R V. Shayla Woodford 5pr33

COURT OF QUEEN’S BENCH OF MANITOBA B E T W E E N: HER MAJESTY THE QUEEN,

) ) ) - and ) ) ) SHAYLA ELYSHIA JUNE WOODFORD, ) ) accused. ) ) ) )

APPEARANCES: Daniel P. Chaput and Shannon D. Benevides for the Crown Ian P. McNaught and Hillarie A. Tasche for the accused JUDGMENT DELIVERED: January 8, 2016

GREENBERG J. [1]

In the early hours of December 2, 2012, Shayla Woodford got into a fight with

her common law partner, Samantha Anderson, and Samantha’s two sisters, Jasmine Anderson and Amber Anderson. (For ease of reference, I will refer to all parties by their first names.) In the course of that fight, Shayla stabbed Samantha with a knife, causing her death.

She also stabbed Jasmine.

As a result, she was charged with

second degree murder and assault with a weapon.

[2]

Shayla does not dispute that she used a knife in the fight and that she caused

Samantha’s death.

However, she says that she was jumped by the three sisters and

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Date: 20160108 Docket: CR14-01-33521 Indexed as: R. v. Woodford Cited as: 2016 MBQB 1 (Winnipeg Centre)

2 was acting in self-defence and that she should be acquitted of both charges. In any event, she says that she did not have the mental state for murder. So, at most, her

BACKGROUND

[3]

Shayla and Samantha were in a tumultuous “on again/off again” relationship for

three or four years. On August 5, 2011, Shayla entered guilty pleas to three counts of assaulting Samantha.

The assaults involved slapping, punching and biting and were

fuelled by jealousy and/or alcohol.

At the time of the incident that gave rise to the

charges before the court, Shayla was still on probation for these offences and, in spite of an order not to Samantha, she was living with Samantha in a two bedroom suite, along with Samantha’s sisters, Amber and Jasmine, and Amber’s two-year-old son, Julius.

[4]

On the evening of December 1, 2012, Shayla and Samantha went out to buy

alcohol. They bought a six pack of Budweiser beer and a couple of two litre bottles of Rockaberry, a type of cooler.

At about 9:30 p.m., Samantha’s 13-year-old brother,

Mason Anderson, came over to babysit for Julius while the four women drank. The night ended with Mason calling police just before 2:00 a.m. to report that his sister had been stabbed.

[5]

Jasmine, Amber and Mason all testified as to what happened in the four or five

hours after Mason arrived. Their evidence disclosed that, at some point in the evening, Shayla and Samantha got into an argument in the kitchen of the suite which ended with Samantha having a bleeding lip.

Shayla started to pack her bags to leave but

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actions amounted to manslaughter.

3 Samantha convinced her to stay. The four women continued to drink. When they ran out of alcohol, Shayla and Samantha went out and bought two more two litre

argument was between Samantha, Amber and Shayla over a missing cooler. It is not clear whether this happened before or after the outing for more liquor. In any event, Shayla and the three sisters continued to drink in the bedroom while Mason and Julius watched television in the living room.

[6]

It is not entirely clear how the fight that led to Samantha’s death unfolded.

Shayla did not testify and there were some discrepancies in the evidence of Jasmine, Amber and Mason. I believe that all three siblings were trying to be truthful. In my view, the discrepancies in their evidence were because the fight occurred very quickly, because Jasmine and Amber’s memory may be clouded to some extent by alcohol and because the three were observing the incident from different vantage points.

[7]

According to Jasmine, the fight started with Shayla and Amber arguing about

housework. The argument became physical when Amber punched Shayla. Amber and Shayla were on the bed kicking each other.

Then Jasmine ed in and punched

Shayla and Shayla hit her back. Shayla got up off the bed and went into the drawer of the dresser. Shayla had her back to Jasmine with Samantha standing on the other side of her. Jasmine saw Samantha fall to the ground. She did not realize that Samantha had been stabbed until she later saw her on the floor.

[8]

According to Amber, Shayla and Samantha were fighting and she stepped in to

help Samantha.

She pushed Shayla onto the bed and held her down.

She started

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Rockaberry coolers. At some point in the evening, there was a second argument. This

4 punching and kicking Shayla.

