How to Beat Choking Charges – Lawyer

Choking is a unique criminal offence under Canadian law. This is because there are two different sections of the Criminal Code that establish choking as a criminal behaviour. The first, under s. 246(a), deals specifically with offenders who using choking as a method to assist them in committing another serious crime. This is referred to as overcoming resistance and it applies to anyone who intentionally attempted to choke, suffocate, or strangle another person to render them unconscious or incapable of resisting. This charge may be laid in connection with a sexual assault, form of homicide or other significant crime.

In 2025, the Firm represented an individual charged with a choking assault in the case of R. v. M.T. [2025]. The client was charged after his ex-partner alleged he had choked her during an argument in their home. The Crown sought a jail sentence upon conviction due to the nature of the offence. While no injuries were reported, the Crown and Court view choking assaults in the context of a domestic relationship as particularly serious and concerning. The Firm litigated the matter for approximately two years before resolving the matter with no criminal record for the accused.

What is Choking Pursuant to the Criminal Code?

The offence of choking is outlined in section 267(c) of the Criminal Code. Choking assaults often occur in the context of intimate partner relationships. Studies show that choking can result in more severe injuries and a higher risk of death than many other forms of intimate partner assault. As a result, section 267(c) was added to the Code to create a statutorily separate offence for choking with more severe penalties. The Code outlines the offence as an assault that involves the choking, suffocation, or strangulation of the complainant.

In practice, an individual can be convicted of choking for any assault that places pressure on the complainant’s neck, chest, or face and restricts or obstructs the complainant’s breathing. Recent court decisions have clarified that obstruction or restriction of the complainant’s breath is not necessary for a conviction for choking. For example, an individual who non-consensually places their hands around another person’s neck and squeezes will be guilty of choking regardless of whether the individual’s breath was restricted during the assault.

How to Defend Choking Charges?

The best defence in any case involving choking charges will depend largely on the facts of the case and the allegations being advanced. A defence must be uniquely tailored to the case to ensure it adequately addresses any and all evidence the Crown will produce at trial. Experienced legal counsel can assist you in determining the best defence strategy for your case.

Self Defence

The defence of self-defence is a statutory defence outlined in section 34 of the Criminal Code.  The Code states that an individual is not guilty of an assault if they use reasonable force against another person whom they have reasonable grounds to believe is using, or is about to use, force against them. The force used in self-defence must be reasonable in the circumstances.

This means that an individual can only physically defend themselves when they have reasonable grounds to believe someone is already, or is about to use illegal force against them. The force used must be in reaction to a present threat and cannot be retaliatory. Finally, and most importantly, the forced used must be reasonable in the circumstances and only what is necessary to repel the attack.

Argue Fabrication

Where the accused individual has been wrongfully accused of choking the complainant, they will argue that the complainant has fabricated the allegations. To prove to the Court that the allegations are false, the defence will attempt to impeach the complainant at trial to destroy their reliability and credibility as a witness. This is accomplished through the cross-examination of the witness. If the defence can uncover weaknesses or inconsistencies in the complainant’s testimony or show that the complainant has lied or misremembered something, the defence can successfully create reasonable doubt and defeat the charges.

Consent

Another potential defence to a choking charge is consent. In some cases, the accused may indicate that the complainant consented to the choking. This often arises in the context of intimate partner relationships. The accused may also argue mistaken belief in consent. This means that while the complainant did not consent, the accused had reasonable grounds to believe they did. In either case, the defendant will testify as to why they genuinely believed the complainant consented to the choking. The defence will also attempt to impeach the complainant through cross-examination to further weaken the Crown’s case.

Will I go to Jail for Choking?

Whether or not an offender will be sentenced to jail for a choking conviction will depend on a number of factors including but not limited to the facts of the case, the presence of any injuries, the context in which the choking occurred, the presence of any aggravating or mitigating factors, the accused’s criminal record, and input from the complainant.

The Code outlines the maximum penalties for those convicted of choking. Where the Crown proceeds by summary conviction the maximum penalty is two years less a day in prison. In cases where the Crown proceeds by indictment, those convicted will face a maximum of ten years in prison.

In practice, those convicted can be sentenced to anything from a discharge to several years in prison. One of the largest factors in determining the appropriate sentence is the facts of the case. For example, an individual who violently chokes their spouse unconscious causing significant neck injuries and warranting a trip to the hospital may be sentenced to several years in prison. The sentence may increase where there is a prior history of violence or the offender has a criminal record.

On the other hand, an individual who briefly grabs another individual by the neck and applies pressure but does not cause injuries will be sentenced far less severely. Such an individual may be granted a discharge if the court finds sufficient mitigation.

Experienced legal counsel will make legal submissions an offender’s behalf to advocate for the lowest possible sentence. Counsel can conduct legal research and assemble a list of cases to support the defences position on sentence. This can significant help in achieving a lower sentence for an offender.

Other Consequences Associated with a Choking Charge

In addition to the negative implications of a criminal charge and conviction, those facing an allegation of choking will face additional consequences. Where children were present during the incident, the Children’s Aid Society may become involved. When the CAS opens a file, they will conduct an investigation separate and apart from the police investigation. This can further complicate things for the accused.

An individual who is convicted of choking will face difficulty in the job market. The vast majority of employers require a background check prior to hiring someone. Having a conviction for choking on one’s record is often viewed poorly by employers and may serious impact the offender’s ability to maintain gainful employment.

Furthermore, those with a criminal conviction for choking may face difficulty traveling outside of Canada, particularly to the U.S. The U.S. regularly refuses entry to those with criminal records. Once refused, entering the U.S. in the future will become more difficult.

R.v. T.M., ONCJ 618

In the 2025 case of R. v. T.M., the Court convicted the offender of 13 different counts all related to an incident of domestic violence. One of the charges the offender was convicted of was choking. The complainant testified that during the incident the offender had choked her to the point that she saw stars. The Court considered the aggravating and mitigating factors in the case, noting the severity of the choking as an aggravating incident. The Court sentenced the offender to a total of five years in prison, with one year attributed to the choking charge.

R.v. M.B., 2023 ONCJ 206

 In the 2023 case of R. v. M.B., the offender was convicted at trial of one count of choking and one count of assault. The complainant alleged that after an argument she had left the house only to return a short time later. When she banged on the door, the offender came out of the residence, throwing her to the ground, violently assaulting her, and choking her. Photos of the complainant just after the assault showed significant bruising on her face and patches of her hair missing. The complainant further testified that she briefly lost consciousness while being choked. Noting denunciation and deterrence as significant sentencing factors in cases of this nature, as well as mitigating factors, the Court ordering a one-year conditional sentence followed by one year probation. The Court also ordered the offender to provide a sample of his DNA and prohibited him from owning weapons for five years.

R. v. J.M., 2025 ONSC 1711

In the 2025 case of R. v. J.M., the offender was convicted at trial of various domestic related charges including choking, four counts assault with a weapon, uttering threats, forcible confinement, and sexual assault. The Crown proposed a seven-year prison sentence for all offences with the defence arguing that three years was appropriate in the circumstances. In sentencing the offender, the Court notes his lengthy criminal record dating back two decades to his youth, the offender’s difficult childhood, substance abuse issues, and the offender’s acknowledgement of his wrongdoing and remorse. The Court noted denunciation and deterrence as the primary sentencing considerations, sentencing the offender to a total of five and a half years in custody. For the choking offence, the Court imposed a 12-month sentence.