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I am NO Lawyer - I am NOT Canadian !

That said, here is a basic primer on this subject.

First the general rule applied to self defense in Canadian Law.


http://www.bojuka.ca/self-defense-canadian-law.shtml

SELF DEFENSE AND CANADIAN LAW
When it comes to the issue of self defense and the use of intelligent and reasonable force it is important to understand the law as it applies to you and your situation. In this article we will touch on this subject and how it applies to Canadians.


How much force is "reasonable force"?
This is the most important and most difficult question to answer when it comes to your legal right to defend yourself and your loved ones. The definition of "reasonable force" can differ from one area to another so it is important that your are aware of your legal rights and obligations for where you live. The use of force also differs for civilians and law enforcement officers. The the purpose of this article we will be focussing on the use of force as it applies to civilians.

In general, reasonable force can be defined as the minimal force required to deter or prevent an assault from occuring or being repeated. This would include removing yourself from a potentially violent situation before an assault occurs, verbal de-escalation, posturing, and physically defending oneself. When training in self defense it is important to practise scenarios that will allow you to assess the threat level and act accordingly. If you can leave safely without risking injury to yourself or another, then you must leave. If your are being assaulted or an assault is imminent then you can use only the amount of force necessary to stop the assault. You are not permitted to punish the assailant or seek revenge. You have to ask yourself the question "what would another reasonable person do in the same circumstances".

By training this way you will be able to more appropriately respond to a violent altercation and protect yourself from physical harm and from prosecution by the law. Look at your self defense techniques and ask yourself if the amount of damage being inflicted on the assailant would be deemed reasonable for the type of assault. A smaller, weaker or more volnerable person for example, may reasonably inflict more damage than a larger or stronger person in the same situation. It is important to "injure to degree" according to the threat level.


Self Defense and the Canadian Criminal Code:
Below is how self defense is defined by the Canadian Criminal Code:

Defense of Person

Self-Defence Against Unprovoked Assault
... / Extent of justification.

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if

(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [R.S. c.C-34, s.34.]
Self-Defence In Case Of Aggression.

35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if

(a) he uses the force
(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose. [R.S. c.C-34, s.35.]
Provocation.

36. Provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures. [R.S. c.C-34, s.36.]

Preventing Assault
... / Extent of justification.

37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [R.S. c.C-34, s.37.]


Reference: Departartment of Justice Canada: Criminal Code

end quote.


Here is a more comprehensive study.


http://www.realisticselfdefense.net/blog/index.blog?from=20070915

Canadian Law and Self-defence, by Gary Hughes (part 1 of 3)

The following is designed to be a simplified overview based on judgements passed by the appeals court of Canada. Focus is given to five main topics: justified use of force, excessive force, self-defence against an unprovoked assault, self-defence in a provoked attack, and finally how the Wing Tsun Kung Fu system can be used to defend oneself without breaking the law.
Canadian law allows individuals the right to defend themselves from assault by use of reasonable or proportional force including the use of a weapon. An attempt or threat to apply force also constitutes an assault. To prevent this right from being abused, there are several restrictions on the use and possession of excessively dangerous weapons and the use of excessive force. These rights and restrictions are laid out in the Criminal Code of Canada. A judge and/or jury then interpret these laws by using previous judgements as guidelines.

In Canada, as in the United States, a person charged with a crime is considered to be innocent until proven guilty. The defendant or the defence counsel must try to convince the court that some acts normally considered to be illegal are authorized in certain situations. One of the interesting things in Canadian law is the concept of “mens rea” or guilty intent. “Mens rea” is defined as “a guilty mind; a guilty purpose; a criminal intent. Guilty knowledge and willingness.” Essentially, to be guilty of a crime you must have intended to commit a crime.

If we agree that some acts of force normally considered to be illegal are authorized in certain situations, we need to define when one is justified in using them.

Justified Use of Force
The criminal code of Canada states:
S.25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) As a private person,
(b) As a peace officer or public officer,
(b) In aid of a peace officer or public officer,
(c) Or by virtue of his office,
Is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
(2) … (not applicable, deals with process serving).
(3) Subject to subsections (4) and (5), a person is not justified for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person's protection from death or grievous bodily harm.
(4) A peace officer, and every person lawfully assisting the peace officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if the peace officer is proceeding lawfully to arrest, with or without warrant, the person to be arrested; the offence for which the person is to be arrested is one for which that person may be arrested without warrant; the person to be arrested takes flight to avoid arrest; the peace officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the peace officer, the person lawfully assisting the peace officer or any other person from imminent or future death or grievous bodily harm; and the flight cannot be prevented by reasonable means in a less violent manner.

