ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-174-00
DATE: 20151214

B E T W E E N:

HER MAJESTY THE QUEEN

J. Prenger, for the Crown

• and -

KRISTIN MARKOFF

L. Shemesh and V. Sayed, for the Defence

HEARD: October 21, 22, 23, 26, 27; November 10, 2015
DECIDED: December 14, 2015

REASONS FOR JUDGMENT

André J.

[1] On December 3, 2012, Ms. Kristin Markoff (“Ms. Markoff”), snatched a plastic bag containing a semi-automatic firearm and some bullets from her mother’s car, and fled in her own car. She drove to the home of an acquaintance and asked him to hold the gun for her as a favour. The Peel Regional Police subsequently recovered the firearm and bullets and charged Ms. Markoff with illegal possession of a firearm and ammunition and other related charges. During the trial, Ms. Markoff maintained that she lacked the requisite mens rea for the offences because of physical abuse by her boyfriend. The Crown insists that Ms. Markoff exercised a choice to have possession of the gun and to remain in an abusive relationship. To that extent, she was in legal possession of the gun, irrespective of her sympathetic circumstances.

SUMMARY OF THE EVIDENCE

[2] The trial commenced on October 21, 2015, and lasted a number of days. Much of the evidence called by the Crown was not disputed. The Crown’s case is largely based on the testimony of Susan Murray, who is Ms. Markoff’s mother, Mr. David Markoff (“Mr. Markoff”), who is her brother and Mr. Christian Richards (“Mr. Richards”), the male to whom Ms. Markoff gave the firearm and ammunition.

[3] Cst. Gage Dinardo received information regarding a complaint about a fight between Susan Murray and her daughter, Ms. Markoff. He received further information regarding a firearm of which Ms. Markoff was alleged to have been in possession. He prepared a search warrant to search the residence of a male called Christian Richards.

[4] On October 5, 2012, police officers arrested Mr. Richards. Upon his arrest, Mr. Richards indicated that he had received the firearm from Ms. Markoff and had agreed to hold it for her as a favour. He then provided the police with the keys of his residence and told them that the gun was under some clothing in a laundry bag. The police attended Mr. Richards’ residence and located the gun in the location described by Mr. Richards. The gun was located in a grocery bag along with seven rounds of ammunition and a magazine in the bag. One week later, Mr. Richards delivered another bullet to the police which he claimed to have found on the floor of his residence.

[5] Mr. Richards gave a statement to the police on October 5, 2012, and a second one on June 14, 2013. In the second statement, Mr. Richards disclosed to the police that Ms. Markoff had given him the gun. The officer conceded in cross-examination that Mr. Richards gave the statement following an agreement with the Crown and that he did so in exchange for a deal. He pleaded guilty to some charges and received a non-custodial sentence.

[6] The officer testified that Ms. Markoff’s boyfriend was a male called Amari Buchanan (“Mr. Buchanan) who was known to the police and had a number of convictions including firearms offences. The officer also reviewed occurrence reports in which Mr. Buchanan was alleged to have dragged Ms. Markoff by the hair, struck her and choke her. The officer also admitted that Mr. Markoff, the elder brother of Ms. Markoff, advised him that Ms. Markoff had to return the gun to Mr. Buchanan or he would kill them all.

[7] The officer further testified that Mr. Buchanan had never been convicted of assaulting Ms. Markoff; however, he had been convicted of assaulting another female.

DAVID MARKOFF

[8] David Markoff testified about the living arrangements in his mother’s home. Ms. Markoff had moved out of the residence a few months prior to October 3, 2012.

[9] Mr. Markoff noted that he knew both Mr. Buchanan and Mr. Richards. He first met Mr. Buchanan between 2001 and 2002. Mr. Markoff sold drugs at the time and has a criminal record.

[10] Mr. Markoff testified that Ms. Markoff was in a terrible state before October 2012. She lost a lot of weight and was in and out of the hospital. He believed that his sister’s condition had something to do with an opiate addiction.

[11] In early October, 2012, Ms. Markoff advised her mother that she was in the hospital because of problems with her intestines. Ms. Markoff was vomiting and very weak. On October 2, 2012, Ms. Markoff seemed to have recovered. Ms. Markoff was involved with Mr. Buchanan in the months prior to October 2012. On one occasion, he observed bruising around Ms. Markoff’s neck. On another occasion between August and September, 2012, Mr. Buchanan had an altercation with Mr. Markoff’s mother.

