was not prepared to concede that leaving an essentially immobile 13-month-old child unsupervised in the presence of a large dog was a marked and substantial departure from the standard of care of a reasonably prudent person. When I asked whether the test would be met if one left an eight-week-old baby unsupervised in the presence of a dog like Duke she was prepared to agree that the test would be met in that circumstance. But, counsel was not prepared to identify any other parameters that would or would not meet the test of criminal negligence in the circumstances of this trial, (other than to submit that what Matthews says he did did not amount to criminal negligence.)

[246] Ms. Vanderlee next turned to R. v. Tutton, [1989] 1 S.C.R. 1392 at paragraph [12]:

12 It is my view that the phrase "reckless disregard for the lives or safety of other persons" found in s. 202, when read in the context of Canadian criminal law jurisprudence, requires the Crown to prove advertence or awareness of the risk that the prohibited consequences will come to pass. This Court has adopted a subjective approach to recklessness in Pappajohn v. The Queen, supra, and has reaffirmed this in the recent case of Sansregret v. The Queen, supra. In doing so the Court has, I believe, implicitly rejected the view that failure to give any thought to whether or not there is a risk can be substituted for the mental state of recklessness as that view is articulated in the majority decisions in Commissioner of Police of the Metropolis v. Caldwell, [1982] A.C. 341 (H.L.) , and R. v. Lawrence, [1982] A.C. 510 (H.L.)

[247] Ms. Vanderlee submitted that the statements of Matthews that were adduced by the Crown demonstrate that he had no awareness of the risk of consequences of harm to Kody. To the extent that he said Duke would growl at the children if they touched his food while he was eating it or that Duke would jump at them, the defence submission is that awareness of those behaviours does not meet the risk of consequences mandated by Tutton. Growling does not foreshadow bodily harm and there was no evidence led by the Crown of aggressive behaviour by Duke to either Kody or C..

[248] The defence submission is that Matthews did not advert to there being any danger in leaving the children with the dog. But, the defence submits that if Matthews had given the matter any thought, then he would have found that course of conduct to be a supportable risk to be taken and that he would be correct in doing and not committing criminal negligence by taking that risk.

[249] More specifically, knowing that Duke would jump over the couch when it wanted to escape the living room, leaving Kody, (and C.), with the dog corralled in that living room does not amount to criminal negligence. The defence is prepared to concede that it might amount to bad judgment but no more than that.

[250] Returning to Tutton at paragraph [19] the defence insists Matthews' conduct does not amount to a showing of wanton or reckless disregard for the life and safety of Kody.

19 As I have suggested above, the words of the section can reasonably bear an interpretation which leaves room for the mental element of awareness or advertence to a risk to the lives or safety of others or wilful blindness to such risk. Conduct which shows a wanton or reckless disregard for the lives and safety of others will by its nature constitute prima facie evidence of the mental element , and in the absence of some evidence that casts doubt on the normal degree of mental awareness, proof of the act and reference to what a reasonable person in the circumstances must have realized will lead to a conclusion that the accused was aware of the risk or wilfully blind to the risk. (emphasis added)

[251] In support of this position Ms. Vanderlee says that as a matter of common knowledge many, many families live with dogs as part of the family and that children are raised with dogs in those homes, so much so that it cannot be said to be a marked and substantial departure to leave a child unattended with a dog. In her view, the act in question would not be found to be unreasonable by a large proportion of the population.

[252] Ms. Vanderlee next turned to R. v. J.F., 2008 SCC 60 at paragraph [7] to stress the following excerpt from that paragraph:

7 … Neither criminal negligence nor failure to provide the necessaries of life requires proof of intention or actual foresight of a prohibited consequence. Under both counts, the jury was required to determine not what the respondent knew or intended, but what he ought to have foreseen .

