The charge of “Overcoming Resistance to Commission of Offence” is a critical component of Canadian criminal law, especially in cases involving aggravated forms of assault and sexual assault.
What is “Overcoming Resistance to Commission of Offence”?
Section 246 of the Criminal Code defines Overcoming Resistance to Commission of Offence as an attempt to choke, suffocate, or strangle another person, or administer a stupefying or overpowering drug, with the intent to enable or assist oneself or another person to commit an indictable offence.
Legal Interpretation and Implications
- Actus Reus (Guilty Act): Involves the use of force, like choking, to overcome the resistance of another person.
- Mens Rea (Guilty Mind): The intention to commit a primary offence using such force is crucial for conviction.
- Punishments: It carries a maximum penalty of life imprisonment. Sentencing can be concurrent, consecutive, or only for the primary offence.
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Potential Penalties for Overcoming Resistance to Commission of Offence
The charge of ‘Overcoming Resistance to Commission of Offence‘ is classified as an indictable offence. It does not carry a mandatory minimum penalty, but the maximum potential penalty is life imprisonment. In instances where the victim experiences choking severe enough to cause loss of consciousness or to inflict physical harm, this circumstance will serve as an aggravating factor in the case.
Available Dispositions:
- Suspended Sentence s.731(1)(a)
- Stand-alone Fine s. 731(1)(b)
- Custody s. 718.3, 787
- Custody and Probation s. 731(1)(b)
- Custody and Fine s. 734
- Conditional Sentence
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Defences Against the Charge
Charging an individual with overcoming resistance gives the Crown significant plea bargaining power given the seriousness of the consequences of a conviction. Defences, beyond testing the mere credibility of the testimony in support of the allegation and Charter of Rights issues which may result in the exclusion of evidence, do, however, exist to an overcome resistance charge:
- Self-Defence: Claiming the act was in self-defence.
- Lack of Intention: Proving there was no intent to commit the primary offence or the act of choking.
Honest but Mistaken Consent: In situations where the supposed victim had consented to the act of choking, this may serve as a legitimate defence (with serious limitations depending on the nuances of the situation).