[12] On October 2, 2012, Ms. Markoff returned home with her car which had damage on its side. Ms. Markoff got into a verbal argument with her mother who believed that Mr. Buchanan had damaged the car. Ms. Markoff left the residence but returned later. The argument between Ms. Markoff and her mother resumed. The latter asked her daughter to leave her residence.

[13] While Ms. Markoff was packing her belongings, her mother walked past Mr. Markoff, who was on the front porch of the residence, went to Ms. Markoff’s car opened a door and popped the trunk open. Ms. Murray then went to the trunk and looked inside. Ms. Murray then stated: “Oh my God. I can’t believe that”, Mr. Markoff testified.

[14] Mr. Markoff went to the car. His mother exclaimed: “Oh my God. I can’t believe it’s here; it’s a gun.”

[15] Ms. Murray lifted a plastic grocery bag from the car. Mr. Markoff saw the outline of a gun in the bag. His mother told him that she could not give the bag to Ms. Markoff. Ms. Murray told him to take the bag and hide it.

[16] Mr. Markoff took the bag with the gun. He placed it in a pizza box and then placed the box in the recycling bin at the side of the house.

[17] Before doing so, Mr. Markoff looked inside the bag. He saw a gun and 3 to 5 bullets which had fallen out of a tissue within the bag.

[18] Mr. Markoff tried to convince his mother to call the police and turn the gun over to them. Mr. Markoff later went to the park with his young daughter. Before doing so, he heard Ms. Markoff ask her mother, “Where is it?” Ms. Markoff was very hysterical when she said so.

[19] While at the park Mr. Markoff received text messages from his mother about the whereabouts of the gun. He did not tell her where he had hid it. He could hear his sister in the background saying: “He doesn’t understand; he’ll kill us all!”

[20] Ms. Markoff also said that if her brother did not return the gun, Mr. Buchanan was going to kill Ariana, Mr. Markoff’s daughter. Ms. Markoff then asked her mother: “Do you want that to happen to Ariana?” Ms. Markoff sounded genuinely scared while speaking to her mother. “She had a big sense of urgency in her voice,” Mr. Markoff testified.

[21] Mr. Markoff told his mother where he had hidden the gun. He told her it was stupid for her to return the gun to Mr. Buchanan.

[22] He returned home. He checked the pizza box for the gun. It was missing. His mother was upstairs. She came downstairs soon after and complained that Ms. Markoff had stolen her watch.

[23] Ms. Markoff returned home and had another heated argument with her mother. Ms. Markoff grabbed some of her possessions and left but returned five minutes later.

[24] Ms. Murray called the police after discovering that her watch was missing. Ms. Murray was bleeding on her arm and complained that Ms. Markoff had bitten her. Mr. Markoff later gave a statement to the police.

[25] Under cross-examination, Mr. Markoff stated that he knew that Mr. Buchanan had been violent with women and had gun-butted one woman.

[26] He noted that his sister looked like a crack head in October 2012. She was sick in the house and had to go to the hospital. She returned home but left again to be with Mr. Buchanan. Mr. Markoff testified that he had knowledge that Mr. Buchanan had guns and believed he could use them.

[27] He conceded that in 2003, he had an altercation with Mr. Buchanan and that he had had altercations with other boyfriends of Ms. Markoff.

[28] Asked about Ms. Markoff’s demeanour on October 3, 2012, Mr. Markoff replied that he had never heard her scream as she did on that day, after she discovered that her mother had taken the gun. He stated that her tone was desperate and urgent.

[29] Mr. Markoff testified that Ms. Markoff’s car was not at their residence when Ms. Markoff was to the hospital on two occasions for a total of five days prior to October 3, 2012.

[30] On one occasion, Mr. Buchanan had threatened, in the presence of Mr. Markoff, to knock out Ms. Murray.

[31] In re-examination, Mr. Markoff testified that in 2006 and 2007 he heard gunshots in the background while speaking with Mr. Buchanan. He stated that Ms. Markoff’s car returned to the family home when Ms. Markoff returned home on October 3, 2012.

SUSAN MURRAY

[32] Ms. Murray testified that in October 2012, she believed that her daughter was suffering from diverticulitis, which she had been diagnosed with earlier in the year. From December 2011, Ms. Markoff had had many bouts of vomiting, pain and profuse sweating which necessitated frequent hospitalization. Ms. Markoff attributed her constant illness to diverticulitis. However, by December 2011, Ms. Murray became suspicious that her daughter was using illegal drugs.

[33] During the 2011 Christmas season, Ms. Markoff arrived home with Mr. Buchanan driving her car. Ms. Markoff was very sick. Ms. Murray told Mr. Buchanan to stay away from her daughter. Mr. Buchanan verbally abused Ms. Murray.

