Violent crimes including choking carry significant punishments in the Canadian justice system.

Choking is a very dangerous act that can lead to brain injury or death. High-profile cases over the past several years have highlighted how dangerous such actions are. Often, choking is an offence that is associated with another offence, most often assault.

calgary choking offence lawyer

In the majority of cases, the consequences of an arrest and charge for a choking offence are severe, including potential jail time.

Cory Wilson has defended many choking offence charges in Calgary and throughout Alberta. With the experience of our team, we can ensure that one criminal charge doesn’t result in unnecessarily damaging consequences for your future.

What is a choking offence?

Choking is the act of applying force to a person’s throat so that their airway becomes fully or partly blocked, causing breathing difficulties.

Choking is often seen as an elevated type of assault. In the most serious cases, it can be regarded as aggravated assault or even a version of attempted murder, leading to significant jail time.

Two specific provisions are made in the Canadian Criminal Code to deal with the choking offence.

Section 246 refers to overcoming resistance to the commission of an offence. This is aimed at anyone using choking, strangulation, suffocation, or other means to render someone incapacitated in an attempt to commit another crime.

In other words, choking is used to subdue a person so that another offence can be committed, such as sexual assault or a theft crime. To be found guilty, a person must be thinking about committing another crime while committing the act, making it a more serious offence than the second type charged under Section 267 of the Criminal Code.

This law was introduced in 2019 as part of the assault with a weapon or causing bodily harm charge. It reads as follows:

Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or is guilty of an offence punishable on summary conviction who, in committing an assault,

  • (a) carries uses or threatens to use a weapon or an imitation thereof,
  • (b) causes bodily harm to the complainant, or
  • (c) choke, suffocate or strangle the complainant.

Penalties for a choking offence

The penalties you will face if convicted for a choking offence depend mainly on which section of the Criminal Code you are charged under and the exact circumstances of the offence.

If you are found guilty of the crime of overcoming resistance to commission of offence, jail time is highly likely and the maximum penalty is life imprisonment (depending on the nature of the underlying crime).

Because an underlying crime is involved under Section 246, the penalty may be served in one of the three ways:

  1. Consecutively: time for the choking offence is served after the time for the underlying crime.
  2. Concurrently: both sentences are served at the same time (though it will be a longer sentence in most cases).
  3. Underlying sentence only: while this may seem like the best result, the sentence may be extended because of the use of choking.

If you are convicted under Section 267 (assault by choking), it is treated as a hybrid offence. This means you may face a summary conviction or indictment. Punishments vary according to the decision of the prosecution.

In cases where the victim’s life was put in danger or has been greatly impacted by the choking offence, the charge may be aggravated and an indictment is more likely.

Summary offences are subject to a maximum sentence of two years in prison. Indictments lead to a maximum of 10 years.

Any criminal charge is likely to have detrimental effects on your future in some of the following ways:

  • A damaged reputation and perceived untrustworthiness in the community
  • Restricted employment opportunities
  • Consequences for child custody issues in divorce cases
  • Travel restrictions, especially to the U.S.
  • Immigration restrictions for non-Canadian citizens

Defences for a choking offence

Even when the evidence against you seems overwhelming, you are entitled to a defence.

Often, Cory Wilson can negotiate a resolution with the prosecution to help you avoid the harshest penalties, such as a lengthy jail sentence.

In other cases, the prosecution’s evidence is weak and we can push for a case dismissal, downgrading of charges with a lesser sentence, or acquittal at trial. Our aim is always to protect your rights and freedoms and to prevent a criminal record if possible.

Generally speaking, the main defences for a choking offence are:

  • Violation of Charter rights: if law enforcement failed to abide by your rights under the Canadian Charter, the case against you could be very weak.
  • The facts do not support the claims: a potential case of mistaken identity (using video surveillance footage, for instance) or key elements of the offence called into question by factual evidence can provide a strong defence for a skilled lawyer.
  • Self-defence: if you were in fear of harm or being attacked and you choked the assailant to protect yourself, this may be a valid defence, providing your actions were in proportion to the threat posed.
  • No intent: if we can prove that you did not mean to commit the act of choking, you cannot be convicted of the charge. The intent is a key element of a choking offence. Likewise, for a charge of choking/overcoming resistance, if we can show there was no intent to commit another crime (no ulterior motive), you cannot be convicted.

With such serious consequences for a choking conviction, the skill of a criminal defence lawyer experienced in these types of assault cases is essential.

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To speak with Cory Wilson or arrange a free, no-obligation consultation with Wilson Criminal Defence, call 403-978-6052 or email us here.


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