She told Jasmine to hold Shayla down too. Jasmine

punched Shayla. Amber acknowledged that it was a two-on-one fight. Samantha was

the dresser where she began digging around the top drawer. Amber and Jasmine were still on the bed. Shayla’s back was towards them. Amber then saw Samantha collapse on the floor.

[9]

Neither Amber nor Jasmine actually saw Shayla stab Samantha, although it is not

disputed that she did. Both Amber and Jasmine said that, after Samantha collapsed, Shayla came after them. She was holding a steak knife. They began struggling with Shayla.

Amber got the knife from Shayla and gave it to Jasmine who put it in her

pocket. Shayla then went to the dresser and started packing her things. Jasmine said that Shayla said, “Sorry, Jas,” to her and, “Sorry, baby,” to Samantha.

During the

course of the struggle over the knife, Amber was bitten on the arm and Jasmine was cut on her upper lip and on her arm. Jasmine did not realize that she had been cut until Amber pointed it out to her.

[10] Mason’s version of what happened is as follows. He went into the bedroom to check on his sisters because he heard yelling. He was standing in the doorway. He saw his three sisters fighting with Shayla. Amber started kicking Shayla; then Jasmine started to punch her and Shayla punched back. Shayla.

Then Samantha started punching

Shayla managed to get up and started digging around the dresser drawer.

Mason said that Shayla grabbed a knife from the drawer and started swinging the knife backwards.

He demonstrated Shayla’s movements with the knife in a way that

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yelling at her and Jasmine to leave Shayla alone. Shayla broke free and stood up by

5 suggests she was flailing rather than aiming it at anyone.

In his videotaped police

statement, which was introduced in evidence, Mason said that he saw Jasmine get A t trial, he said he was

mistaken about who was stabbed. He now realizes it was Samantha who was stabbed in the chest. The incident happened very quickly.

[11] According to Amber and Jasmine, Samantha was standing and facing Shayla when she got stabbed. While they did not actually see the stabbing, their description of the positions of Shayla and Samantha and their evidence that they saw Samantha fall before Shayla turned towards them suggest that Samantha was struck by a thrust of the knife rather than by the flailing action described by Mason. I find the evidence of Amber and Jasmine to be more reliable on this point. Mason was not in the room when the fight started.

It is not clear at what point he walked into the room and he was

mistaken about whom Shayla had stabbed. The flailing motion that Mason described more likely occurred when Amber and Jasmine were struggling with Shayla over the knife after Samantha had been stabbed.

[12] Police arrived on scene shortly after being called by Mason and arrested Shayla on the doorstep of the house as she was leaving.

Samantha was taken to hospital

where she died three weeks later without having regained consciousness. The cause of death was a single stab wound to the left side of the chest which penetrated the heart. The pathologist who performed the autopsy described the knife wound as a penetrating type of wound, not a slashing type of wound, but said that it would have required

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stabbed in the chest and that Samantha was also stabbed.

6 minimal force to inflict. He testified that one can push a knife into a person’s chest with pressure from a single finger.

her fingers.

Photographs taken of her also show bruising and a cut on her jaw and

bruising around her eye and on her neck. ISSUES

[14] As I said, the defence does not dispute that Shayla caused Samantha’s death by stabbing her with a knife, nor does it dispute that Jasmine was injured with the same knife. However, it is the defence position that Shayla was acting in self-defence when she stabbed Samantha and struck Jasmine with the knife. Alternatively, the defence argues that, if the Crown has established that the stabbing was an unlawful act, considering the alcohol consumed by Shayla and the other circumstances surrounding the incident, it has not established the mens rea for murder.

[15] Because the self-defence provisions of the Criminal Code were amended after the charges in this case arose, the first issue to consider is whether the case is governed by the new or the old provisions. ANALYSIS

Are the new self-defence provisions restrospective?