[253] Ms. Vanderlee maintains that Brian Matthews ought not to have foreseen that serious bodily harm could accrue to Kody by leaving him unattended. And in any event she submits that Matthews' actions do not amount to a marked and substantial departure from the conduct of a reasonably prudent parent as set out in paragraph [9] of J.F.:

9 On the count alleging criminal negligence, the Crown was bound to show that the respondent's very same omission represented a marked and substantial departure (as opposed to a marked departure ) from the conduct of a reasonably prudent parent in circumstances where the accused either recognized and ran an obvious and serious risk to the life of his child or, alternatively, gave no thought to that risk: R. v. Tutton , [1989] 1 S.C.R. 1392 , at pp. 1430-31 ; R. v. Sharp (1984) , 12 C.C.C. (3d) 428 (Ont. C.A.) .

[254] In short, the defence position is that the court ought to have a reasonable doubt about whether Matthews inflicted any injuries on Kody and further, since that only leaves the dog as the agent of the injuries, Matthews is not guilty of criminal negligence in leaving Kody unsupervised in the company of Duke, since the court should also have a reasonable doubt about whether his doing so amounts to a marked and substantial departure from the conduct of a reasonably prudent parent in the circumstances.

[255] Taking me through some dog-bite cases, Ms. Vanderlee stressed that there was no evidence that Duke was a dangerous dog and that he had no known propensity to be violent. Hence, no knowledge of any risk of violence from Duke can be imputed to or fixed on Matthews.

[256] It was the defence position that Kody's injuries resulted from an unforeseeable accident caused by a non-violent family pet. To the extent that Matthews admitted to any prior knocking down of Kody by Duke those incidents did not cause any bodily harm to Kody nor did they risk bodily harm being caused to Kody.

[257] In closing Ms. Vanderlee stressed, once again, the extreme level of negligence required to amount to criminal negligence, referring to paragraphs [46] to [48] of R. v. Vantroba, [2015] O.J. No. 1716 (SCO):

46 The test for criminal negligence set out in s. 219(1) of the Criminal Code requires the Crown to prove beyond a reasonable doubt that an accused's conduct or omission constituted a "marked and substantial departure from the conduct of a reasonably prudent person in the circumstances": See R. v. J.F. , 2008 SCC 60 , [2008] 3 S.C.R. 215 , at para. 9 .

47 This is a high standard of culpability. It is more than carelessness. It is more than civil negligence. In the context of the operation of a motor vehicle, it is beyond criminal conduct that would constitute dangerous driving, which requires that a vehicle be driven "ìn a manner that is dangerous to the public, having regard to all the circumstances". Criminal negligence requires not only a marked departure from the norm but also a substantial departure from the norm. This is consistent with the higher level of blameworthiness associated with the offence, namely wanton or reckless disregard for the lives or safety of others: See R. v. J.L. at para. 16 .

48 "The higher standard of a marked and substantial departure from the conduct of a reasonably prudent person applies to both the physical and mental elements of the offence:" See J.L. , supra.

[258] In the result, if I find that Kody was injured by Duke, the level of Matthews' culpability does not meet the standard for criminal negligence so that the Crown has failed to prove any illegal act that could make Kody's death a culpable homicide.

The Crown's Submission in Reply

[259] Ms. Gzik replied that there was cogent evidence that Matthews had reasonable foresight about the danger the dogs presented to the children. He said that he had wanted to "get rid of the fucking dogs". He said that Duke knocked Kody down "lots". The Crown submitted that he knew children were at risk from the dogs but he persisted in that risk despite adverting to it.

Discussion and Decision

[260] Kody Smart died on July 26, 2015 as a result of a traumatic brain injury suffered by him on July 25, 2015, while being cared for by Brian Matthews, who is Kody's paternal grandfather. The defence concedes that Kody's brain injury was caused by trauma and I would have found that to be the case whether they had made that concession or not.

[261] I have already reviewed the evidence and the submissions. This is a circumstantial evidence case. There is no direct evidence detailing how Kody came to be injured. The Crown's theory is that Matthews inflicted the trauma by assaulting him in a fashion that included a violent shaking together with at least one impact to his head. The Crown submits that that violent shaking was an assault and is the illegal act that Matthews committed which led directly to Kody's death, making that death the crime of manslaughter.

