Ontario Criminal


Defences

Duress

Accused did not have safe avenue of escape from threat posed by boyfriend

Accused’s mother removed bag that contained semi-automatic firearm and some bullets from trunk of accused’s car. Firearm and ammunition belonged to accused’s boyfriend and boyfriend threatened to kill accused, accused’s daughter and other family members if firearm was not returned to him and if it was delivered to police. Bag ended up in mother’s car and accused grabbed bag and fled in her own car to home of acquaintance and she asked him to hold gun and ammunition for her. Accused had been instructed by boyfriend to deliver gun and ammunition to acquaintance. Police recovered firearm and bullets. Accused was charged with illegal possession of firearm and ammunition and other related charges. Accused claimed that she lacked requisite mens rea because her boyfriend physically abused her and threatened to kill her and other family members. Accused acquitted. Crown did not dispute that accused was physically abused by boyfriend or she may have feared him. However, it claimed that she chose to remain with him to protect him. Crown also claimed that she had multiple avenues to escape his clutches. There was explicit threat of present or future death or bodily harm to accused or to other persons. Accused reasonably believed that boyfriend would carry out threat. Accused did not have safe avenue of escape. There was close temporal connection between threat and harm threatened. There was no evidence that accused was involved in conspiracy with boyfriend to commit illegal act and she knew that threats and coercion would be logical results of such activity. Defence of duress was therefore made out.

R. v. Markoff (Dec. 14, 2015, Ont. S.C.J., André J., CR-14-174-00) 127 W.C.B. (2d) 502.

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