This section of the criminal code covers three important points regarding justified use of force. First, one must act on reasonable grounds. Second, only use as much force as necessary. Finally, cause death or grievous bodily harm only if on reasonable grounds such force is necessary to protect oneself or someone else from death or grievous bodily harm. These three points are always discussed in cases concerning justified force.

Every situation will be judged individually. Juries are directed to keep in mind two main points. First, the defendant’s perception of danger as it existed at the time. This means if a person perceives his situation to be dire, he is justified in using force. Secondly, the force used cannot be measured with exactitude. In other words, there is no need to stop mid-combat and measure how much force is necessary to use. It does, however, mean that ones actions will be judged based on what an “ordinary and reasonable” person with similar skills would do in a similar situation. This is commonly referred to as “the reasonable man test”. The court seeks to answer two questions; were the actions warranted and were they reasonable?

The courts determine what is “warranted” and “reasonable” by considering four main points. Primarily, was force a necessary response? For example, if someone bumps into you, either accidentally or on purpose, you don’t immediately strike him with everything you’ve got. Reasonable responses in this case could include but are not limited to an apology by either party or attempting to leave the situation. Secondly, was the force reasonable to stop the assault? In essence, force can be met with the same force or a small escalation of force. Here lies one of the most important points. What is a small escalation of force? Exact definitions are difficult to make. In a fight, one of the participants might pull a knife intending to scare the opponent away. This escalation of force may allow the opponent to legally escalate the fight into a life or death situation as the opponent could reasonably interpret this action as an attempt to cause grievous bodily harm or death. Thirdly, was the injury inflicted proportionate to the threat? If someone bumps you, you are not justified in backing over him with your car. However, if you are a small person faced with many larger armed opponents perhaps driving through them is appropriate. Finally, did the “defence” become “revenge”? The last point deals with the continuation of attacks to punish or take revenge after the conflict is over. Obviously the criteria of “reasonable” are grey areas subject to interpretation.

Keep reading the next days, come back for part 2 and 3.



Canadian Law and Self-defence, by Gary Hughes (part 2 of 3)


Excessive Force
The criminal code of Canada states:
26. Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.

In a self-defence situation, the attacks may escalate to the point of homicide, which is the killing of a human being by another. If, as we covered earlier, one is justified in the use of force, it is not culpable homicide. In other words, there is no blame. However, if it is determined that excessive force was used then no longer can justified force be claimed as a defence. This now becomes either murder or manslaughter (i.e. culpable homicide). The difference between murder and manslaughter boils down simply to intent. Keeping this in a self-defence context, it has two ramifications. A jury will decide first whether your fear of death was reasonable and secondly whether or not there was “intent” or “mens rea”. Unfortunately, some courts have fallen prey to movie mentality of martial arts and believe that martial artists should be able to disarm or handily defeat multiple opponents without truly harming them. This is problematic because television and film do not necessarily reflect reality. One may be criminally responsible for any excessive force used, and what is an ordinary blow from an ordinary person may be construed as excessive from a trained individual.

Self Defence
The criminal code of Canada states:
S34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
S35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if
(a) he uses the force
(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and
(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
(b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
(c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.
S36. Provocation includes, for the purposes of sections 34 and 35, provocation by blows, words or gestures.
S37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

These sections of the Canadian criminal code cover four important points regarding self-defence. First, what constitutes self-defence in an unprovoked assault? Second, what constitutes self-defence in a provoked assault (i.e. you started it)? Third, what constitutes provocation? Last, what constitutes prevention of assault?

Generally, when people talk about self-defence they are referring to self-defence in an unprovoked assault. In other words, you’re minding your own business and someone attacks you. To summarize some of the rulings of the appeals court,

• Frenzied mental state is not necessary before defending oneself (i.e. You don’t have to be in a state of fear or panic )
• Retreat is not necessarily required before defending oneself, especially in your own home
• You can strike the first blow if your assailant’s actions warrant it
• Precise force is not necessary.
• Use only necessary force; trained individuals are regarded differently on this point.
• Mistakes can be made but must be reasonable. Trained individuals may be regarded differently on this point.

The last three points when applied to trained individuals can best be summarized by Stan Lee who in his Spiderman comics said “With great power comes great responsibility”. In other words, the right to use force is balanced by the responsibility to act reasonably.

Interestingly, section 35 also covers self-defence in the case of a provoked assault. To paraphrase, if you start a fight and your victim escalated the use of force with deadly intent then you may be justified in using deadly force in self-defence, if you were not trying to kill or “harm” him in the provocation and if you tried to retreat from the fight when the escalation of force occurred. The reverse may also be true; if someone starts a fight with you and you respond either verbally or with an action that puts him in fear of his life, he maybe justified in the use of deadly force as long as he tried to retreat and could not. Section 36, which states provocation can be blows, words, or even gestures, clarifies this further.