[262] In the alternative, the Crown's submission is that if I accept Matthews' statements that Duke caused Kody's plight, (or at the very least, if I do not reject those statements so that they remain to raise a reasonable doubt in my mind about whether or not the dog did it), then the illegal act committed by Matthews that led to Kody's death was an act of criminal negligence in allowing Duke unsupervised access to Kody.

[263] In either situation, it is the obligation of the Crown to prove to the exclusion of any reasonable doubt that Matthews is guilty of committing an illegal act that caused Kody's death. The evidence must be sufficiently convincing to displace the presumption of innocence that shields Matthews from criminal culpability.

[264] As this is a wholly circumstantial case, the law as presently explained by Justice Cromwell in R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 applies. In reviewing Villaroman here I, at times, quote from that judgment without specific attribution to particular paragraphs of that decision. At other times I have referenced the particular paragraphs in question.

Circumstantial Evidence and the Availability of Other Reasonable Inferences

[265] Originally, in circumstantial cases, a jury was obliged to be charged that not only must the circumstances be consistent with the accused having committed the act, but the jury was also told that it must also be satisfied that the facts are such as to be inconsistent with any other rational conclusion than that the accused was guilty.

[266] Over time the requirement for a charge in these terms was relaxed provided the jury was told that in order to convict they must be satisfied that the only rational inference that could be drawn from the circumstantial evidence was that the accused was guilty. A formulaic approach was rejected in favour of a charge that made the jury clearly aware of the necessity to find guilt only where it was established beyond a reasonable doubt.

A Self-Instruction on Circumstantial Evidence

[267] I must be alert to the dangers involved in drawing inferences from circumstantial evidence. I caution myself against filling in the blanks, jumping to conclusions or too readily drawing inferences of guilt. I caution myself that the process of inferential reasoning must be undertaken with a consideration of all of the evidence and its absence so that any assessments of the evidence are arrived at logically, taking human experience and common sense into account.

A Self-Instruction on Reasonable Doubt

[268] The requirement that the evidence be sufficient to satisfy me to the exclusion of any reasonable doubt is directed to another purpose altogether. That self-instruction "describes a state of mind – the degree of persuasion that entitles and requires a [fact-finder] to find an accused guilty. … Reasonable doubt is not an inference or a finding of fact that needs support in the evidence presented at trial: … The reasonable doubt instructions are all directed to describing for the [fact-finder] how sure they must be of guilt in order to convict." (Villaroman at paragraph [28].)

The Principles from Villaroman Continued

[269] So, in cases like this one, where proof of the elements of the offence depends exclusively on circumstantial evidence, the Supreme Court of Canada directs me to be cautious about and to be alert to too readily drawing inferences of guilt. The Court approves of but does not direct the following instruction as a succinct and accurate way of helping me guard against the risk of "filling in the blanks" too quickly and thereby overlooking reasonable alternative inferences: "an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits." (Villaroman at paragraphs [29] and [30].)

Must Non-Culpable Inferences Be Based on "Proven Facts"?

[270] Villaroman settles and confirms that in assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. "The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown's evidence does not meet the standard of proof beyond a reasonable doubt." (Villaroman at paragraph [35].)

[271] A reasonable doubt or a theory alternative to guilt is not "speculative" merely because it arises from a lack of evidence. A gap in the evidence may result in inferences other than guilt. But, those inferences must be reasonable given the evidence and the absence of evidence assessed logically and in light of human experience and common sense. (Villaroman at paragraph [36].)

[272] When assessing circumstantial evidence the trier of fact should consider other possible theories and other reasonable possibilities which are inconsistent with guilt. So, while the Crown may need to negative these reasonable possibilities, it certainly need not negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused. Other plausible theories or other reasonable possibilities must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. (Villaroman at paragraph [37].)

Distinguishing Between a Plausible Theory and a Speculation

[273] While Justice Cromwell conceded that it is not always easy to distinguish between a plausible theory and speculation the litmus test is whether the circumstantial evidence, viewed logically and in the light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty. (Villaroman at paragraph [38].) He provides two statements of this principle that he felt could not be described with greater clarity than it is in these two passages.

