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.
