https://web.archive.org/web/20041123103417/http://members.rogers.com/kyobukan/info2_thelaw.htm
Introduction ∞
Law as a framework of rules and procedures designed to regulate society’s members is a dynamic system. As such, it is in a constant state of development and refinement to meet the needs and standards of the community as they evolve over time. This proposition applies to civil and regulatory laws and perhaps to some lesser extent to criminal law as well.
This paper is intended as a brief, information summary regarding the criminal law as it relates to self-defense. The infinite variations of facts regarding human encounters defies any attempt to provide hard and fast rules applicable to all situations. Accordingly readers are advised to relate specific inquiries directly to a lawyer to receive legal advice tailored to their particular questions.
In criminal law, perhaps the longest standing justification for the use of force against other persons is that of self-defense. Unfortunately, the provisions regarding self defense and the use of force are scattered throughout the Criminal Code of Canada in sometimes lengthy and convoluted sections. The interpretation of these sections and how they apply to particular fact situations then becomes the subject of the ‘common law’, that is the interpretations and rulings handed down by the higher and lower courts for use in binding or persuading other courts.
Everyone in Canada is deemed to know the law. Hence, the Criminal Code provides that ignorance of the law is no excuse in terms of defending a criminal charge. For the scope and purposes of this paper the necessary trade-off between precision and comprehensiveness, as against clarity and understanding, will be resolved in favor of the latter. As such, the applicable rules and sections of the Code will be reduced to the writers’ clearest translation into vernacular language.
Self Defense ∞
Generally speaking, everyone who is assaulted by another without having provoked the assault is justified in repelling force by force, if the defending force used, is neither intended nor is in fact, more than is necessary to enable the person to defend them self. In other words, you can’t justify destroying an obnoxious drunk simply because he struck first.
If a person provokes another by words or gestures or in effect asks for a fight, they may not have the same justification in law. In the case of person delivering the first blow or otherwise provoking and assault on themselves, they may only be justified in using force if it is used under reasonable fear of death’ or serious bodily harm from the person provoked and if they declined further conflict or retreated as far possible before the necessity of further violence arose. Therefore, someone who starts a fight may be more limited in the defending force they use.
In the defense of oneself or others under one’s protection (discussed below) the general rule is that the defending force used must be proportionate to the attacking force. That is, the defending force must not be, nor intended to be, excessive. Everyone who is authorized by law or justified in law to use force is criminally responsible for any excess force, depending on the circumstances.
Applying the above common sense, if someone attempts to trip you or to insult you, there is probably no justification for you to strike him or her. If someone calls your girlfriend or boyfriend a despicable name you probably aren’t justified in hitting him or her since provocation is not a defense to an assault charge. Further, if someone punches or attempts to punch you it may be difficult to justify beating them senseless.
Again, common sense is the general rule. If a small person walks up and hits a much larger person the larger person is expected to repel force with force only to the extent necessary to defend themselves, i.e. you can’t knock them through a wall. On the other hand, if a larger or seemingly more powerful person were to walk up and hit you, you’d probably be justified in disabling them, within reason.
By the same token, women may be justified in using greater force in defending against men (especially larger men) than might be the case in situations of women against women or men against men. Similarly, if a man must defend against an attacking woman, it may be that excessive force will more easily be found.
The law recognizes that in self-defense situations one does not have time to calculate the exact force necessary to defend and that self-preservation is the first instinct. As such it has been held in leading cases that one does not have to measure one’s blows to a nicety, nor does one have to wait to be struck first. In another interesting case, it was held that a defending blow, which was excessive force, was as a result of reflex and as such lacked the necessary intention for criminal liability to attach.
As the urgency of the situation increases so does the defender’s justification for the use of force. If a person is faced by more than one attacker, or by an attacker armed with a weapon then the law holds, as does common sense, that increasingly greater force may be used to defend. If one faces numerous attackers or an attacker seemingly much greater in size, then the use of weapons may also be justified, as is weapon against weapon.
Defense of Others ∞
Everyone is justified in using force to defend them self or anyone under their protection from assault if the force used is no more than necessary to prevent the assault or repetition of it. It has been decided in some cases that this provision only applies to defense against unprovoked assault. Further, the meaning of “anyone under his or her protection” remains unclear. It probably, includes family members and others in close relationships with the defending person.
The law further justifies one in using as much force as is necessary to prevent the commission of serious offences that would likely cause serious and immediate injury to anyone or anyone’s property. This provision probably covers a person defending others who are not technically “under their protection” as noted above.
There also exists justification in the law for those who witness a breach of the peace to interfere to prevent the continuance and to even detain such persons breaching the peace, for the purpose of giving them over to the custody of a police officer. Again, the qualifier is that no more force than is necessary can be used to prevent the breach of the peace and the force must be proportioned to the danger created by the breach of the peace. Obviously then, one could not likely be justified in punching someone out to stop them from slapping another. As well extreme caution should be exercised in any such endeavors because another section of the Code authorizes citizen’s arrests only when one finds another committing an indictable (i.e. serious) offence. Therefore it may be that criminal or civil liability may attach to those who are overzealous in making so-called ‘citizens arrests’.