[34] In September 2012, Ms. Markoff told her mother that she had withdrawal problems from her use of oxycontin. Ms. Murray discovered that 25 of her oxycontin tablets which she had as a result of a doctor’s prescription, had been taken. Ms. Markoff denied being responsible for the missing pills.

[35] Ms. Murray testified that Mr. Buchanan had some “sick control” over her daughter.

[36] In May 2012, Ms. Murray picked up the accused at an apartment complex. The latter complained that Mr. Buchanan had beaten her up. Ms. Markoff had bruises on the side of her head and Mr. Buchanan appeared. He was, Ms. Murray testified, “[s]toned out of his mind”.

[37] Ms. Markoff wanted the police to retrieve her possessions in Mr. Buchanan’s apartment.

[38] Ms. Murray testified that she was afraid of what Mr. Buchanan would do to her daughter. She also stated that Ms. Markoff used to tell her that Mr. Buchanan was going to kill Ms. Markoff.

[39] Ms. Murray testified that in August or September 2012, she went to the Brampton court and obtained a copy of Mr. Buchanan’s recognizance. She determined that he was under house arrest at the time. Because she had seen him in her daughter’s car, Ms. Murray believed that he was not abiding by his recognizance.

[40] Ms. Murray testified that she had a sister and two brothers who were police officers. Asked why she failed to seek help from her relatives for her daughter, Ms. Murray replied that she was embarrassed over her daughter’s drug use.

[41] Ms. Murray picked up her daughter at the hospital on October 2, 2012, at about 7:00 a.m. They went to Ms. Murray’s home. Ms. Markoff departed at approximately 11:00 a.m. She returned approximately one hour later. She was then on the phone, yelling and screaming. She departed again soon after this call. Before she did, Ms. Murray reminded her that she had promised to stop seeing Mr. Buchanan.

[42] Ms. Markoff left the house around 1:00 p.m. and returned at 6:00 p.m. She told Ms. Murray that someone had hit her car. The car had been in the driveway earlier that morning but was not there between 12:00 p.m. and 1:00 p.m. Ms. Murray accused Ms. Markoff of having lent the car to Mr. Buchanan who was responsible for the damage. Ms. Markoff denied that allegation. Ms. Murray told her daughter that she should leave Mr. Buchanan.

[43] Ms. Markoff became very emotional. She went into her room and called someone on her phone.

[44] Ms. Markoff then came down, proceeded to her car and opened the trunk.

[45] “It appeared that she put something in the trunk,” Ms. Murray testified. Ms. Markoff was looking into the trunk. Ms. Markoff then shut the trunk. Ms. Murray testified that at this time, Ms. Markoff was very pale and seemingly upset again. Ms. Markoff then returned to the house and went back to her bedroom.

[46] Ms. Murray testified that it seemed odd that Ms. Markoff appeared more upset on her way back to the house than when she went to her car.

[47] Ms. Murray then went outside to look into the trunk because she concluded that something within it had upset her daughter.

[48] Ms. Murray opened the trunk. She saw a backpack which she recognized belonged to Mr. Buchanan. She also saw a blanket for her daughter’s dog, a hair brush and a plastic bag. The plastic bag was heavy. The object within it felt like a gun.

[49] Ms. Murray started ventilating and crying. She asked her son to hide the gun. She didn’t tell him where to hide it. He took it and went to the backyard.

[50] When Ms. Murray went back into the house Ms. Markoff said to her: “What were you doing in the front of my car?”

[51] Ms. Murray replied: “I was looking”.

[52] Ms. Markoff asked: “What were you looking for?”

[53] Ms. Murray replied: “You know what I was looking for.”

[54] Ms. Markoff asked: “What are you talking about?”

[55] Ms. Murray replied: “You know what I’m talking about.”

[56] Ms. Markoff then grabbed and hugged her mother.

[57] Ms. Markoff then stated: “You have to give it time. I have to take it with me. He’s waiting for me to bring it to him.”

[58] Ms. Markoff added: “If I don’t bring it he’ll kill me, kill you all, including Ariana or he’ll send someone else.”

[59] Ms. Murray kept telling the accused that they needed to call the police.

[60] Ms. Markoff replied: “He’ll have us killed, he’ll kill us.”

[61] She later added: “Mom, he is expecting us; I have to bring it.”

[62] Ms. Murray told her daughter that she would bring the gun to Mr. Buchanan. Ms. Markoff replied, “I’ll come with you.”