[274] The first passage is from an Australian case, (Martin v. Osborne, 55 C.L.R. 367, at page 375.) Cromwell states that the following quotation is a helpful expression of the principle that to justify a conviction the circumstantial evidence assessed in the light of human experience should be such that it excludes any other reasonable alternative. It is helpful because it assists one in identifying the line between plausible theory and speculation.

In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation. This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed. [emphasis added by Justice Cromwell.]

[275] The second useful expression of the test to distinguish between plausible theory and speculation comes from the Alberta Court of Appeal's decision in R. v. Dipnarine, 2014 ABCA 328, 584 A.R. 138 at paragraphs [22], [24] and [25], which support the following propositions.

• Circumstantial evidence does not have to totally exclude other conceivable inferences.
• The trier of fact should not act on alternative interpretations of the circumstances that it considers to be unreasonable.
• Alternative inferences must be reasonable, not just possible.

Possibilities and Reasonable Doubt

[276] Picking up on this last bullet point, the Ontario Court of Appeal in R. v. R.A., 2017 ONCA 714, [2017] O.J. No. 4772, confirmed and applied this principle at paragraph [62] where, relying on Villaroman they wrote: "A mere possibility that alternative explanations are true does not raise a reasonable doubt. Reasonable doubt depends upon reasonable possibility, not conjecture …"

[277] Not being able to exclude the possibility of a circumstance is not a finding that that circumstance obtained. At best it is an acknowledgment that the circumstance is a mere speculative possibility. (See R. v. DeGoey, [2005] O.J. No. 2063 (C.A.) at paragraph [35])

[278] R.A. Clark J.'s observation in R. v. Regan, [2005] O.J. No. 2355 (SCO) where he was sitting as a summary conviction appeal court at paragraph [67] is more direct: "[i]t is trite to observe that a mere possibility does not amount to reasonable doubt."

The Application of R. v. W.(D.), [1991] 1 S.C.R. 742

[279] The defence submitted that the Crown did not meet the high burden of proof that is cast upon the prosecution in a criminal case. R. v. Lifchus, [1977] 3 S.C.R. 320, explains that proof beyond a reasonable doubt sets a standard of proof that is higher than a mere balance of probabilities, albeit less than proof to an absolute certainty. By way of a clarification that leaves no room for misunderstanding, the Supreme Court of Canada in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 explained that the reasonable doubt standard falls much closer to absolute certainty than to a mere balance of probabilities.

[280] In order to ensure against making any inadvertent error a court cannot go wrong by following paragraphs [27] and [28] of R. v. W.(D.), [1991] 1 S.C.R. 742. Those paragraphs provide the following series of precepts and questions that are designed to ensure that the burden of proof and the presumption of innocence are the framework within which the Crown's allegations are assessed.

27 In a case where credibility is important, the trial judge must instruct the jury that the rule of reasonable doubt applies to that issue. The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. (reference to citations in the original omitted)

28 … A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

[281] In this case there is an interplay between W.(D.), Villaroman, the expert evidence and the effect that "possibilities" may have on the issue of reasonable doubt.

[282] This, as I have repeatedly noted, is a circumstantial case. In a circumstantial case an inference of guilt drawn from circumstantial evidence must be the only reasonable inference that such evidence permits. It is conceded that Kody died from a traumatic brain injury. There are only two possible sources from which he could have acquired that injury: either Matthews inflicted an assault on Kody that caused him to suffer that brain injury or Duke crashed into Kody propelling Kody onto the hardwood floor which precipitated his brain injury. The latter, of course, is the defence's position.

[283] The only source of evidence in support of the defence position comes from the statements of Brian Matthews that the Crown led as part of its case. The defence position is that those statements are credible and supported by the opinion of Fernandes who conceded that it was possible that a collision with a dog could cause the kinds of injuries Kody suffered and it was also possible to envision a scenario where all of Kody's injuries could have been sustained by him as a result of one single collision.