[16] The self-defence provisions of the Code that were in effect at the time of the incident that gave rise to the charges before the court were the subject of criticism by judges and academics for many years because they were overly complex, inconsistent and, quite simply, impossible to explain to jurors. In R. v. Lei (1997), 123 Man. R. (2d) 81 (C.A.), Scott C.J.M. adopted the blunt comments of Watt J. (as he then was,

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[13] Shayla had several injuries when police arrived. She was bleeding from cuts to

7 speaking at the National Criminal Law Program) to explain the dilemma created by the provisions:

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15 In the 1996 National Criminal Law Program on Substantive Criminal Law, Watt, J., had this to say about self-defence (at vol. 2, sec. 16.6): The defence of person provisions of the Criminal Code, it has been recently observed, are highly technical, excessively detailed and deserving of much criticism. The sections overlap and, in certain respects at least, are internally inconsistent. The relationship amongst the provisions is, on a clear day, murky. A summing-up on the issue of self-defence is, at best confusing, more likely to leave jurors in a dissociative or catatonic state. "Instruction" on selfdefence is a oxymoron. It is the profound suspicion, if not unshakeable belief of many trial judges, that jurors get it right on the issue of self defence notwithstanding the summing-up, not because of it. The defence of person regime currently in place in the Criminal Code is badly in need of legislative reconstruction.

[17] In 2012, Parliament responded to the criticism by enacting the Citizen’s Arrest and Self-defence Act, S.C. 2012, c. 9.

(The amendments came into effect on

March 11, 2013.) The comments of the Minister of Justice in introducing the new selfdefence provisions, and the “Technical Guide for Practitioners” that was issued by the Department of Justice when the provisions came into effect, indicate that the amendments were intended to clarify the law, not to change it in a substantive way (see R. v. Pandurevic, 2013 ONSC 2978, 298 C.C.C. (3d) 504). Nevertheless, there is a debate in the case law as to whether the new provisions are retrospective.

In

Manitoba, my colleagues have held that they are retrospective (see R. v. Atkinson, 2013 MBQB 264, 297 Man. R. (2d) 298; R. v. Knott , 2014 MBQB 72, 304 Man. R. (2d) 226). However, in this case, the Crown relies on decisions of the Ontario and British Columbia Courts of Appeal rendered after the Manitoba decisions, both of which find that the new provisions are prospective only ( R. v. Evans, 2015 BCCA 46, 321 C.C.C.

8 (3d) 130; R. v. Bengy, 2015 ONCA 397, 325 C.C.C. (3d) 22). In R. v. Green, 2015 QCCA 2109, the Quebec Court of Appeal followed suit.

does judicial comity require me to follow the decisions of my brother judges. However, I am inclined to follow my colleagues because I agree with the approach they have taken.

The rift in the cases seems to turn on whether the new provisions make

substantive changes to the law and, therefore, should be presumed to be prospective only or whether the clear legislative intent was for the amendments to be retrospective. In my view, it is evident from the legislative history that Parliament’s intent was no t to change the substance of the law but to simplify the analytical framework for assessing the defence. As Parliament’s intent was to make the law more -friendly, it would make sense that it also intended the revised law to be immediately available to decision-makers.

As stated by MacDonnell J. in Pandurevic, at par. 43, requiring

courts to continue to apply legislation that has been recognized as incomprehensible would “frustrate the remedial aims of the legislation.”

[19] That being said, on the facts of this case, I would come to the same conclusion on the issue of self-defence whether I applied the old law or the new, because regardless of which provisions are applied, the essence of the analysis is determining whether the actions of the accused were reasonable or proportionate in the circumstances.

While the new s. 34 specifically states the factors the court should

consider in assessing reasonableness, those stated factors reflect factors which the jurisprudence had recognized as relevant under the old provisions. Under both the old

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[18] I am not bound by the decisions of appellate courts from other provinces, nor

9 and the new provisions, the onus is on the Crown to disprove the elements of the defence beyond a reasonable doubt.

Under the New Provisions

[20] Under the new provisions of the Code, self-defence has three elements: 1)

the accused believes on reasonable grounds that force or a threat of force

was being made against her; 2)

the accused acted to defend herself from that force, and

3)

the accused’s actions were reasonable in the circumstances.