[63] Ms. Murray started to phone her son. David did not want the gun to be returned to Mr. Buchanan. Ms. Murray looked for the gun at the back of the house but could not find it. David finally relented and told her where the gun was hidden after Ms. Murray told him that Mr. Buchanan had threatened to kill his daughter if the gun was not returned.

[64] Ms. Murray retrieved the gun and placed it in the trunk of her car. Ms. Murray and Ms. Markoff got into the car. Ms. Markoff suddenly jumped out, opened the trunk from the back seat, took the bag from the trunk and sped off in her own car.

[65] Ms. Murray went back into the house. Ms. Markoff returned half an hour later and went upstairs. She later accused Ms. Murray of stealing her money. Ms. Markoff later stated that she had something worth more than the $375 her mother allegedly took from her account.

[66] Both women then got into a grabbing match and Ms. Markoff drove away after Ms. Murray let her go. Ms. Murray then called 911 and reported that her daughter had stolen her watch. She made no mention of the gun to the police. She later found the jewellery which she thought Ms. Markoff had stolen.

[67] Ms. Murray testified that she was not aware that the bag with the gun was in her house that day.

CHRISTIAN RICHARDS

[68] Christian Richards testified on February 19, 2014, he pleaded to two gun related charges arising out of his possession of a firearm given to him by Ms. Markoff. Mr. Richards received a conditional sentence of 15 months and probation.

[69] He testified that he received a phone call from Ms. Markoff on October 3, 2012 at about 3:00 p.m. She came to see him at 4:00 p.m. She came half an hour later, followed him to his room and asked him a favour. She asked him if he could hold this for her. He asked what. She replied, “a gun.” He wanted to help her out. He took the brown plastic grocery bag from her and she promised to return for it within 2-3 hours.

[70] Ms. Markoff left. Mr. Richards opened the bag and saw a gun wrapped in a towel. He saw some bullets in tissue paper. He touched the handle of the gun and later wiped the handle with a paper towel. He then placed the bag under some clothes in a laundry basket.

[71] Mr. Richards received a text message from Ms. Markoff at 11:00 p.m. She said she would arrive to pick up the gun a little bit later.

[72] Mr. Richards never heard from Ms. Markoff. The police arrested him on October 5, 2012. On October 31, the date of his release, he found a bullet on the ground. On July 4, 2014, he gave the Peel Police a statement explaining how he came to be in possession of the gun.

[73] Mr. Richards testified that he never heard of the name Amari Buchanan. He testified that he used to sell marijuana and sold it to Ms. Markoff on one occasion in 2012.

[74] Under cross-examination, Mr. Richards testified that he did not like Ms. Markoff and believed that she had “set him up.”

[75] He admitted that he knew David Markoff but denied knowing Mr. Buchanan.

[76] He testified that he did not know that the gun belonged to Mr. Buchanan. He denied asking Mr. Buchanan to buy a gun for him for $1,500.

[77] The defence put to him that Ms. Markoff was arrested before 11:00 p.m. on October 5, 2012, and hence could not have texted him at that time. He insisted that he had received a text message from her.

[78] He denied asking to buy the gun which Ms. Markoff left with him for $1,500. He denied that Mr. Buchanan had threatened him for the gun. He also denied knowing Mr. Buchanan’s nick name, “Chucky.”

[79] In re-examination, the Crown showed Mr. Richards a picture of Mr. Buchanan. He reiterated he had never seen Mr. Buchanan before. He reiterated that he was positive that he received a text message from Ms. Markoff because her name was programmed in his phone. He only had one number for Ms. Markoff.

MS. MARKOFF

[80] The 30 year old Ms. Markoff testified in her own defence. She met Mr. Buchanan when she was fifteen years old. They started dating sometime after she got pregnant at 16 and had an abortion. The two broke up when she was 17 but reconciled after a few months. They were on and off from the time she was 17 years old to when she was 26 years old.

[81] The two got back together “more steadily” in 2011. They moved into an apartment in June 2011. Their relationship started falling apart in September 2011. He slapped her in the chest after a dispute over Mr. Buchanan’s daughter. Mr. Buchanan was smoking marijuana and using oxycontin at the time. In September 2011, he threw her against a wall. He chased her down the hall in her building. He kicked her in the ribs and grabbed her by the hair and promised to drag her if she did not walk to her apartment. He offered her a pill which she took. It made her feel dazy. He assaulted her again the following day. She left the apartment and moved in with her mother.

[82] Ms. Markoff continued to use oxycontin regularly. She did not tell her mother about her drug use.

