COURT OF QUEENS BENCH OF MANITOBA

B E T W E E N:
HER MAJESTY THE QUEEN,

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

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 Samanthas 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

Samanthas death.

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

2016 MBQB 1 (CanLII)

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 contact Samantha, she was living with Samantha in a two bedroom
suite, along with Samanthas sisters, Amber and Jasmine, and Ambers 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., Samanthas 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 Samanthas 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 Ambers 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 joined 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

2016 MBQB 1 (CanLII)

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. Shaylas 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] Masons 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 Shaylas 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

2016 MBQB 1 (CanLII)

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 persons 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 Samanthas 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,

2016 MBQB 1 (CanLII)

[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:

2016 MBQB 1 (CanLII)

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 Citizens 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 Parliaments intent was no t to
change the substance of the law but to simplify the analytical framework for assessing
the defence. As Parliaments intent was to make the law more user-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 accuseds 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 accuseds 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 persons 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 56 tall. While I did not hear any specific evidence of Shaylas 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 5 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 persons 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 couples history, to feel a need to defend herself from
Samantha.

[28] I also note that the pathologist described the wound that caused Samanthas
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
accuseds 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.

2016 MBQB 1 (CanLII)

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 accuseds 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

Crowns 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 Samanthas 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 Shaylas 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).

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[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 accuseds 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 Shaylas 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. Masis 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. Masis evidence about Shaylas 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. Masis 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
passes, Cst. Masis 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 Shaylas 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 judges 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

2016 MBQB 1 (CanLII)

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

the issue was the sufficiency of the judges reasons. The Court held that the judges
conclusion was supported 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 support 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 accuseds 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 support of
a specific defence. Sometimes, the whole exceeds the sum of its parts.
[emphasis added, references omitted]

2016 MBQB 1 (CanLII)

a doubt as to the accuseds 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 Samanthas
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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accounts happened very quickly; so quickly that Mason, who was watching from the