Defense of Property ∞
Any person who is the owner of, or who is in lawful possession of property may arrest (i.e. detain for the police) any person whom he finds committing a criminal offence on or in relation to that property. This is another situation justifying a citizen’s arrest, but it is only for the purpose of delivering the offender over to a police officer as soon as possible and may well require compliance with certain rights of the offender under the Charter of Rights and Freedoms.
Further, everyone who is in peaceable possess ion of personal property (not land) and those lawfully assisting such persons are justified in preventing a trespasser from taking it or in taking it back from the trespasser if they do not strike or cause bodily harm to the trespasser. However if the trespasser (i.e. guy who tries to steal your bike) persists in trying to take or keep the item after the peaceful possessor lays hands on it, then the trespasser is deemed to commit and unprovoked assault (i.e. you may defend as in personal self-defense).
Persons who are in peaceable possession of a dwelling-house (and those lawfully assisting them) are justified in using as much force as is necessary to prevent anyone without lawful authority from forcibly entering or breaking into the dwelling.
Finally, anyone in peaceable possession of a dwelling house or land (and those lawfully assisting) is justified in using as much force as is necessary to prevent any person from trespassing on the dwelling or land. Any trespasser who resists any such lawful attempt to remove them is deemed to commit an unprovoked assault (hence, self defense kicks in again).
Self Defense and Martial Arts ∞
The Criminal Code says nothing about higher standards or greater restrictions to be applied to those who are skilled in fighting, for example martial artists. But again, the general rules described above and common sense must prevail. It may be that a martial artist would require less force to defend against an attacker, because of their skill at avoiding being hit. On the other hand, one would rarely know whether or not a stranger attacking was skilled in fighting or not.
There is nothing in the Criminal Code, which deems black belts or any level of martial artist to be “lethal weapons” or imparts any other restrictive designation. However, it may be that a notoriously skilled fighter would be held to a higher standard in the eyes of the reasonable person. This may be a practical application of the value of the martial arts ideal of humbleness.
Let’s look at the example of a person trained in martial arts who is attacked by two persons. If the defender had to render the attackers unconscious or cause injury to them, there might be two or more persons who could lie and say the one person was a bully who beat them up. If criminal charges were laid against the martial artist who claimed self defense and the prosecution somehow knew of the accused martial arts training, it might be that the prosecution would attempt to show in court that the martial artist being skilled and therefore more adept at self defense and in control of the force to be used, then used more force than was necessary. Therefore, the martial arts ideal of avoiding confrontations whenever possible is certainly the best course from a legal prospective.
Another area that deserves mention is that if weapons. Anything can be deemed a weapon depending on how it is used. Rolling pins, shoes, TV. sets and fishing rods have all been found to be weapons at some point. Obvious weapons such as bo staffs and tong-fa may easily give rise to Weapons Dangerous charges (formally known as Possession of a Weapon Dangerous to the Public Peace) depending on their use or the context surrounding their discovery.
Charges of Weapons Dangerous sometimes arise when a police officer checks a car and finds a bat etc. under the seat. A response from the driver that “its only for protection” may well land one in criminal court. Similarly an explanation that a pocketknife is carried in ones pocket “for protection” as opposed to “where else do you put a pocket knife” may result in a charge of Carrying a Concealed Weapon.
Of course, whether such charges in the situations described would result in convictions is another matter. On a charge of Weapons Dangerous to the Public Peace the prosecution would have to show an intention to possess such weapon for the prohibited purpose prior in time to its actual use. Therefore a weapon not possessed for the purpose of intended use as a weapon or concealed not for the purpose of intended concealment may not give rise to criminal liability even if subsequently used as a weapon.
The bottom line on weapons of any kind is to use extreme caution and to transport them to and from the Dojo only for sporting purposes.
A final area to be discussed regards consensual fights. Assault is defined -in the criminal code as follows:
(1) A person commits an assault when
(a) Without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
(b) He attempts or threatens, by an act or gesture, to apply force to another person, if he has, or causes that other person to believe on reasonable grounds that he has, present ability to effect his purpose; or
(c) While openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
It is clear that an assault requires force to be applied without consent. Therefore, subject to some limitations, two people who consent to fight are not committing assaults on one another. However it has been held that a person cannot consent to the infliction of bodily harm. Thus, if two people agree to fight and one suffers bodily harm the other can be charged with Assault Bodily Harm.
It has also been held in one strange case that in a consensual fight where it was clear that kicking was not to be resorted to, then one could be convicted of assault if kicks were used.
There is also a presently rarely used provision of the Code which makes engaging in a “prize fight” (or assisting in almost any capacity) to be a criminal offence. Obviously amateur boxing contests or any boxing contests sanctioned by an athletic board are exempt.
Conclusion ∞
Given the scope & purpose of this paper, it is anticipated that the foregoing material may evoke other questions and require some elaboration. Readers are invited to direct inquiries to the writer for further information. It is hoped that the issues discussed provide the reader with a better understanding of this area of the law.
Raymond J Morhan
Bus. (416) 253-0253
Footnotes
- Note that this link points to the latest edition; I do not know the source of the one most appropriate to the date of this article. [ ↩ ]
ported; date estimated from the wayback machine