Self-defense and the legal aspect in the martial arts
Posted by Larry Foisy on
At each training period we repeat different techniques in order to approach perfection in execution. We train our mind to recognize the attack and prepare an adequate response. Unfortunately, there is one aspect that we do not often address, and that is the legal implications of our actions in real self-defense situations. I will try to demystify some legal concepts of the use of force (defense) in order to help you win your fight without losing your case.
Let's start with some basic definitions and principles related to self-defense. First, note that regardless of the term used (defense or self-defense), the definition remains substantially the same. It is: “any action which tends to deliver or preserve oneself or others from danger in whatever form it presents itself”. The only distinction to be made with self-defense is that it relates to defending oneself whereas defense alone is more vague and involves defending another person or property (eg one's house) . We will deal with self-defense a little later because this notion involves the legal side which will be discussed in the second part of the text.
Before even speaking of defensive action, it is necessary to be aware that each time a defensive action intervenes, a psychological element always dominates it, it is about the danger which threatens. It is above all a question, for the person who is defending himself, of resisting this danger, of dominating it or of escaping from it, on pain of becoming more or less the victim of the element against which he is fighting.
Real-life defense is always a tough competition that can lead to death. Defense requires, in addition to purely physical and technical qualities, mental qualities and actions which will be essential in the decision-making process and which will have a certain impact on the legal implications of the defence.
I won't elaborate much on the physical attributes needed for defense since that's all we're looking for during the warm-up portion of our training period. Or cardio, muscular strength and psychomotricity.
The technical qualities will not be detailed beyond measure either. Note only that the technical qualities refer to all of our punches, kicks, projections, immobilizations, sequences and so on.
The mental qualities are, on the other hand, much more important to consider in the aspect of the defense because they will considerably limit its legal implications. Mental qualities allow a sure judgment of the situation. This means being able to clearly identify whether it is a dangerous situation or not. When the situation is indeed dangerous, the mental qualities then allow an analysis of the facts and a rapid decision-making on the choice of the means to be employed in order to put an end to the dangerous situation. Note that the stronger the mental qualities, the more possible and easier it will be to develop one or more effective strategies (plan A, plan B, etc.).
The qualities of action are the qualities which make it possible to act with coolness, energy, combativeness and mastery. Allow me here to emphasize the fighting spirit which is made up of will and tenacity. You have to want and persist in wanting to triumph. A person without a fighting spirit is defeated in advance.
However, combativeness, which is a noble quality, should in no way be confused with the serious defect of its excess, aggressiveness. Indeed, the fighting spirit that is too pushed and exasperated often turns to provocation and unjustified attack which are contrary to the principles of mastery and respect present in all martial arts.
Even if all the qualities listed above are essential and inseparable, the development of physical qualities remains the basis of defense. It should also be noted that total efficiency does not exist. The effectiveness of a defensive action depends above all on the physical qualities of the individual. A person in good physical shape is less likely to fall into excess and, by the same token, to have legal problems. A physically fit person will learn and adapt more easily, which automatically makes defensive action safer and more decisive.
Finally, in order to be able to improve each of these qualities, it is essential to train in a logical way. You must first start with a generalized physical training. This practice is oriented on muscular and cardiovascular power as well as on the development of motor skills such as balance, speed of execution and synchronism. Then, you need training in pure technique. These are our courses in so-called “traditional” techniques. Subsequently, to exercise our brain and improve our mental and action qualities, we must place ourselves in simulated combat situations in the most real possible contexts. These training sessions in "simulations of real situations" will allow our minds to get used to analyzing and reacting quickly. This will allow us to eliminate our state of panic during a real situation of danger or we will have to defend ourselves.
Let us now deal with the legal aspect of the use of force in a defense situation. In order to be on the same wavelength, we will obviously start by seeing some definitions.
First, let's define the term use of force. We can say that there is use of force from the moment an action is started in the direction of another person. For example, the simple fact of preparing a punch by bringing one's fist backwards without even initiating the forward movement constitutes a use of force towards another person.
Now, the Canadian criminal code definition of self-defense.