[284] So, Matthews' credibility is paramount. If I believe Matthews' denials of having assaulted Kody then, unless he is guilty of criminal negligence, I must find him not guilty of manslaughter. Second, even if I do not believe Matthews' denials of assaulting Kody but I still have a reasonable doubt as to his guilt after considering his statements in the context of the evidence as a whole, then once again, unless he is guilty of criminal negligence, I must find him not guilty of manslaughter.

[285] In either of those circumstances I would necessarily have to arrive at those conclusions, (unless he is guilty of criminal negligence), because it could not be said that an inference of guilt drawn from circumstantial evidence would be the only reasonable inference that such evidence permits. That is because when assessing circumstantial evidence the trier of fact must consider other possible theories and other reasonable possibilities which are inconsistent with guilt. So, I turn to the credibility of Brian Matthews.

The Credibility of Brian Matthews

[286] In assessing whether I believe the statements made by Brian Matthews or whether, even if I don't believe them, I do not reject them, I must consider their content, the circumstances in which they were made, whether they are internally consistent or if inconsistent to what degree. If there are any inconsistencies are they on peripheral matters or are there inconsistencies of substance? In addition to considering whether his statements are consistent or not, I also need to consider the content of his statements when assessed against other evidence that I do accept.

[287] In that regard, the credibility of Matthews is starkly conflicted with the opinion evidence of the two expert witnesses. I am alert to a forbidden line of reasoning which has the capacity to subvert the onus and burden of proof; i.e., I accept the opinion evidence of the experts; their evidence differs from Matthews' evidence on material matters; therefore I do not believe Matthews. I specifically caution myself to avoid rejecting Matthews' evidence merely because I accept much of the evidence of Dr. Hawisa and almost all of the evidence of Dr. Fernandes.

[288] In R. v. Y.M., [2004] O.J. No. 2001 (C.A.) the court explained that this forbidden line of reasoning has the tendency to shift the burden of proof onto the accused to explain away the conflicting evidence. The court went on to note that a total rejection of an accused's evidence to the point where it did not even leave a reasonable doubt without any explanation is unsatisfactory. In these circumstances, the absence of any explanation for rejecting totally the appellant's evidence strongly suggests that he was disbelieved because a Crown witness was believed. This approach ignores the burden of proof.

[289] Therefore, out of an abundance of caution, I specifically note that it is not necessary for me to believe or accept Matthews' statements for there to be a reasonable doubt. Even if I believe the prosecution witnesses, the evidence as a whole may leave me with a reasonable doubt. As it was put by Cory J. in W.(D.) at p. 743, the trier of fact must acquit even if he or she does not believe the accused's evidence because they have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole".

Were Matthews' Statements Consistent?

[290] The short answer is that they are not consistent. Matthews' statements are inconsistent in a number of material respects. The following chart is an attempt to delineate some of those inconsistencies. I have not included Matthews' statement to his wife as the information that he conveyed to her was generic and non-specific and Jaclyn Matthews claimed the spousal privilege accorded to her by the Canada Evidence Act, which was reviewed by me earlier in this judgment.

	Dog Noise	C.	Kody's position	What Matthews heard	NB times	What he initially found when he checked on Kody	Kody's subsequent condition	Misc.
911 Call			He was sitting on the floor or standing up against the couch, earlier.			Kody was sitting on the floor and he seemed fine. He didn't cry.	Kody was not crying. He was sitting on the floor and just started to shake and fell back.
O'Neill						After getting knocked over Kody got up and started playing	Two minutes later Kody had a seizure and became unresponsive
Hamilton			Kody was in the living room playing with his toys.	He heard Kody cry.		He picked Kody up and held him for a few minutes, then put Kody down and Kody started playing again.	Very roughly 20 minutes later Matthews checked on Kody and found him unresponsive in the living room.
Southcott	He heard a dog bark.	She was in the living room.		He heard a little thud and thought nothing of it.	Maybe 10 minutes later he checked on Kody.	Kody was prone and not crying. He sat Kody up by his blocks.	Maybe 20 minutes later, if that, Kody started to shake and then he went back and remained unresponsive ever since.
Isherwood		C. was not in the living room.	Kody was sitting in the middle of the living room playing with his blocks	Matthews never heard Kody cry.				His denial of statements made.

