R. v. D.B., 2022 ONSC 2854
This Ontario Superior Court of Justice case is an example of the sentencing process involving a s. 246 choking offence. In this case the offender was charged with multiple sexual assaults against three different women. It was found that the offender had choked one of the victims to commit the sexual assault. The offender was known to all the victims as they were connected through their shared drug use. The offender used this connection to prey on the vulnerabilities of the victims and enable him to sexually assault them.
Given the number of offences and the victims, the offender faced a significant sentence. He received 18 years imprisonment for all the charged offences. Alongside the main sentence, the offender was issued several ancillary orders including a DNA order, a SOIRA order and a weapons ban.
In addressing the choking aspect of these offences, the court referenced another case with similar facts, relying on the following quote. “Lofchik J. found that Simas-Mamani had ‘clearly endangered [his victim’s] life, as the difference in outcome between unconsciousness, brain damage, and death may be only a matter of a few additional seconds of pressure’” [at para 77] This quote clearly demonstrates the seriousness of choking to commit another offence. It is obvious that an offender who chooses to choke their victim deliberately makes that decision without considering the risk they are subjecting the victim to. Given the disastrous outcomes that choice might lead to, the treatment of choking under the Criminal Code is well-justified.
R. v. Martin, 2021 ONSC 6964
This Ontario Superior Court of Justice case was an appeal decision for the sentence received following the offender’s guilty plea. The case is an example of how courts treat choking as a form of domestic violence. Although the offender pled guilty to assault causing bodily harm under s. 246(b) instead of assault via choking under s. 246(c), the facts of the case show that the offender clearly choked his partner to the point of unconsciousness during an argument that turned physical. The sentence issued at first instance was a suspended sentence with twelve months of probation. The Crown appealed that sentence on the basis that the sentence was too light given the facts of the case, even if the offender pled guilty and was a first-time offender.
The appeal court agreed with the Crown and overturned the original sentence. In its place, a 60-day sentence was issued plus the original probation order. The court found that the original sentence put too much weight in the offender’s first-time offender status, guilty plea, and rehabilitative efforts. Reflecting on other cases with similar facts, the court determined that a jail sentence is necessary even where an offender’s choking of a domestic partner does not result in the victim’s unconsciousness. The fact that the original sentence did not fit the seriousness of the offence does not discount the other factors that work in the offender’s favour, so those were still accounted for when the new sentence was issued.