Choking Lawyer In Calgary

Choking is covered under two sections of the Criminal Code (Section 246 and 267)Under s 246, choking is an indictable offence, whereas it is a hybrid offence with Crown election under section 267.

The maximum punishment under section 246 is life imprisonment, while the maximum punishment under section 267 is 10 years imprisonment.

As it is found under two section of the criminal code, choking is a unique and serious offence with the potential for lengthy imprisonment

Section 267 involves choking in the context of an assault causing bodily harm, whereas section 246 involves choking a person while intended to assist oneself or another in committing an indictable offence.

Key Takeaways

• Choking is considered a serious and dangerous offence in the law, though the severity may vary depending on whether the charge is elected summary or indictable.
• There is potential for incarceration for a theft charge, varying from 18 months to life imprisonment in the most serious cases.
• Depending on the circumstances of the choking, there may be a presumption against granting bail.
• Bail conditions can include refraining from contacting the alleged victim, a prohibition on drugs, alcohol, travelling, and weapons, and conditions such as curfew or house arrest.
• Choking charges can be beaten. Contact a lawyer for assistance in determining the best strategy for you.

How can a choking lawyer in Calgary help?

When fighting a choking charge, there are numerous advantages to hiring a criminal defence lawyer. A lawyer will provide you with legal advice before they charge you, which will allow you to determine if you would like to continue with their services. A lawyer can also protect you against self-incrimination by allowing you to navigate your conversations with law enforcement.

A lawyer’s purpose is to be dedicated to helping you beat the charge. A lawyer will gather evidence, interview witnesses, and retain expert witnesses if necessary to help you reach the best possible outcome. Lawyers also come with a wealth of experience navigating the criminal justice system and court process and can represent you during trial.

Choking Charge in the Criminal Code of Canada

Choking is a unique charge, as it is not an offence by itself. Choking instead is an offence through an assault causing bodily harm charge, or through someone enabling themselves to commit another indictable offence such as theft or sexual assault.

Examples of Choking Charges

Some examples of a choking charge may include the following:

• A person grabbing their partner around the neck during an argument;
• A person choking another for the purpose of robbing them; and
• A person choking another for the purpose of sexually assaulting them.

What are the consequences of a choking charge?

Choking under section 267 is a hybrid offence with Crown election. This means that depending on the circumstances of your case, the Crown can elect to proceed by indictment or summarily. If an accused is prosecuted by indictment. There is a defence election of court under s. 536(2.1) of the Criminal Code if the Crown proceeds by indictment. There is no mandatory minimum punishment for this offence, whether it is elected indictable or summary. The maximum summary punishment is a $5,000 fine and 18 months of incarceration, whereas the maximum indictable punishment is 10 years imprisonment.

For choking under section 246, the charge is indictable. There is a Defence election of court under s. 536(2.1) of the Criminal Code and a preliminary inquiry. There is no mandatory minimum punishment for this offence. The maximum punishment for this offence is life imprisonment.

Choking Charge Defences

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a choking charge.

• Factual innocence: There are circumstances in which you may be factually innocent of a choking charge. This can include not having the mental intent to commit theft, such as choking someone while you are sleeping by reflex. This can also include circumstances in which you are falsely accused of choking someone when you did not.
• Identity: Depending on the circumstances of your case, a possible defence to a choking charge may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who engaged in the choking.
• Self Defence: If you engaged in choking out of self-defence, this may be a possible defence to your charge. This may occur when you are required to choke someone who attached you first and who is threatening your safety. There must be reasonable grounds to believe that another person is using force on you, and it must be shown that choking was required to stop the attack.
• Defence of Another or Property: If you choked another to defend another person or their property, you may fall under a possible defence to choking. This is a slight variation of a self-defence defence, but follows the same general principles.
• Any applicable Charter defences: The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

Choking Charge Investigation

An investigation into choking is usually initiated by the alleged victim. This person typically makes a report to the police, who may arrive to investigate right away. Given the nature of a choking offence, an investigation may be very brief before the accused is arrested. This is due to the perceived seriousness of this offence, which may motivate the police to arrest an accused as quickly as possible to protect public safety. The accused may be present when police arrive to investigate the incident, or the police may have to track the accused down.

The police will arrive and often request a statement from the victim. If the accused is not present at the scene when the police arrive, a warrant may be issued for their arrest. An accused will have access to the information obtained through the investigation in the disclosure package provided by the Crown.

Bail Conditions for Choking Charges

If you are released on bail after being charged with choking, you will be provided certain conditions which you must follow after being released to the public. If you do not follow these conditions, you can be arrested and held in custody pending another bail hearing. Your bail conditions will provide certain restrictions which you must follow.

Conditions could involve a no contact condition with the alleged victim(s) and a no go condition to the place of the alleged choking or the victim’s property, if those places are not mutually exclusive. Depending on your condition when committing an offence, conditions may limit drug and alcohol use or the possession of firearms and other weapons. More severe conditions can include house arrest or curfew conditions.

Frequently Asked Questions About Choking

Will a choking charge charge show on my criminal record while the case is ongoing?

While a choking charge will not show up on a criminal record while a case is ongoing, police databases will show that you have been charged with an offence. A vulnerable sectors check can possible see ongoing charges you have which you have not been convicted of.

Will a choking charge show on my criminal record after the case is done?

Whether a choking charge shows up on your criminal record will depend on the resolution of your case. If you are found not guilty or have your charge resolved in a manner that does not involve a conviction, your matter will not show up on a criminal record. Alternatively, if you do plea guilty, it will show up on your record. Even if you plead not guilty, the police may have a record that you were charged with an offence.

How long does a choking case take?

The length of a choking case will vary depending on the amount of case in court and the complexity of the case. The first step of any choking case is to order disclosure, which can take anywhere from a few weeks to a few months. Depending on whether you choose to set your matter for trial or resolve before trial will also influence how long your case will take. A broad estimate can be anywhere from three to eighteen months.

Can I travel while a choking case is ongoing?

You can likely travel while a choking case is ongoing. Though you are required to appear in court on certain days, your lawyer can do this on your behalf. Unless bail conditions limit your ability to travel, you should be able to do so freely. However, it is important to note that countries such as the USA will be able to see that a theft case is ongoing, and may not allow you entry into that country.

Can I go to jail for choking?

If you are found guilty of choking, you can go to jail. If the Crown proceeds by indictment, a 267 offence has a maximum of 10 years in jail while a 246 offence has possible life imprisonment. If prosecuted summarily, the maximum punishment is no more than 18 months of incarceration. There is no minimum jail sentence for either offence. Therefore, there is a possibility that you can go to jail for a choking charge, but it is not guaranteed.

Related Offences

• Attempted Murder: If choking or assault becomes extreme, it may be elevated to the level of attempted murder.
• Domestic Violence: Actions such as choking appear frequently in cases of domestic violence.
• Manslaughter: If choking becomes extreme, it may lead to manslaughter.
• Resisting Arrest: People can resist arrest in different ways. Choking may come up as a possible way of doing this.
• Aggravated Assault: Aggravated assault is a more extreme version of assault. Choking may result in a assault being considered aggravating.
• Uttering threats: Uttering threats is often the precursor to physical assault, such as choking.