[21] The Crown concedes the first element is present in this case. [22] Insofar as the second element is concerned, the Crown says that Shayla was acting out of anger and not to defend herself. As I explained, the evidence of the three eyewitnesses is not consistent as to exactly how the fight unfolded. But what is clear, in fact the Crown concedes, is that Amber started the fight. It is also clear that the fight unfolded very quickly and that Shayla was acting in response to being attacked by the others. While Shayla did not testify, it is logical to infer that, at least initially, she was acting to defend herself.

[23] In my view, the real issue in this case is whether her actions were reasonable in the circumstances. I am satisfied that the Crown has established beyond a reasonable doubt that they were not. Section s. 34(2) of the Code lists the following factors as relevant in considering the reasonableness of the accused’s actions: (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

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Has the Crown disproved self-defence?

10 (a) the nature of the force or threat; (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;

(d) whether any party to the incident used or threatened to use a weapon; (e) the size, age, gender and physical capabilities of the parties to the incident; (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat; (f.1) any history of interaction or communication between the parties to the incident; (g) the nature and proportionality of the person’s response to the use or threat of force; and (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

[24] It appears that the fight that led to the stabbing started with an argument between Shayla and Samantha, although it is not clear whether this argument became physical.

But it is clear that Amber jumped in and threw Shayla on the bed. Then

Jasmine got involved.

Both were kicking and punching Shayla. Shayla was fighting

back but it was not an even fight, first, because it was a two-on-one fight and, second, because one of the aggressors, Amber, is bigger than Shayla. Amber testified that she is 5’6” tall. While I did not hear any specific evidence of Shayla’s height or weight, my observation of her in the courtroom was that she is a petite woman. Cst. Masi testified Shayla was a few inches shorter than her and Cst. Masi is 5’ 5½” tall.

[25] It was not unreasonable for Shayla to fight back when assaulted by Amber and Jasmine. One would expect her to do so. Crown counsel agreed that, if Shayla had fought back by punching, kicking and biting, her actions would have been reasonable.

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(c) the person’s role in the incident;

11 But that is not what Shayla did and I agree with the Crown that her response was not proportionate to the force of the attack on her. Shayla was able to break away from

others were unarmed. Shayla did not testify and I cannot infer from the evidence why she believed that she needed a knife to defend herself or why she did not simply leave the room once she was able to escape from the brawl on the bed.

[26] It is also not clear why Shayla would stab Samantha in response to an assault by her sisters.

According to both A mber and Jasmine, Samantha was standing by the

dresser when Shayla stabbed her. There is no evidence that Samantha was touching or threatening her at the time.

That is to say, there is no evidence that Shayla was

defending herself from an assault by Samantha when she stabbed her.

[27] The Crown led evidence as to the history of the relationship between Shayla and Samantha. Shayla had been violent towards Samantha in the past. As I said earlier, she had been convicted of several assaults on Samantha.

As Shayla had been the

aggressor in the past, one can infer, in the absence of any other evidence, that Shayla had no reason, based on the couple’s history, to feel a need to defend herself from Samantha.

[28] I also note that the pathologist described the wound that caused Samantha’s death as a penetrating wound, not a slashing wound. That is to say, it would appear to be more of an aggressive move than a defensive one.

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the other two women and to move to the dresser where she retrieved a knife. The

12

[29] After stabbing Samantha, Shayla turned on her two sisters with the knife. It was not reasonable for her to do so. Amber and Jasmine were no longer assaulting her. By

[30] I am satisfied beyond a reasonable doubt that the force used by Shayla was disproportionate and unreasonable in the circumstances.

Under the Old Provisions

[31] If I am wrong and the new provisions of the Code are not retrospective, the Crown and defence agree that the provisions to consider are the former s. 34(1) and the former s. 34(2).

I come to the same conclusion under these provisions as I do

under the new s. 34 because, under both the old and the new provisions, the determinative issue is the reasonableness of the force used. For the former s. 34(1) to provide a defence, the force used by the accused must be no more than necessary to enable her to defend herself (R. v. Hebert , [1996] 2 S.C.R. 272). And the former s. 34(2) provides a defence only if the accused believed, on reasonable grounds, that it was not possible to preserve herself from harm except by killing her adversary. Under both provisions, there is a subjective and objective component in assessing the accused’s actions (see R. v. Richter, 2014 BCCA 244, 357 B.C.A.C. 305, at par. 30; R.

v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3).

