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Choking 2020-08-20T21:39:17+00:00

Your Guide to Choking Charges by Criminal Lawyers in Victoria

What is Choking?

Choking is recognized in law as an inherently dangerous act that can easily cause brain injury or death to the victim. Where employed as a means to facilitate another crime, it is considered especially reprehensible.

There are two offences in the Canadian Criminal Code that involve choking. The more serious of the two is section 246, Overcoming resistance to commission of offence. This offence is designed to punish anyone who tries to choke, strangle, suffocate, or render someone otherwise incapacitated in an attempt to commit another crime. Thus, people charged with this offence are also commonly charged with other offences, such as sexual assaulttheft, and robbery.

The provision for overcoming resistance – choking in the Code is:

Victoria Choking Charge

This offence became well-known after the trial of Jian Ghomeshi. The former CBC radio host was charged with overcoming resistance – choking as well as sexual assault in 2014.

Note that section 246 does not make it a crime to simply choke or strangle another person. In order to be convicted of overcoming resistance – choking, you must have had the commission of another crime in mind when you committed the choking. However, choking someone with no further intent can still be punished under assaultaggravated assault, or even attempted murder, as explained below.

On June 21, 2019 Royal Assent was given to Bill-C-75, An Act to amend the Criminal Code, which created a second choking offence. This new offence is similar to assault with a weapon and assault causing bodily harm. Parliament sought to clarify that choking constitutes an elevated and more serious form of assault.

The provision for assault by choking in the Code is:

Victoria Choking Charge

Investigation of Choking Charges in Victoria

An investigation of a choking allegation in Victoria is typically initiated by a complaint from an alleged victim or witness. A witness may be someone who observed the incident take place, even if they are not the victim. The police will attend the scene and request a written statement from the alleged victim and any other witnesses, then they will launch an investigation.

The police will likely conduct a thorough investigation, given the severity of choking allegations. This may include interviewing all witnesses, reviewing any video surveillance, seizing any evidence involved, photographing the scene, and obtaining medical records.

After the police have gathered their evidence, they will arrest you if they believe you are the perpetrator. If you are not present at the scene, police will track you down or issue a warrant for your arrest.

After you have been charged, police will provide a package with all the evidence they collected, known as the “disclosure package,” to the Crown Prosecutor. You will have the right to access this disclosure package to see the evidence against you. Once you retain one of our lawyers, we will assist you in obtaining the disclosure package, and we will review it with you to assess the strengths and weaknesses of the Crown’s case, as well as any legal defences that may be available to you.

Bail Process and Conditions for Choking Charges in Victoria

How do I get myself or a loved one out on bail for choking charges in Victoria?

Given the nature of the offence, if you have been charged with choking, you will likely be detained and held for a bail hearing to secure your release.

The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought to the district office or Courthouse.

On a weekday, you will be transferred from the district office to the Victoria Courthouse for your bail hearing. The address of the Courthouse is as follows:

Victoria Courthouse
850 Burdett Ave
Victoria, BC V8W 1B4
(250) 356-1478

If you are arrested after approximately 3 p.m., you will be held at the detachment until the following morning, at which time you will be transported to the Courthouse for your bail hearing. Your hearing will be conducted in front of a Provincial Court Judge.

If you are arrested on Friday after approximately 3 p.m., or if you are arrested on a weekend, your bail hearing will be conducted at the detachment via telephone with a Justice of the Peace from the Justice Centre.

Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.

Because of these difficulties while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.

Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail. We will immediately do the following:

  1. Call in to the district office where you are being held, or the Victoria Courthouse if you have been transported, and speak to you.
  2. Contact the Prosecutor assigned to the bail hearing to start negotiating your release.
  3. Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the Court about why you should be released on bail.
  4. Conduct either an in-person or teleconference bail hearing to secure your release.

When you attend your bail hearing, the Judge will consider the following factors:

  • Is detention necessary to secure your attendance in court?
  • Is detention necessary to protect the public from a substantial risk of re-offence?
  • Is detention necessary in all the circumstances to maintain confidence in the administration of justice?

If you are released, you will likely face tight conditions. Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).

