Choking charges in Canada under Section 246 of the Criminal Code

Choking / Overcoming Resistance charges carry a potential sentence of life in prison in Canada and an automatica criminal record upon conviction.

Choking is an offence that is often included alongside charges of assault and sexual assault. When interviewing the alleged victim the police will ask if the accused grabbed them by the throat or this information may be provided to 911 or by a 3rd party such as a relative, friend or physician. Once the accusation is made, the police will include this charge which carries a maximum punishment of life in prison and an automatic criminal record upon a finding of guilt in court.

The offence of Choking is codified in Section 246 of the Criminal Code of Canada, which reads:

Overcoming resistance to commission of offence

246 Every one who, with intent to enable or assist himself or another person to commit an indictable offence,

• (a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance, or

• (b) administers or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause any person to take a stupefying or overpowering drug, matter or thing,

       is guilty of an indictable offence and liable to imprisonment for life.

The word “choking” is often used on the paperwork provided to the accused by the police or the courts (usually a Form 10 Undertaking or Form 11 Release Order) despite the actual offence being named “Overcoming resistance to commission of offence”.

Life in prison for choking? Why is this offence considered so serious?

The Criminal Code was written to deter choking because it is considered a significant risk to public safety. It is much easier to kill or seriously injure a person by squeezing or applying pressure to their neck than most people realize. Even if the accused is careful to “let them breathe” it is easy to cut off or reduce the blood supply to the brain which can quickly cause severe permanent damage and death. These risks are increased when alcohol or drugs are also involved. As choking usually occurs in the heat of the moment the accused may not be fully cognizant of the significance of their actions.

While most first time offenders will not receive anywhere near life in prison, they do realistically face jail and an automatic criminal record if found guilty.

A judge does not have the option of granting an absolute or conditional discharge upon finding someone guilty of choking because its maximum sentence is 14 years in prison or more (life). This is an important consideration especially for first time offenders who do not already have a criminal record registered against them.

This means that those who are charged with choking will either need to be found not guilty after a trial or successfully get the Crown Attorney to drop the choking charges to avoid a criminal record. Since choking under section 246 is by definition an offence that takes place while committing another offence, all those accused will have other charges that can sometimes be used by their lawyer to negotiate a deal to get the choking charges dropped.

The most common included charges in addition to Choking are:

1. Assault (s. 266)
2. Assault with a weapon (s. 267 (a))
3. Assault causing bodily harm (s. 267 (b))
4. Aggravated assault (s. 268)
5. Sexual assault (s. 271)

Choking offences can be both domestic in nature or non-domestic. The classification of domestic or not will be determined by the relationship between the accused and the alleged victim. We use the word “relationship” loosely because even something that happens on a bad first date would be classified as domestic violence by the Crown/courts.

All Crown prosecutors are under policies to vigorously proceed with cases classified as domestic violence (aka. DV/or IPV).

In domestic cases the accused may also have no contact/communication provisions that prevent them from talking to their spouse/partner and living in their own home. These conditions can be extremely difficult to abide by if they have nowhere else to live. The no contact clauses will be included on the Form 10 Undertaking provided by the police or the Form 11 Release Order provided by the courts for those granted bail. It is sometimes possible to have these clauses varied to add exceptions allowing contact while the case is ongoing however usually the Crown will not consent to such variations unless the matter is in the process of resolving.

While choking is one of the most serious criminal offences in Canada it is often able to be dropped in exchange for a guilty plea to a lesser offence (and perhaps no criminal record) or as part of a deal to get all of the charges dropped. In Ontario, approximately 99% of cases resolve without a trial.

Some accused do not want to risk getting a criminal record and choose to have their lawyer work out a deal to get all or some of the charges dropped in exchange for them attending counselling for relationships, anger, alcohol, or other factors that may be related to their case. They also may be able to go home while they attend counselling if the alleged victim consents to it.


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You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. Our goal is to have the charges withdrawn and the release conditions varied to allow contact without a risky and unnecessary trial. We provide effective and affordable lawyer representation for those charged throughout all of Ontario, Canada.

You don't need to be apart from your spouse and family, spend tens of thousands of dollars, and risk getting a criminal record because of an unfortunate domestic incident. Have a skilled criminal lawyer protect you and your future from the stigma and consequences of a criminal record.





Are you a lawyer? If you are defending a domestic assault/uttering threats/mischief related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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