[32] In Cinuous, McLachlin C.J. and Bastarache J. explained (at par. 94): The accused's perception of the situation is the "subjective" part of the test. However, the accused's belief must also be reasonable on the basis of the situation he perceives. This is the objective part of the test.

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that time, the fight was over.

13

[33] Again, because Shayla did not testify, there is no direct evidence as to her subjective belief.

So I must attempt to infer her state of mind from the objective

[34] I understand that the question whether the force was necessary to repel the assault is not determined by looking at the consequences of the accused’s actions but rather by whether the degree of force used could reasonably be perceived to be necessary (R. v. Kong, 2005 ABCA 255, 371 A.R. 90, dissenting decision of Wittman J.A. upheld by the S.C.C., 2006 SCC 40, [2006] 2 S.C.R. 347).

I also

understand that an accused person is not expected to weigh to a nicety the measure of force used.

[35] The difficulty in this case is that there is no evidence from which I can infer that Shayla believed it was necessary to retrieve a knife to defend herself once she had already escaped from the grasp of the others and could simply have left the room. Nor do I believe that a reasonable person in her position would have felt it was necessary to use a knife to defend herself once the fight was effectively over.

I agree with the

Crown’s submission that, at this point, Shayla was acting out of anger and not in selfdefence.

The words of Paciocco J. in describing the actions of the accused in R. v.

Parker, 2013 ONCJ 195, are apt here: 41 Indeed, I am satisfied beyond a reasonable doubt that by the end, he was acting out of anger, not out of self-defence. This is evident not only from the nature of the assault he engaged in. It is also evident from Mr. Parker's actions in shaking Ms. Bastien off so he could continue the attack on Mr. Lanthier, and in his act of punching the mailbox before he stomped out of view. Mr. Parker was a furious young man, overwrought with Mr. Lanthier for tripping him as he did. I am convinced that Mr. Parker continued his attack on Mr. Lanthier long after it was needed in order to punish Mr. Lanthier for his actions. I appreciate that it may be hard for the law to expect those who have been attacked to maintain a rational

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circumstances.

14

[36] I conclude that the Crown has disproved self-defence. I am satisfied beyond a reasonable doubt that Shayla caused Samantha’s death by an unlawful act – assaulting her with a weapon.

The only remaining issue is whether, in doing so, she had the

necessary mens rea for murder.

[37] I am also satisfied beyond a reasonable doubt that Shayla assaulted Jasmine with the knife. According to both Amber and Jasmine, after Samantha fell, Shayla came after them with the knife. There was a struggle over the knife during which Jasmine was cut by the knife. It is not clear exactly how Jasmine was cut by the knife. She did not realize she had been cut until Amber later pointed out the injuries to her. The defence did not argue accident or suggest that Shayla’s actions with the knife were not deliberate.

An assault is committed when one applies force intentionally to another

person, either directly or indirectly, or threatens to apply force to another.

Even if

Shayla struck Jasmine by swinging the knife around rather than by directing it at her, it would still amount to an assault with a weapon. And, as I said, in committing that assault I find that Shayla was not acting in self-defence.

Has the Crown established that the accused had the mens rea necessary for murder?

[38] The Crown does not suggest that Shayla intended to kill Samantha. Rather, they rely on s. 229(a)(ii) of the Code – that Shayla intended to cause bodily harm to Samantha that she knew would likely cause death.

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reaction to the assault on them, but the law privileges reasonable self preservation, not an emotional loss of control. Mr. Parker reacted with an emotional loss of control and went much farther than necessary. This case is not about niceties. It is about excessive force. In the end, the force he used was not for the purpose of self-defence. He is not entitled to self-defence under subsection 34(1).

15

[39] In this case, as in most, there is no direct evidence of intent. Crown counsel relies on the presumption that a sane and sober person can be presumed to intend the

presumption may not apply if there is evidence of intoxication. There is evidence here that Shayla had been consuming alcohol and smoking marihuana throughout the night. But Crown counsel argues the evidence of intoxication is not sufficient to negate intent.