[83] In July 2011 or 2012, Mr. Buchanan came to her mother’s house. He threw her into a wall and slapped her. The police subsequently charged him with five counts of assault. Mr. Buchanan threatened her that if she ever called the police on him, he would go after her mom. The charges were ultimately withdrawn after Ms. Markoff failed to attend court to testify. She did so because he had threatened to kill her family. In another incident, Mr. Buchanan tied her to a chair in a hotel room and threatened to slice her into pieces. He threatened her on a daily basis, she testified.

[84] Because of her dependency on oxycontin, Ms. Markoff testified that she had lost weight. Her weight dropped from approximately 125 to 93 pounds at the time of her arrest.

[85] Asked about her relationship with Mr. Richards she testified that she and Mr. Buchanan bought weed from him. She once overheard him speak about guns.

[86] On October 2, 2012, she got out of the hospital and went to her mother’s home. Her car was not there. Mr. Buchanan came to pick her up. She spent the night at his home. She used drugs on that day. Mr. Buchanan went out with her car at around 1:00 p.m. and returned at around 9:00 p.m. The two went to court on October 3, 2012. Ms. Markoff returned home and got into an argument with her mother over the damage to the car. Her mother asked her to leave.

[87] Ms. Markoff went to the car and opened the trunk. She saw Mr. Buchanan’s backpack and a plastic bag. She opened it and saw a gun.

[88] “I couldn’t believe it”, she testified.

[89] She saw Ms. Murray looking at her. She returned to her room and called Mr. Buchanan and asked him how could he do that to her. She then noticed her mother and brother at the back of the car with the trunk open.

[90] She hung up the phone. Her mother told her: “you know what I took”. She asked her mother what she was going to do.

[91] Her mother replied: “I don’t know”.

[92] Ms. Markoff then called Mr. Buchanan and told him that her mother had gone into the trunk of her car.

[93] He stated: “no fucking cops, if her mother call cops, I’ll kill everybody.”

[94] Ms. Markoff hung up the phone. She told her mother about the threat and that she could not come to the police with her mother. Ms. Markoff feared that Mr. Buchanan would kill her mother if Ms. Murray took the gun to the police.

[95] Ms. Murray told her to wait in Ms. Murray’s car and they would go together to take the gun to Mr. Buchanan. When Ms. Murray started the car, Ms. Markoff jumped into the back, pulled down the seat, and took the bag and drove off in her own car.

[96] She called Mr. Buchanan and he told her to give the gun to Mr. Richards. He also told her: “you had better not fuck around or I’ll kill you.”

[97] She drove to Mr. Richards’ house. He let her in and she handed him the bag and left. On the way back, Mr. Buchanan kept threatening to kill her mom if Ms. Murray called the police. She returned to her mother’s home, packed some of her stuff and took it to her car.

[98] She and her mother later argued over money. They then got into a physical altercation where Ms. Markoff ended up biting her mother. Her mother subsequently called the police.

[99] Ms. Markoff was arrested for assault and theft after she went to the police. She gave a statement but denied any knowledge about a gun.

[100] “I was scared, I was high; I was on camera”, Ms. Markoff testified. She was worried that if Mr. Buchanan had found out that she had told the police about the gun, he would kill her family and niece. On October 5, 2012, she told the police, off-camera, where the gun was located. She declined to give a video statement concerning the gun because she was afraid of Mr. Buchanan.

[101] She did not tell her relatives in law-enforcement about her situation because she was ashamed of herself and worried about her relatives’ safety.

[102] Ms. Markoff testified that she tried to commit suicide in April, 2014 and was hospitalized for six days.

[103] Ms. Markoff testified that she did not know that the gun was in the trunk of her car. Furthermore, that she had no intention of keeping it. She wanted to get rid of it but was too scared to drive it to the police station.

[104] Under cross-examination, Ms. Markoff testified that Mr. Buchanan repeatedly forced himself into her life. She noted that she changed her telephone number on ten occasions after she left him in 2014.

[105] The Crown put to her that she repeatedly ignored her mother’s advice to stay away from Mr. Buchanan. She replied that she felt that she had no choice. “I do what he makes me do,” Ms. Markoff testified.

[106] She noted that on one occasion, he hid in a bush until she appeared and then forced himself into her car.

[107] Ms. Markoff testified further that her dependency on Mr. Buchanan was fueled by her addiction to oxycontin which Mr. Buchanan provided to her. She stated that she would not have been able to stay away from Mr. Buchanan even if she got her drugs from someone else.

