For possibly the first time since Confederation, choking is a hot topic in criminal law. During the Jian Ghomeshi trial, several news outlets ran pieces asking questions about this strange offence. Catherine Porter at the Toronto Star has called for a stronger strangulation law. Women’s groups are performing studies on strangulation and domestic violence, many demonstrating that strangulation is a strong predictor of partner homicide.
This is the offence:
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 [. . .]
is guilty of an indictable offence and liable to imprisonment for life.
Some immediate questions come to mind:
- Why is the offence nestled between the offences of poisoning and booby trapping in the Criminal Code instead of being grouped with the assaults and sexual assaults?
- Why does the offence require an intent to enable the commission of a second offence? For that matter, why is the offence titled “Overcoming resistance”? Does this imply strangulation isn’t so bad by itself and the real concern is the other offence?
- Similarly, why require an intent to render a person “insensible, unconscious or incapable of resistance”? This would seem — inexplicably — to exclude choking committed in anger for no purpose, or for purposes such as instilling fear or exercising control.
Those “extra” intent elements aren’t meaningless. Ghomeshi’s defence team submitted he could not be found guilty on the choking charges since those two elements weren’t proved, and according to media reports the Crown made no submissions on the offence.
So what’s going on with the offence of choking? Why is it so strange and poorly suited to its purpose?
In researching an upcoming paper on the offence of choking, I’ve found the answer: we’re using it for the wrong purpose. Choking was never designed to capture domestic and sexual violence. The offence was passed in the 19th century to criminalize garrotting robberies in the United Kingdom and hasn’t been altered since.
The offence first appeared in statute in the UK Offences against the Person Act, 1861, and although the language was archaic the elements of the 1861 offence were identical to our current version. The historical UK Hansard debates demonstrate very clearly that the offence was directed at the “garrotting panics” of the mid-1800s in which citizens came to fear the (likely exaggerated) image of street robbers who strangled pedestrians from behind and then relieved them of their belongings while they were unconscious.
From those beginnings, the offence was imported wholesale into the first Canadian Criminal Code and the elements have been untouched ever since. The British fear underlying the offence accompanied it to Canada: an 1857 Montreal newspaper article decrying the “immense development of rascality” in the criminal classes told readers (wrongly) that garrotting had become such a plague that terrified pedestrians had taken to walking the streets in spiked iron collars.
Despite Canadian courts opining on Parliament’s intention in enacting the offence, Parliament has scarcely touched the offence since Confederation and has never debated its substance. The sole attention paid to choking by the Canadian legislature was over the offence’s punishment of flogging, defended in 1869 by no less than Sir John A. Macdonald (who wondered in debates why Sir Antoine-Aimé Dorion “was so very anxious about the personal comfort of the robbers”), but then removed in 1972.
Now that the garrotting panics are long gone and the empirical evidence is mounting that partner strangulation is an extremely dangerous predictor of homicide, the offence has been repurposed for sexual and domestic violence. But as drafted the offence is much better at criminalizing Victorian-era garrotting robberies than the types of strangulation that might end up killing someone today.
It will be interesting to see whether Parliament thinks the offence is worth a second look — or maybe a first one.
Matthew Oleynik is a Toronto research lawyer and the founder of rangefindr.ca, a Canadian sentencing research service.