In order for our lawyers to secure less stringent conditions, the Judge will need to be satisfied that you will attend court as required and that you pose no significant risk of harm to the public. This may be difficult in choking cases, but it is not impossible.

Our lawyers are often successful at persuading the Crown Prosecutor in charge of bail to let our clients out. If we can’t convince the Prosecutor, we can conduct a formal bail hearing and work to convince the Court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Supreme Court of British Columbia.

Where can I pay for bail for choking charges in Victoria?

If you or a loved one are charged with choking in Victoria and granted bail, you may be required to provide a cash deposit to secure release. You can pay bail at any court registry (courthouse) in British Columbia. If you live in Vancouver, you can pay bail there for someone detained in Victoria.

The Victoria court registry is open from 8:30 – 4:30, Monday to Friday. The contact details of the registry office at the Victoria Courthouse are as follows:

Victoria Courthouse
850 Burdett Ave
Victoria, BC V8W 1B4
(250) 356-1478

To pay your own bail, you can make a payment after your hearing, assuming you have sufficient funds with you to do so.

How do I change my release conditions for choking charges in Victoria?

Release on bail with choking charges may include restrictions that impact your day-to-day life. This could include conditions to refrain from:

  • Contacting or communicating with any alleged victim or witness,
  • Visiting the home or place of work of any alleged victim or witness,
  • Staying out beyond a certain time (i.e. curfew),
  • Breaking any laws,
  • Using drugs or alcohol,
  • Possessing weapons,
  • Leaving your house (i.e. house arrest), and/or
  • Travelling.

Some of these conditions can prove to be difficult, especially where an alleged victim or witness is a family member of yours. If you share a home with the alleged victim, you are unlikely to be allowed to return home until the matter is addressed again in court.  Even if you are paying the rent, are on the lease, or own the home outright. A competent defence lawyer will address this challenge immediately.

The Judge may also impose some additional conditions such as:

  • Residing where approved,
  • Reporting to probation,
  • Attending counselling, and/or
  • Maintaining or seeking employment.

A variety of factors will be considered when determining your precise restrictions, including:

  • Your criminal history,
  • Your physical and mental condition,
  • The nature of the alleged choking incident,
  • The likelihood that you will flee,
  • Your history of drug/alcohol usage,
  • Whether the charge arose out of a domestic situation,
  • Whether you have stable employment,
  • Whether you have stable living arrangements, and
  • Whether you have ties to the community.

If you have already been released, at least for the short term, it is critical that you make arrangements to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.

Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether.

If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions. That way, you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.

Penalties for Choking Charges in Victoria

If you are found guilty of overcoming resistance – choking (s. 246 of the Criminal Code), you can expect to face significant penalties. A conviction almost always results in jail time. The maximum sentence for a conviction for choking is life imprisonment.

Your penalty for overcoming resistance – choking will either be served

  • Consecutively: After you serve your time for the underlying crime, you will serve your time for the choking;
  • Concurrently: Your sentence for the choking will be served at the same time as the underlying offence, however it will be a longer sentence, lengthening your overall punishment; or
  • Underlying sentence only: You will only be given a sentence for the underlying offence; however, it will be increased significantly because of the use of choking to commit it.

Assault by choking (s. 267(c) of the Criminal Code) is treated as a hybrid offence in Canada. This means that the Crown can choose to prosecute you summarily or by way of indictment. Your punishment will vary depending on how the Crown chooses to proceed. If the Crown proceeds summarily you could face a maximum sentence of two years’ imprisonment. If the Crown proceeds by indictment, you could face a maximum sentence of 10 years.

When determining the severity of your punishment, the Court will consider the impact of the choking on the alleged victim. Where the alleged victim has been choked to the point of unconsciousness or bodily harm, this will have an aggravating effect on your sentencing.

In addition to the penalties above, a conviction for choking can have wide-ranging negative consequences on your future:

  • It may affect your reputation in your community or with social groups;
  • Potential employers may refuse or terminate your employment if their business involves vulnerable sectors such as children or the elderly;
  • Your friends, family and peers may view you as unworthy of their trust;
  • You may have civil, immigration, or child custody consequences; and
  • You may have difficulties traveling abroad, including to the United States.

