Jian Ghomeshi case: What is ‘overcome resistance – choking?’

This is an updated version of a post originally published in November, 2014.

TORONTO – Former CBC radio host Jian Ghomeshi will be in court on Monday fighting four charges of sexual assault and one count of “overcome resistance – choking.”

The latter is a much more unusual charge.

Here’s how it’s described in Section 246 of Canada’s criminal code:

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,

What does the charge mean?

It means trying to forcibly stop someone from resisting you — by drugging, strangling, suffocating or, in the case of this charge, choking them — in order to allow you to commit an indictable offence.

What difference will it make in this case?

It adds an extra degree of severity to the charges.

Sex assault is hardly a minor offence. But unless the charge is aggravated sexual assault, the maximum sentence is about 10 years.

(The vast majority of sexual assault charges in Canada are first degree — more than 96 per cent of all people charged with sexual assaults in 2014 were charged with first degree. Some advocates for survivors of sexual assault have argued that more serious degrees of sexual assault aren’t used as much as they should be, in large part because the harm a Crown needs to prove is that much greater.)

“Overcoming resistance,” on the other hand, can put you behind bars for life. But the Crown needs to prove not only that Ghomeshi choked someone, but that he did so with the intent of committing a serious offence.

Ghomeshi has denied all the charges and says all his interactions with the complainants was consensual.