[291] There are a number of inconsistencies in what Matthews reported. The defence submitted that they can be explained away by the emotion that he was suffering at the time he made the statements or by the chaos of people about when he made these statements. Similarly, the defence submitted that some of his recipients were also too emotionally involved in the tragic circumstances to be reliable historians of what they were told by Matthews.

[292] With the exception of Brooke O'Neill, I reject those submissions. O'Neill's recollection and notes are not reliable for the reasons outlined earlier. But, the statements that Matthews made that were audio or digitally recorded statements are reliable and exact. Indeed, the 911 operator asked Matthews to tell her "exactly" what happened. Detective Southcott asked for precision and completeness from him, too. In each of those cases no one else was about. It is true that Matthews was panicked by Kody's condition when he called 911 but he was responsive to that operator's questions and able to follow her instructions and the first-responders had not yet arrived. Likewise, he spoke to Southcott one-on-one.

[293] In my view, P.C. Glen Hamilton conducted an extremely competent interview. I find he accurately recorded the information that Matthews provided to him. He rehearsed his notes, so to speak, by relating the information that Matthews provided to him twice, to two different Sergeants before documenting it in his notebook and that documentation was entered within a short time after Matthews answered Hamilton's questions. In addition, their interview was privately conducted, away from the hubbub in the kitchen.

[294] In the result, I do not find the Defence's explanation for these inconsistencies to be convincing, with the exception that the passage of time from July 25th to November 2nd needs to be taken into account when considering any inconsistencies between what he said to Isherwood and what he said to others on the earlier occasion.

[295] Kody's location in the living room: During the 911 call Matthews said that he left Kody sitting on the floor or standing up against the couch. The obvious implication of that comment is that Matthews witnessed Kody standing by the couch. However, he told Southcott that Kody was sitting on the living room floor playing with his toys and he was even more specific to Isherwood saying that Kody was in the middle of the living room sitting on the floor playing with his blocks.

[296] What Matthews heard: He told Hamilton that he heard Kody cry. He told Southcott that he heard a little thud but thought nothing of it. He waited about ten minutes before going into the living room to check on Kody. He told Isherwood that he never heard Kody cry.

[297] What Matthews initially found when he checked on Kody: Matthews told the 911 operator that upon checking on Kody after the dog jumped over the couch Kody was sitting on the floor and he seemed fine. He did not cry. I note that in this iteration Matthews says that after the dog jumped over the couch Matthews found Kody sitting on the floor, and seemingly fine. He told O'Neill that after getting knocked over he got himself up and started to play. (I appreciate that O'Neill may be unreliable but the discrepancies between the versions of Matthews' retellings are being noted.) He told Hamilton that he picked Kody up and held him for a few minutes and then put Kody down and Kody started playing again. He told Southcott that Kody was prone on the floor when he went to check on him and that he sat Kody up by his blocks.

[298] Kody's subsequent condition: Matthews told the 911 operator that Kody was not crying. He was sitting on the floor and just started to shake and fell back. I note that the implication of this statement is that Matthews is describing something that he has just witnessed. O'Neill testified that Matthews told her that two minutes after he first checked on Kody, Kody has a seizure and became unresponsive. Under close questioning from Hamilton, Matthews said that very roughly 20 minutes passed after the time he first checked on Kody and when he went to check on him again. When he did so he found Kody unresponsive in the living room. I note that in this version Matthews does not see Kody sitting on the floor and he does not see Kody begin to shake and fall back.

[299] C.'s location: Matthews told Southcott that C. was in the living room with Kody. Several months later he told Isherwood that while he did not know where C. was he was adamant that C. was not in the living room with Kody. I find that contradiction quite puzzling. The whole point of corralling the children in the living room was to prevent C. from getting into mischief if she was free to wander around the house. That is the reason that Matthews gave for locking the two children in the living room with the dog.

[300] Beyond the frame of "dog hits boy" there are major substantive differences among the several versions of the events that Matthews is purporting to describe. If you were to attempt to block out what he describes in each version you would, in my view, produce a substantively different performance in each staging.