[40] In R. v. Daley, 2007 SCC 53, [2007] 3 S.C.R. 523, Bastarache J. described three legally relevant degrees of intoxication. Mild intoxication, which reduces inhibitions, is not a factor in determining whether the accused had the necessary mens rea. However,

advanced

intoxication

may

affect the accused’s ability

to

foresee

consequences and, therefore, may negate the specific intent required for murder where the Crown is relying on s. 229(a)(ii) of the Code.

The third level of intoxication -

extreme intoxication which, like automatism, provides a complete defence to the charge – is not available as a defence to murder (Criminal Code, s. 33.1). It is the second level of intoxication which the defence argues was present here.

[41] What then is the evidence of intoxication in this case? There is no evidence from Shayla as to how drunk she was. Nor were Jasmine and Amber asked directly about her level of sobriety.

But Amber did testify that they all drank a lot and were fairly

intoxicated.

[42] When Cst. Masi asked Shayla what she had had to drink that night, she replied that she had a six pack and a gram of marihuana.

Cst. Masi testified that Shayla

smelled of alcohol and burnt marihuana and Amber and Jasmine confirmed that they

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natural and probable consequences of her actions, although he concedes that this

16 had purchased a six pack of beer and that Shayla was the only one drinking it. According to Amber, Shayla was also drinking coolers. Police found four empty two litre

[43] Cst. Gallant who initially detained Shayla said that she showed no signs of intoxication. He also said that she did not smell of alcohol. I place no weight on this evidence because Cst. Gallant had only a brief interaction with Shayla and his evidence is not consistent with that of Cst. Masi who spent a significant period of time with her. Cst. Scott, who was also at the scene, could not recall Shayla’s level of intoxication but the notes that she made at the time indicate that Shayla was intoxicated.

[44] The witness whose evidence is most significant on the issue of intoxication is Cst. Masi because she spent close to half an hour with Shayla immediately after the offence. According to Cst. Masi, although Shayla smelled of alcohol and marihuana and had glassy eyes, she was able to answer questions appropriately. She was not slurring her words and she was not unsteady on her feet. Cst. Masi said that, on a scale of intoxication from one to ten, Shayla was at level three to four.

[45] I have concerns about the reliability of Cst. Masi’s observations. I say that for the following reasons.

First, when she completed the prisoner log sheet, in the box

labelled “behaviour”, Cst. Masi recorded “intox.” (for intoxication). Although Cst. Masi said that this simply meant that Shayla was not sober, I found the choice of words odd for someone whom she otherwise seemed to go to lengths to describe as being totally in control.

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bottles of Rockaberry and five empty beer cans in the suite.

17

[46] Second, and more significant, is Cst. Masi’s evidence about Shayla’s state of sobriety later in the night. When she arrived at the police station, Shayla was placed in

male officer called Cst. Masi over to tell her Shayla had urinated in the disposable pants that she had been given to wear. The door to the interview room had been left open and Shayla could have asked to use the washroom. Cst. Masi said that she did not know whether the accident was a result of Shayla being intoxicated. But she did say that when she went to assist Shayla in changing her pants, she found her to be more intoxicated than she was earlier in the night. She said that, on a scale of one to ten, at that point in time, Shayla was a six or seven. So Cst. Masi’s evidence is that two hours after the incident, Shayla was twice as drunk as she was at the time of the incident. Crown counsel says that, without expert evidence, I cannot use this evidence to draw any inferences as to how intoxicated Shayla was at the time of the offence. However, even if I cannot take judicial notice of the fact that people tend to sober up as time es, Cst. Masi’s evidence that Shayla was more drunk two hours after the offence leaves me puzzled.

[47] While I have doubts about the reliability of the officers’ evidence insofar as it suggests that Shayla was showing little sign of impairment shortly after the incident, I agree with the Crown that the evidence of intoxication in itself is not enough to raise a doubt as to Shayla’s state of mind. However, as explained in Daley (at par. 40): An accused who was not so intoxicated as to lack capacity to form the intent may nevertheless not have exercised that capacity and formed the specific intent. The ultimate inquiry is always whether the accused possessed actual intent. [emphasis added]

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an interview room where she was watched by a male officer. At about 4:00 a.m., the

18

[48] The evidence of intoxication must be considered along with all of the other evidence in determining whether the Crown has established that Shayla acted with the

number of factors here which lead me to conclude that it has not.

