Criminal Code of Canada - section 246 - Overcoming resistance to commission of offence

section 246

INTRODUCTION AND BRIEF DESCRIPTION

This section describes the criminal offense of attempting to choke or strangle someone or administering a stupefying drug with intent to enable or assist in the commission of an indictable offense.

SECTION WORDING

246 Every one who, with intent to enable or assist himself or another person to commit an indictable offence, (a) attempts, by any means, to choke, suffocate or strangle another person, or by any means calculated to choke, suffocate or strangle, attempts to render another person insensible, unconscious or incapable of resistance, or (b) administers or causes to be administered to any person, or attempts to administer to any person, or causes or attempts to cause any person to take a stupefying or overpowering drug, matter or thing, is guilty of an indictable offence and liable to imprisonment for life.

EXPLANATION

Section 246 of the Criminal Code of Canada deals with the offence of attempting to assist or enable oneself or another person to commit a serious crime by using physical force or drugs on another person. The section criminalizes attempting to choke, suffocate, or strangle another person with the intention of rendering them insensible, unconscious or incapable of resistance. It also punishes administering or attempting to administer a stupefying or overpowering drug, matter, or thing to a person. The offence is considered particularly serious because it involves the use of force or coercion to facilitate the commission of an indictable offence. It is not necessary for the actual commission of the indictable offence to have taken place for this offence to be considered criminal. The mere act of attempting to use physical force or drugs for the purpose of enabling or assisting another person to commit an indictable offence is enough for it to be considered a serious crime. The sentence for the offence of attempting to assist or enable oneself or another person to commit an indictable offence under section 246 is imprisonment for life. This reflects the severity of the offence and the dangers of using physical force or drugs to coerce another person to commit a serious crime. In summary, Section 246 of the Criminal Code of Canada is designed to deter the use of physical force or drugs to coerce another person to commit a serious crime. It recognizes the seriousness of such offences and ensures that those who attempt to commit them face severe consequences.

COMMENTARY

Section 246 of the Criminal Code of Canada outlines the criminal offense of attempting to incapacitate another person in order to facilitate the commission of a separate indictable offense. This can be achieved through a variety of means, including choking, suffocating, strangling, or administering stupefying drugs, which can render the victim unconscious, insensible, or otherwise incapable of resisting. The severity of this offense is reflected in the fact that it carries a potential sentence of life imprisonment. This reflects the serious nature of attempting to facilitate other criminal offenses by infringing upon another person's bodily autonomy and ability to protect themselves. It is considered an egregious violation of a fundamental aspect of personhood - the right to safety and bodily integrity. One of the key elements of the offense outlined in Section 246 is intent. In order to be found guilty of this offense, it must be proven that the accused intended to assist themselves or another person in committing a separate, indictable offense. This means that accidental or unintentional incapacitation of another person would not be considered a criminal offense under this section. Furthermore, the section specifies that the use of any means calculated to choke, suffocate, or strangle another person can constitute a criminal offense. This highlights the broad range of actions that can be taken to achieve the desired outcome of rendering the victim insensible or incapable of resistance. It is noteworthy that this offense applies equally to attempts to incapacitate another person for the purposes of committing sexual assault as it does for other types of offenses, such as robbery or burglary. This highlights the importance of recognizing the potential for violence and harm in all situations where one person seeks to incapacitate another, regardless of the specific motivations behind the offense. Overall, Section 246 of the Criminal Code of Canada serves as an important deterrent against attempts to infringe upon another person's bodily autonomy and rights. By creating a serious criminal offense that carries a potential life sentence, the Code sends a clear message that attempts to incapacitate another person for criminal purposes will not be tolerated in Canadian society. By protecting the fundamental right to safety and security, this section of the Code contributes to the broader goal of creating a just and equitable society.

STRATEGY

Section 246 of the Criminal Code of Canada addresses the issue of parties who assist others to commit an indictable offense. The section states that anyone who attempts to choke or suffocate another person with the intent to enable themselves or someone else to commit an indictable offense or administers a stupefying drug to another person is guilty of an indictable offense and liable to imprisonment for life. However, when dealing with this section of the Criminal Code, several strategic considerations should be taken into account. The first strategic consideration is that the Crown has the burden of proof, and it must prove the accused's intent beyond a reasonable doubt that the accused's actions were intended to help or encourage the commission of the offense. Therefore, the Crown must provide sufficient evidence to prove the accused's intention, which can require an in-depth understanding of criminal law and evidence gathering techniques. Another strategic consideration is the required element of attempt. The Crown has to show that the accused engaged in conduct that was likely to result in the commission of the offense. This legal requirement can pose a significant challenge to Crown prosecutors as they have to prove that the accused took substantial steps towards the commission of the offense. The third strategic consideration is that the accused's conduct may be partially or entirely excused from criminal responsibility. For example, if the accused acted under duress or coercion, they may not be criminally responsible for their actions. Thus a thorough understanding of the circumstances surrounding the case and the accused's mental state is vital to determining a defense strategy. With respect to strategy, several options can be employed to defend charges brought under Section 246. One strategy is to argue that the accused did not have the required mens rea or intent to commit the offense. This strategy will also include a thorough review of the evidence presented by the Crown to ensure that it supports the Crown's position. Another strategy is to rely on a defense of impossibility. In such cases, a defense lawyer would argue that even if the accused intended to commit an offense, their actions could not have lead to the commission of that offence. For example, if the accused administered a drug to an individual, but it did not affect them in the intended way, the accused could argue that their actions could not have enabled an offense. Finally, a strategy of claiming duress may be employed. This defense would argue that the accused acted out of fear of grave peril. Duress may be raised when a third party has threatened the accused with harm if they did not assist in the commission of the offense. In conclusion, dealing with case files under Section 246 of the Canadian Criminal Code requires a careful and strategic approach to ensure the best possible outcome. This includes analyzing the facts of the case, understanding the accusatorial strategy, and crafting a strong case to rebut the Crown's evidence. With the right approach and understanding of criminal law and evidence gathering, defendants can be confident in the representation they receive from their criminal defense lawyers.