How Matthews' Statements Align with Other Evidence

[301] Beyond being internally inconsistent with each other, Matthews' statements blaming Duke are inconsistent with other evidence including evidence concerning Kody's mobility and especially the medical evidence.

[302] Dealing with Kody's mobility, there is some evidence from Jaclyn Matthews that Kody could not raise himself into a standing position without adult help. Despite that evidence I am satisfied, based upon the evidence of Taylor Matthews and Dr. Sinton, that Kody could crawl and that he could independently hoist himself into a standing position using a secure piece of furniture to grab onto. So, I accept the premise that Kody had the physical ability to crawl from the middle of the living room to the loveseat that Duke is said to have jumped over. I accept that Kody could pull himself up to a standing position.

[303] Matthews' statements that Duke knocked Kody down when the dog jumped over the loveseat is inconsistent with the expert medical opinions of Dr. Hawisa and Dr. Fernandes. I have found a number of faults in Hawisa's evidence. Despite the weaknesses that I have noted previously Hawisa did concede in her report that she could not rule out severe accidental head trauma as a possible cause of Kody's injuries. Although she made that concession she steadfastly rejected a dog-child collision as even possibly being the accident that caused Kody's traumatic brain injury. Moreover, while she accepted that she could not rule out accidental trauma her view was that this was an inflicted injury.

[304] Her opinion that Kody's condition was the result of an inflicted injury is supported by and concurred in by Dr. Fernandes. I accept and rely upon the opinion evidence of Dr. Fernandes save in one respect. I do not accept his concession that the dog scenario described to him was "plausible". He was, I find, prepared to agree that, in theory, it was possible to envision a complex fall resulting from the collision of a dog with a child that could cause the child a lethal brain injury, provided sufficient force was present.

[305] However I do not accept that he intended to say nor that he in fact said that it was plausible, i.e. that it was probable that that is what happened to Kody. Quite the contrary, I find that he was of the opinion that Kody suffered an inflicted brain trauma as a result of being violently shaken and that it was likely that Kody's head was impacted on a hard surface during that violent shaking.

[306] There are features of Fernandes' evidence that I found compelling. He gave his evidence in a very fair and measured manner in which his expertise and erudition were obvious. Additionally I was impressed with both the thoroughness of his postmortem examination and the research that he undertook before coming to testify.

[307] Fernandes said two things that I particularly rely upon. 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 a dog had collided with a child resulting in fatal injury to the child.

[308] Moreover, when you parse the defence theory that the dog did it; that Duke struck Kody as Duke jumped over the loveseat to escape being penned up in the living room, the likelihood of that supposition having actually occurred diminishes to nothing.

[309] All of the following events would have had to occur at just the right time, in just the right sequence, at just the right angles of collision with just the right forces being exerted causing just the right deflections. Kody would have had to crawl over to the couch and manage to pull himself up to a standing position at a spot that just happened to be to the left of where Duke was just at that moment that the dog decided to try to escape from the living room. The spot where Kody was then standing had to be in a place that exposed his right cheek to Duke. Duke would, while Kody's right cheek was turned "just so", have elected to leap either onto the sitting area of the couch or over it completely – the manner of the dog's proclivity for jumping over the couch was never clearly described in the evidence. Duke would have had to jump at just the moment that Kody's cheek was exposed to the dog and the dog would have had to somehow, with some portion of its body, strike Kody's cheek with just the right amount of force to cause Kody's head to accelerate both forward and rotate to the left. This same glancing blow, – it seems to me that it would have to be a glancing blow – would have to be sufficient to cause Kody to fall somehow onto his left side. Kody would have had to have fallen in a fashion that caused him to strike his left parietal region and his left forehead on the floor at the same time as he somehow also managed to strike his left front shoulder on the floor. All of this would have had to have happened, once again, "just so", and with enough force to cause the traumatic brain injury that Kody sustained, along with the internal neck injury that he suffered.

[310] 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.