The first is the

specific nature of the assault – a single stab wound that, according to the pathologist, would require little force to inflict.

[49] The Crown relies on R. v. Cassan, 2010 MBQB 241, 260 Man. R. (2d) 37, where the accused was convicted of murder for stabbing an acquaintance after a night of drinking. Although the judge found that the accused was intoxicated, he had no doubt that the accused was able to foresee the consequences of his actions. But the accused in that case had stabbed the deceased 22 times.

In upholding the decision, the

Manitoba Court of Appeal found that the number of stab wounds in itself was strong evidence that the accused intended to kill the deceased or to cause bodily harm with foresight of the consequences (2012 MBCA 46, 280 Man. R. (2d) 182).

[50] Similarly, in R. v. Owens, 2014 MBQB 95, 305 Man. R. (2d) 187, upheld on appeal, 2015 MBCA 96, also relied upon by the Crown, the nature of the assault was a significant factor in the trial judge’s conclusion that the accused had the necessary mental state for murder even though he was intoxicated at the time of the offence. Although the deceased died of a single stab wound, that wound was accompanied by at least 30 to 40 blows to his body over a prolonged period of time.

[51] By comparison, in R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, the accused was charged with murder but convicted of manslaughter in the shooting death of his

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state of mind necessary to make the unlawful killing of Samantha murder. There are a

19 wife.

While the trial judge found that the evidence of intoxication was not itself

sufficient to a defence, when considered along with the other evidence it raised

the issue was the sufficiency of the judge’s reasons. The Court held that the judge’s conclusion was ed by the evidence. Binnie J. commented (at par. 26): The shooting, the trial judge found, was only "in part due to the effects of alcohol". The conduct of the appellant on the night in question, both before and after the shooting, undermines any intoxication defence. ... Instead, the effect of alcohol was a destabilizing factor that turned a "machismo" attempt to "intimidate" and "impress" Ms. Reynolds into a tragedy that the trial judge was unable to find was intended to "kill or ... to cause bodily harm likely to cause death". In my view, on a fair reading of the trial judge's reasons as a whole, his reasonable doubt as to intent was raised by what he considered to be the real possibility that the shooting was the result of an accident in which the appellant's alcohol consumption played a significant role. I agree with Sharpe J.A., dissenting in the result in Kendall, when he stated that: A reasonable doubt need not rest upon the same sort of foundation of factual findings that is required to a conviction. A reasonable doubt arises where an inadequate foundation has been laid. [para. 98] [emphasis added]

[52] As with the evidence of intoxication, the evidence of self-defence must also be considered in assessing the accused’s mental state even, if taken alone, it does not give rise to a defence. As stated by Watt J.A. in R. v. Cudjoe , 2009 ONCA 543, 251 O.A.C. 163: 104 To ensure that jurors do not take a compartmentalized approach to the evidence, considering it only in connection with a discrete defence, justification or excuse, we require trial judges to remind jurors that they should consider the cumulative effect of all relevant evidence in determining the adequacy of the prosecution's proof of the mental or fault element in murder, even if the same evidence does not raise a reasonable doubt about guilt when offered in of a specific defence. Sometimes, the whole exceeds the sum of its parts. [emphasis added, references omitted]

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a doubt as to the accused’s mental state. When the case went to the Supreme Court,

20

[53] Shayla was clearly acting in response to an assault on her by Amber and Jasmine. This was conceded by the Crown. Her response, while not reasonable, by all

doorway, was not sure whom she had stabbed.

[54] The circumstances in this case – the fact that Shayla had been drinking and smoking marihuana, that she was acting is response to being assaulted by Samantha’s two sisters, that she acted quickly, in the heat of the moment, with a single stab wound that would have been accomplished with minimal force – raises a reasoanble doubt about whether she acted with foresight as to the consequences of her actions.

[55] While I am satisfied beyond a reasonable doubt that Shayla caused the death of Samantha by an unlawful act, I am not satisfied that the Crown has established that Shayla had the necessary mental state for second degree murder. I therefore find her guilty of manslaughter.

J.

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s happened very quickly; so quickly that Mason, who was watching from the