With charges as serious as choking, it is important to have an experienced lawyer with extensive choking defence knowledge to assist you in reviewing your case.

Even if the evidence is stacked against you, it may be possible to negotiate a resolution to avoid a lengthy jail sentence. We may be able to convince the Crown to let you plead guilty to a lesser offence for a lower sentence, or agree to a set of facts that removes your case from the more serious categories of penalties.

Rest assured, our lawyers will work hard to defend you so that you are not saddled with the most serious consequences of a criminal conviction for choking. To learn more about potential resolutions, please visit our Resolutions page, or read our FAQ on resolutions and other sentencing options.

Victoria Choking Charge

Defending Choking Charges in Victoria

What are the best defences to choking charges in Victoria?

In choking cases, the defences that may be available to you depend on the facts of your case. In general, the best defences are:

  • Factual Innocence: This is usually the strongest defence because the facts and the evidence do not support you being there, choking someone, or other basic elements of the offence. This could include:

No mental intent: In order to be convicted of overcoming resistance – choking, the Crown must prove that you committed the offence to assist you with committing another crime. A common defence is that you did not intend to choke someone in order to commit another crime. A basic example would be if you choked someone in a fit of rage, with no ulterior motives. It is important to note, however, that you can still be charged with the lesser offence of assault by choking.

Identity: In some circumstances where the offence was not recorded by surveillance footage, or the footage is poor quality, you may be able to raise an identity defence. For example, authorities could have made a mistake in identifying you as the perpetrator based on the poor quality of the footage. In order to effectively raise this defence, you may need corroborative evidence, such as an alibi to where you were at the time of the offence.

Self-defence: If you were being attacked, and you choked someone to protect yourself, this would challenge the mental elements of the offence. You must be able to prove that your actions were proportional to that which you were defending yourself against.

  • Violation of Constitutional Rights: The Canadian Charter of Rights and Freedoms sets out your rights before and after your arrest. If the police fail to abide by these rights, it could aid in your defence.

To be convicted of overcoming resistance – choking, the Crown is required to prove that you not only choked someone, but that you did so intending to commit another offence. While the Crown must prove beyond a reasonable doubt that you committed the offence, you may bear some responsibility in raising certain defences at trial.

To be convicted of assault by choking, conversely, the Crown must prove beyond a reasonable doubt that you applied force by choking, suffocating or strangling another person, without their consent.

The availability and strength of any defence depends entirely on the specific facts of your case. Our lawyers have significant experience assessing the availability and strengths of various potential defences in choking cases, as well as presenting any and all available defences to the Court at trial. Even if you believe that you will be found guilty, it is important that you obtain a legal opinion about the defences that may be available to you.

How can I help defend choking charges in Victoria?

If you have been charged with either choking offence in Victoria, the following can help your lawyer build a strong defence:

  • Provide your lawyer with a statement about what happened;
  • Collect and maintain all documents and records about the event;
  • Gather a list of witnesses that may support your version of events; and
  • Log any relevant texts, emails, phone calls or photographic evidence.

As soon as you are released on bail, you should start to gather any information that may be of use to your lawyer. What information is relevant will depend on the facts in your case. If you are uncertain what information to collect, you should contact one of our lawyers immediately to create a plan of action for gathering information.

If you are truly proactive about the matter, consider doing the following:

  • Secure proof of employment;
  • Secure reference letters;
  • Enroll in counselling (anger management/substance abuse/parenting);
  • Secure a record of prescriptions; and
  • Secure a record of any mental health conditions you suffer from.

These steps can be very helpful for building an effective defence (or convincing the Prosecutor to drop the charges altogether).

What can a lawyer do to help me defend against choking charges in Victoria?

As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause, including:

  • Assembling documents, photographs, texts, etc. that contradict the allegation and support your defence;
  • Gathering evidence from witnesses that support your version of events;
  • Identifying mistakes in the actions of the police, such as Charter breaches;
  • Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.; and
  • Finding weaknesses or “holes” in the Crown’s case that may make it difficult or impossible for them to establish the elements of the offence.

What’s Next?

Even simple choking cases can be complex and fact-specific. We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.

To learn more about how we can help, please contact our team of Choking Lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.

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