[108] Asked about any help she could have sought, Ms. Markoff replied that she was too embarrassed to tell anyone. Furthermore, when she tried to leave Mr. Buchanan on one occasion, he forced her into the house and beat her.

[109] Ms. Markoff denied that in 2012, she was in love with Mr. Buchanan and that she was merely trying to protect him by not taking the gun to the police. She denied this and maintained that her focus was on her family members and their safety.

[110] Asked about her video statement to the police, in which she denied all knowledge of the firearm, Ms. Markoff stated that she was high on drugs at the time and that her adrenaline was pumping. She said that in giving her statement to the police she was focused on not saying anything which could incriminate Mr. Buchanan.

[111] Ms. Markoff conceded that she did not change her telephone number between May 2011 and October 2012.

[112] Questioned about the help she received from her mother, Ms. Markoff conceded that Ms. Murray had tried to get her counselling and also that her mother’s brother had offered her help. She noted however, that in September and October 2012, she did not feel that she had the strength to leave Mr. Buchanan.

[113] She also conceded that her employer, who was a recovering addict, and her relatives, who had been police officers, could have helped and yet she did not seek their assistance.

[114] Ms. Markoff testified that she reported Mr. Buchanan to the police in June 2012 and that following the report, he beat her up. As a result, she never attended court and the charges were subsequently withdrawn.

[115] Ms. Markoff stated that she went to the trunk to see if there was space for her office equipment. She denied that she had gone to the trunk to get the gun out of the house into her car. She agreed that she did not want her mother to see what was in the trunk of her car.

[116] Ms. Markoff conceded that she had called Mr. Buchanan to tell him that her mom had gone into the trunk of her car. The Crown put to her that had she been concerned about her mother’s safety, she would not have relayed that information to Mr. Buchanan. “It was a poor choice to make. I was high. I wasn’t thinking clearly”, Ms. Markoff replied.

[117] Ms. Markoff reiterated that Mr. Buchanan told her to deliver the gun to Mr. Richards. She denied that she told Mr. Richards that she would return for the gun within two hours or that she texted him at 11:00 p.m.

[118] She also disagreed that she was of sound mind when she spoke to the police.

[119] The Crown put to Ms. Markoff that she was more concerned with maligning her family than family safety when she spoke to the police. She disagreed.

[120] The Crown pointed out to Ms. Markoff that she was aggressive and assertive during her video statement to the police. She disagreed. She testified that she was high on drugs at the time and that she was merely trying to protect herself and her family. “I did what I have to do to protect my mom”, Ms. Markoff testified.

[121] The Crown put to her that she repeatedly told the police that there was no gun in order to protect Mr. Buchanan. She denied this. “I was forced to make the choices that I made”, Ms. Markoff testified.

[122] In re-examination, Ms. Markoff confirmed that during her police statement she told the police that she had three places to live and that she had plenty of family members she could live with.

ADMITTED FACTS

[123] Mr. Buchanan’s criminal record was tendered as an exhibit on consent.

ANALYSIS

[124] The Crown submits that Ms. Markoff’s testimony is patently false and is incapable of raising a reasonable doubt about its case. The Crown further submits that based on all the evidence, the court should find that the Crown has proven Ms. Markoff’s guilt beyond a reasonable doubt. Specifically, the Crown makes the following arguments:

(1) Ms. Markoff chose to be in an unhealthy and abusive relationship with Mr. Buchanan at the time of the offence. Her words and demeanour when she gave a statement to the police confirm that she was dedicated to Mr. Buchanan and was angry with her family. Accordingly, Ms. Markoff was not acting under duress when she chose to possess and control Mr. Buchanan’s gun for him on October 3, 2012. Ms. Markoff had safe, albeit difficult, avenues of escape. Her state of mind was not overborne. Accordingly, she was not acting under duress when she chose to first, have Mr. Buchanan’s gun in her home second, to snatch it and third, deliver it to Mr. Richards for safe keeping.

(2) Ms. Markoff willingly spent the evening of October 2, 2012, with Mr. Buchanan at his mother’s home.

(3) Prior to October 3, 2012, Ms. Markoff knew about Mr. Buchanan’s gun possession and use. She knew about his criminal record which contained gun-related convictions. She therefore knew very well the type of person he was. Yet she chose to carry his gun on October 3, 2012.

(4) Ms. Markoff not only had control of the gun at her mother’s home, she later re-asserted control of the gun from her mother’s car. She then took the gun and ammunition and drove them to Mr. Richard’s home.