Come back tomorrow, to read the third and last part.



Canadian Law and Self-defence, by Gary Hughes (part 3 of 3)


Wing Tsun Kung Fu and the legalities of self-defence
In an unprovoked assault, Wing Tsun Kung Fu provides the practitioner with a realistic approach to self-defence. Before we can examine the Wing Tsun method and it’s legal ramifications we need to define a typical self-defence scenario. First, lets start with some typical suppositions.

• The aggressor of a conflict is typically larger or believes he is more powerful than his chosen target.
• The aggressor is not going to follow any rules or codes of conduct during an altercation.
• For simplicity we will assume that no other participants are involved and that there is enough room and the environment is not too loud.

During the initial phase of a conflict, an aggressor will often attempt to talk his way into a closer more threatening distance. This allows the aggressor to gauge the willingness of his chosen target to play the role of victim and to gain the advantage of position.

When a conflict begins the Wing Tsun practitioner retreats both visibly and audibly. The stance appears to be both natural and non-aggressive. This retreat allows Wing Tsun practitioner to gain the advantage of position without appearing to do so. The hands are held up in front of the body in a non-threatening manner yet the posture in neither meek nor timid. The hands are, in fact, in a ready position to be used in what Wing Tsun practitioners call an aggressive defence. The term means simply that the hands and feet can be used simultaneously for attack and defence. The use of one’s voice is the second component of this “retreat” and is in many ways the most important one. A Wing Tsun practitioner learns to yell in a commanding tone at his aggressor. He may say that he doesn’t want to fight or perhaps simply “Stay away!” The shout acts as a verbal first strike and immediately puts the aggressor on the defensive. The intention here is to surprise or embarrass the attacker and should rob him of his opportunity for the first physical strike. This buys the Wing Tsun practitioner time and possibly space and puts him in the “ready” position.

From this ready position the Wing Tsun practitioner gains the first strike opportunity. Typical Wing Tsun training methods subject the students to high stress levels and a visual overload of attacks. This mentally conditions them to react quickly and cope with highly stressful self-defence situations. This conditioning aids the student to deal with the physical threat before being overloaded with his own adrenalin. In addition, Wing Tsun arms its students with 4 fighting principles, 4 strength principles, and reflex training. With this training even the novice Wing Tsun practitioner can advance like a magnet attracted to his opponent rather than retreating. Because of Wing Tsun’s economy of motion, the altercation will be over too quickly for most onlookers to say with any certainty what actually happened. Therefore, in a successful Wing Tsun self-defence encounter, as the aggressor begins his assault his attack will be stopped while at the same time counter-attacked. If the aggressor attempts to block, the Wing Tsun user will turn each blocked strike into another continuously flowing counterattack. He continues to overwhelm his attacker until the aggressor is either unwilling or unable to continue to attack.

A more advanced Wing Tsun person might be afforded the choice to use soft controls. These are, however, decisions that must be made in a split second based on both training and any other factors that exist at the time of the assault. Therefore, it is important to note that the WT practitioner must be careful to use enough force but not excessive force.

The Wing Tsun person gains several legal advantages. First, he appears unwilling to fight. Although the Wing Tsun practitioner may actually be willing, it is the appearance that is important. This attempts to establish the lack of guilty intent. Secondly, by shouting he also attracts the attention eyewitnesses. Although considered to be the weakest form of evidence, most self-defence cases lack any other corroborating evidence to the initial stages of the fight. Lastly, by retreating the aggressor is also allowed the option of retreat.

A final note, which does not apply specifically to Wing Tsun, is that any assault or attack that the victim can walk away from uninjured is the only way to describe truly successful and effective self-defence regardless of how the legal system works. It is arguably better to be alive in prison than dead.

Bibliography
Black, Henry Campbell. Black’s Law Dictionary. St. Paul: West Publishing Co.1968
Martin. Martin’s Annual Criminal Code. Toronto: Canada Law Book Inc., 1990
Stephan. History of the Criminal Law of England. London: McMillan, 1883
Truscott, Ted. Canadian Law: Self Defence & the Martial Artist. Self published, 1995
Criminal Code of Canada, Government of Canada

end quote.
 

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Discussion Starter · #2 ·

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if you kill someone you better have a good reason to why you did it because chances are your screwed unless say they had a weapon and you shot them they ask questions like ok gun was involed were did you store your gun was it legally stored why was the ammo close was it legally stored ect and was there any other way to defend your self the biggest threat is if you use that on a burgler if say someone breaks in starts beating your family and you shoot them after calling 911 then they like ok your cool
 
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