[311] Finally, Fernandes felt it would be a speculation for him to suggest that Kody's right shoulder exhibited a bruise that mirrored the one on Kody's left shoulder. He explained, and the photographs show, that the bruise on the right is larger and more pronounced than the one on the left. Further, the one on the right is riddled with therapeutic needle punctures. Given the medical opinion evidence, the inconsistencies in Matthews' statements and the colossal improbability that Kody's injuries could have been caused by Duke, I am of the view and I find that there are mirrored bruises on the front of Kody's shoulders. These shoulder bruises are in the position and location that one would expect an adult's thumbs to be positioned in, if an adult had grabbed Kody under his armpits and around his torso and shook him violently.

W.(D.) redux

[312] From the foregoing paragraphs it should be apparent that I do not believe Matthews' statements that Duke did it. The discrepancies and inconsistencies in the statements are too great to be believed.

[313] Moreover, being mindful that the trier of fact must acquit even if he or she does not believe the accused's evidence because the trier of fact may have a reasonable doubt as to the accused's guilt "after considering the accused's evidence in the context of the evidence as a whole", I reject Matthews' statements so that they do not raise a reasonable doubt in my mind that Kody's condition was the result of an accident with Duke.

[314] I reject his statements because as I have tried to explain, they are too inconsistent to be credited. In addition, they are inconsistent with the evidence of Dr. Fernandes that I do accept. And, those statements posit a collision that is simply unbelievable for the reasons I have tried to explain.

[315] In this regard I apply the lesson from Villaroman; namely that circumstantial evidence does not have to totally exclude other conceivable inferences but that one should not act on alternative interpretations of the circumstances that it considers to be unreasonable, as I do with respect to the dog scenario. Finally, the alternative inference must be reasonable, not just possible, which is all that Fernandes conceded the dog scenario to be – a theoretical possibility that he could not exclude.

[316] In assessing and weighing the complete contents of Brian Matthews' statements I have considered their content while taking the balance of the trial evidence into account.

[317] I have not treated the matter as a credibility contest in which I prefer Fernandes over Matthews. Rather, I have considered Matthews' statements in their entirety, in the light of the whole of the evidence adduced.

[318] As I have taken pains to make clear in carrying out this assessment and in applying W.(D.) I recognized that one possible outcome of such an assessment is that I could be left with a reasonable doubt concerning the guilt of the accused despite not accepting his evidence. I am not.

[319] As I do not believe Brian Matthews' statements that Duke did it and as I reject his denials of wrongdoing in those statements, (so that I am not left in a state of reasonable doubt about his guilt as a result of those statements), I must go on to ask myself whether, based upon the evidence that I do accept; [viz.: Taylor Matthews, Dr. Sinton, much of Dr. Hawisa, almost all of Dr. Fernandes, and the exhibits] has the Crown has proved the guilt of Brian Matthews to the exclusion of any reasonable doubt? It has.

[320] I find that Brian Matthews violently shook Kody Smart and that in doing so Matthews also managed to knock Kody's left forehead and left parietal scalp area against some hard surface, very likely the kitchen table, (though I need not make a firm finding in that regard). Matthews also slapped the child hard across the right cheek. While he likely did so in anger or frustration, he may have done so in an attempt to rouse Kody after Kody became limp and unresponsive after being shaken by him. So far as Kody's cheek bruise is concerned, I cannot be certain which motivation was operative despite my prior finding of fact.

[321] The violent shaking of Kody by Matthews amounts to an assault as it was an intentional application of force that was not legally justified. That is the illegal act that resulted in Kody's death from the traumatic brain injury that was caused by this assault. In the result, I find Brian Matthews guilty of manslaughter for causing the death of Kody Smart.

[322] Clearly, Brian Matthews did not intend to kill his grandson. Further, 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.

[323] 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.

[324] While considerable time during this trial was spent on the issue of whether leaving a 13-month-old child unsupervised in the presence of a large dog amounts to an act of criminal negligence, any comment that I might make about that issue would amount to obiter dicta in light of the finding that I have come to; and so, I decline to broach that issue any further.

Dated at St. Catharines this 11th day of January 2018.

J.S. Nadel, (OCJ)