(5) Mr. Richards was a credible and trustworthy witness. His testimony confirms that Ms. Markoff had possession and control of the gun and ammunition. To that extent, she should be found guilty of possessing them.

[125] Ms. Markoff’s counsel makes the following submissions:

(1) There is no evidence that Ms. Markoff had the firearm and ammunition in Ms. Murray’s home.

(2) Ms. Markoff was a battered spouse and was acting under duress when, on the instructions of Mr. Buchanan, she transported the firearm and ammunition to Mr. Richard’s home.

(3) Ms. Markoff lacked the mental element to exercise control over the firearm and accordingly, should be acquitted of all the charges.

CHARGES

[126] Ms. Markoff is charged with the following offences:

(1) careless storage of a firearm pursuant to s. 86(1) of the Criminal Code;

(2) possession of a firearm with accessible ammunition pursuant to s. 95(1) of the Criminal Code;

(3) possession of a firearm while not being the holder of a license pursuant to s. 92(1) of the Criminal Code; and

(4) occupying a vehicle knowing there was a firearm pursuant to s. 94(1) of the Criminal Code

[127] Before analyzing Ms. Markoff’s evidence, it is necessary to state the essential elements of each charge she faces.

CARELESS STORAGE OF A FIREARM

[128] The storage of the firearm must be careless; done without reasonable precautions for the safety of others. The mental element of this offence requires Ms. Markoff’s conduct to constitute a marked departure from the standard of care of a reasonable person in the circumstances. It should be noted that subject to the defence of duress advanced in this case, the careless storage of the firearm, either in Ms. Markoff’s care or in Mr. Richard’s laundry basket at the behest of Ms. Markoff would constitute careless storage of the firearm pursuant to s. 86(1) of the Code. The firearm and ammunition were within a grocery bag. No precautions for the safety of others had been taken by Ms. Markoff. Anyone could simply open the bag and place the bullets within the gun. The gun could be accessed by opening the trunk of Ms. Markoff’s car. Indeed, Ms. Murray did precisely that and located the grocery bag in which the gun had been placed.

[129] It was not necessary for the Crown, in proving the requisite elements of this offence, to adduce evidence that Ms. Markoff had intended to store the gun in that location. The temporary deposit of the gun, either in the trunk of her car or in another location at Mr. Richard’s residence, amounted to “storage” of the firearm under s. 86(1) of the Code: see R. v. Carlos, 2002 SCC 35; [2002] 2 S.C.R. 411.

POSSESSION OF A FIREARM WITH ACCESSIBLE AMMUNITION

[130] The offence includes the following essential elements:

(1) that Ms. Markoff possessed a firearm;

(2) that the firearm was a prohibited or restricted firearm;

(3) that the firearm was loaded or unloaded with readily accessible ammunition capable of firing in the weapon; and

(4) that Ms. Markoff did not have an authorization, licence or registration certificate for the firearm.

[131] There is no dispute that the Crown has proven the second, third and fourth essential elements of this offence. What is at issue is whether the Crown has proven the first essential element of this offence beyond a reasonable doubt.

[132] For the purposes of this offence and the third offence (possession of a firearm while not being the holder of a licence) with which Ms. Markoff is charged; s. 4(3) of the Code defines “possession” as a person having a thing in his or her personal possession, or knowingly having it in the active possession or custody of another person, or having it in any place, whether or not that place belongs to or is secured by him or her, for the use or benefit of himself or herself or of another person. Section 4(3)(b) also states that where two or more persons, with the knowledge and consent of the rest, has anything in his custody or possession, it shall be deemed to be in the custody and possession of each and all of them.

[133] To find Ms. Markoff guilty of possession of the firearm and ammunition the Crown has to prove beyond a reasonable doubt that Ms. Markoff had an intention to exercise control over the subject, R. v. Christie, 1978 2535 (NB CA), [1978], 41 C.C.C. (2d) 282 (N.B.C.A.).

[134] The Crown may establish that Ms. Markoff had personal possession of the firearm and ammunition by proving that she exercised physical control over it with full knowledge of its character, irrespective of how brief the contact may have been. In addition, the Crown may provide evidence that Ms. Markoff had custody of the firearm and ammunition willingly and with intent to deal with it in some prohibited way.

[135] The central issue with respect to this charge is whether Ms. Markoff took custody of the firearm willingly and with intent to deal with it in some prohibited way.

[136] A second issue arises from the Crown’s contention that Ms. Markoff had the gun in the house and moved it into the trunk of her car after quarrelling with her mother. If it is established that the accused moved the gun from the house to the trunk, that may well constitute cogent evidence that Ms. Markoff had exercised some measure of control over the firearm and ammunition and accordingly, was in possession of it.

