The Jian Ghomeshi case: What is the 'overcome resistance' charge?
Former CBC host charged with 4 counts of sexual assault, 1 of 'overcome resistance – choking'
Former CBC Radio host Jian Ghomeshi has been charged with an offence that has been part of the Criminal Code for decades, but that may not be immediately recognizable to members of the public.
Toronto police announced Wednesday that Ghomeshi had been charged with four counts of sexual assault, following an investigation into complaints against him.
Ghomeshi, 47, also faces one count of "overcome resistance – choking," as described in a police news release.
The charges, announced Wednesday, have not been proven in court, and Ghomeshi's lawyer has said he plans to plead not guilty.
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Section 246(a) of the Criminal Code of Canada indicates it is an indictable offence to attempt "to choke, suffocate or strangle another person" in a bid "to render another person insensible, unconscious or incapable of resistance" for the purpose of committing an indictable offence.
Russell Silverstein, a criminal defence lawyer from Toronto, said the charge can be laid in relation to any number of criminal offences.
"The allegation here, no doubt, is that Mr. Ghomeshi choked his victims with a view to perpetrating the sexual assaults against them," he told CBC News Network on Wednesday.
"One can be guilty of choking to commit any criminal offence, but in this case, I expect it's in relation to the sexual assault charges that he faces that are the other four counts."
Treated as indictable offence
Graham T. Clark, a Toronto-based criminal defence lawyer, said the count has been part of the code since 1972.
"It is an additional offence within an offence," Clark said in a telephone interview on Wednesday.
It is also a count that the Crown must proceed with as an indictable offence because it doesn't have the option to treat it less seriously.
Being an indictable offence, Clark said, means Ghomeshi will have the choice of having a preliminary inquiry ahead of a potential trial, or head directly to trial.
If a preliminary inquiry takes place, Clark said, alleged victims would have to testify twice should a trial go ahead, as they would be testifying at the inquiry as well.
According to the Criminal Code, a finding of guilt carries a potential penalty of "imprisonment for life."
Clark said this element of the count gives a judge "complete discretion" when handing down a sentence, but it does not mean a life sentence is mandatory or likely.
At least 10 news releases from Toronto police this year have included this charge in cases involving individuals other than Ghomeshi.
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