By charging Jian Ghomeshi with a single count of "overcome resistance – choking" on top of four counts of sexual assault, the Crown has signalled that it intends to seek a long penitentiary sentence if Mr. Ghomeshi is convicted, legal observers say.
"It ups the ante for sure," Ottawa defence lawyer Paul Lewandowski said. "It's a beacon of the severity of the charges."
The maximum penalty for overcoming resistance by choking to commit an indictable offence is life in prison, while the maximum for sexual assault is 10 years. Not often used, the charge of overcoming resistance by choking for the purpose of committing another offence was written into Canada's original Criminal Code in 1892, and until 1972, whipping was one of the prescribed punishments, Osgoode Hall law professor Benjamin Berger said.
"It is very much like [a charge of] attempt murder except the Crown doesn't have to prove the intent to cause death," Calgary defence lawyer Lisa Silver said.
She said the Crown, which would have participated in discussions with Toronto police before police charged Mr. Ghomeshi, probably had tactical reasons for choosing that charge. Other options in a sexual-assault case are to lay a charge of sexual assault causing bodily harm, or aggravated assault; both carry a maximum of 14 years in prison.
"Why didn't they charge bodily harm? It's hard to prove. There's a whole area of case law. There's also the issue of whether two consenting adults in a sexual relationship can consent to bodily harm. If it's not sexual assault, you can consent to bodily harm but it hasn't been completely decided for sexual [assault]. So the Crown is trying to get away from the tough issues, yet still have the ability to show that these charges are serious and that they will be asking for a large penitentiary sentence if he gets convicted."
Mr. Lewandowski said that a cross-examination of someone who alleges she was choked would be tricky, unless there were e-mails or other evidence that the person consented to be choked. "The lawyer will say, 'that was one of your fantasies.' But if none of those collateral sources [of evidence] are available, you'll be stuck with her answers – 'that's not something I asked for. It was completely unprovoked.'"
Overcoming resistance by choking is an offence of specific intent, meaning the Crown would have to prove it was done for the purpose of committing a serious offence such as sexual assault, Mr. Lewandowski said. Sexual assault is a general intent offence, requiring that the Crown prove unwanted touching of a sexual nature.
He estimated the case would take a year or two to reach trial.