[137] Contrary to the Crown’s submission however, the evidence, at its highest, is equivocal about whether Ms. Markoff had possession of the gun in her bedroom before placing it into the trunk of her car. Ms. Markoff denied that she had the firearm in her bedroom.

[138] The following testimony from Ms. Murray lends support to the Crown’s contention that Ms. Markoff had the gun in her bedroom: “It appeared that she put something in the trunk” or words to that effect.

[139] However, Ms. Murray’s subsequent testimony creates doubt about whether her daughter had taken the gun from the home and placed it into the trunk of her car. She testified that her daughter appeared more upset on her way back to the house than when she went into the car. If Ms. Markoff had transported the gun from her bedroom into the car, why then would she have been more upset on her way back to the house than when she went to the car?

[140] Second, Ms. Murray testified that she went to look into the trunk because she concluded that something within it had upset her daughter. This testimony supports a reasonable inference that Ms. Markoff may have seen the gun for the first time when she opened the trunk of her car.

[141] To that extent, I find as a fact that Ms. Markoff did not have the gun in her bedroom and that she saw it for the first time when she opened the trunk of her car.

[142] Ms. Markoff could be found to be in possession of the firearm and ammunition if it is found that she willingly handed the gun over to Mr. Richards for safekeeping. In that regard, the Crown submits that Mr. Richards was a credible witness and that the court should accept his testimony regarding how he came into possession of the firearm and ammunition.

[143] I have a few concerns regarding Mr. Richards’ testimony. First, he agreed that he gave a statement to the police as the result of an agreement with the Crown and an expectation of a “deal” in exchange for his statement. Second, he testified that he did not like Ms. Markoff and believed that she had “set him up”. Third, he testified that he did not know Mr. Buchanan while Mr. Markoff testified that both males knew each other. Fourth, Mr. Richards testified that Ms. Markoff texted him at 11:00 p.m. on October 3, 2012 about being late to pick up the gun. He repeated this while being re-examined by the Crown. However, there is uncontradicted evidence that the police arrested Ms. Markoff at approximately 9:40 p.m. They retained her cellphone following her arrest. It is therefore doubtful that Ms. Markoff would have texted Mr. Richards at the time that he claimed she did.

[144] Based on the analysis above, the evidence of possession and control only relates to Ms. Markoff’s decision to take the firearm and ammunition from her mother’s car and to transport it to Mr. Richards’ residence.

POSSESSION OF A FIREARM WHILE NOT BEING THE HOLDER OF A LICENCE

[145] The definition of possession in s. 4(3) of the Code, as discussed in relation to the offence of possession of a firearm with accessible ammunition, applies to this offence as well. It is conceded that Ms. Markoff was not the holder of a licence for the firearm or ammunition. To prove this charge beyond a reasonable doubt the Crown must establish that Ms. Markoff had formed the intention of exercising control over the firearm and ammunition when she transported them to Mr. Richards and during the time that the latter had it in his possession.

OCCUPANT OF A VEHICLE KNOWING THERE WAS A FIREARM

[146] There is no dispute that Ms. Markoff was an occupant of a vehicle when the firearm and ammunition were within it. Neither is there any dispute over the fact that Ms. Markoff knew that the firearm and ammunition were in the vehicle when she drove from her home to Mr. Richards’ residence and gave the bag containing both to him. What is at issue is whether Ms. Markoff had freely occupied the vehicle and transported the firearm and ammunition to Mr. Richards.

DURESS

[147] Section 17 of the Criminal Code includes the following provision:

A person who commits an offence under compulsion by threats of immediate death or bodily harm from a person who is present when the offence is committed is excused for committing the offence if the person believes that the threats will be carried out and if the person is not a party to a conspiracy or association whereby the person is subject to compulsion, but this section does not apply where the offence that is committed is high treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threats to a third party or causing bodily harm, aggravated sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, aggravated assault, unlawfully causing bodily harm, arson or an offence under sections 280 to 283 (abduction and detention of young persons).

[148] Section 17 establishes that an accused can escape liability if he or she is found to have committed an offence or offences because of the threat of being physically killed or physically harmed.

[149] In order for an accused to escape liability, the evidence must establish the following:

First, the accused must be subject to a threat of death or serious physical injury;

• the threat can be express or implied;

• the threat can be against the accused or a third party such as the accused’s family;

• the harm threatened must be sufficiently serious that