Defense of the person (article 34)
34 (1) A person is not guilty of an offense who:
- (a) believes, on reasonable grounds, that force is being used against him or another person or that force is being threatened against him or another person;
- (b) commits the act constituting the offense for the purpose of defending or protecting himself — or defending or protecting another person — against the use or threat of use of force;
- (c) acts reasonably in the circumstances.
In summary, in order to be able to say that we acted in self-defense, it is necessary to meet three very important criteria. First (a), we must believe that we will be attacked or assaulted on reasonable grounds. Reasonable cause is not an intuition, another person, placed in the same circumstances, must come to the same conclusion as you. At this point you can say it is reasonable cause. Then (b) you must use force, assault, your assailant in order to defend yourself or prevent your assailant from using force against you or another person. Finally (c), it is necessary to act in a reasonable way that is, to use only the force which is necessary in order to make stop the aggression. There is substantially the same definition (Section 35(1) of the Criminal Code) allowing us to use force in self-defence in relation to the protection of our property or anything in our custody, e.g. our house, our car or our money. There are, subsequently, several criteria to be assessed in order to ensure that it is indeed self-defense, but I will not count them listed one by one because that would be far too cumbersome. We will talk about it in the examples that will be given later.
Necessary force is defined as reasonable, appropriate and necessary force without unnecessary or gratuitous violence. In other words, we only do what is necessary and no more to stop the aggression. Anything else falls into the realm of excessive force and will only get us in trouble. Note, however, that the necessary force may include the use of lethal or non-lethal weapons. In addition, it is essential to know that when the aggressor is subdued, there is no longer any reason to use force and therefore no excuse for self-defense.
Let us now look at some scenarios in order to illustrate certain cases of self-defense but also, in other circumstances, cases of abuse of force.
First case, let's imagine a young woman of about 20 years old, about five feet five inches (5.5 in) tall and weighing less than one hundred and forty pounds (140 lbs), walking on a path after the sun has set . Now a man, older, taller, bigger and stronger, comes up behind her and grabs her. He takes her to the nearby wood, lays her on the ground and begins to touch her. The young woman then grabs a stone and hits the man with all her might on the head, the man loses consciousness and the young woman takes the opportunity to run away.
This is a typical example of self-defense even though the level of force used by men and women is very different. The man uses only half his strength to control the young woman as she strikes with all her might with a weapon (the stone). It is clear that the young woman would have had no chance with her bare hands against the man. The woman is then justified in using a greater level of force than she is experiencing in order to free herself from the aggressor. However, there would have been an excess of force had the woman continued to hit the man once he was unconscious.
The concept of self-defense being clearer, we will start from a simple case and we will modify it in order to see some variants of cases of self-defense and others of abuse of force. Let's first imagine two men (Pierre and Jean for the purposes of the case) of the same stature with substantially the same experience. Now let's put them in a trouble-prone environment, a bar. If Pierre and Jean leave the bar and engage in a fight to settle a dispute, neither one nor the other will be able to evoke self-defense because there was an agreement prior to the fight between the two men.
However, if Pierre is waiting for Jean at the exit and Jean refuses the fight by raising his open hands towards Pierre. As soon as Pierre begins a move towards Jean, Jean finds himself in a position of self-defense and could use force to prevent Pierre from hurting him. However, Jean would lose his case if he took out a knife and used it against Pierre. Let us remember that Peter and John are of stature seems. Jean would use too great, therefore excessive, force in order to defend himself, which is not permitted.
Let's go back to the case where Peter is waiting for John outside and let's say that John is twice the age of Peter and walks with a cane because he has balance problems. Moreover, Jean knows Pierre well enough to know that he is the type to knock first and argue later. When Jean leaves the bar and Pierre goes towards him insulting him, Jean fears for his life. Could John use his cane and hit Peter before Peter has even started a punch? The answer is yes because Jean is physically impaired and he knows that he could come out seriously injured in a confrontation with Pierre. In these circumstances, Pierre is in self-defense.
In summary, when we have a sincere fear for our physical integrity, we can use force and our learned techniques to defend ourselves and save our skins. What must never be lost sight of is that there is no clear and limpid formula of the concepts of self-defense and legitimate defense in the law. What is reasonable for one person in a given circumstance could perfectly seem disproportionate for another person placed in the same circumstances.
In conclusion, it is important to remember that in any case, when the dangerous situation ceases to exist, we are no longer authorized to use force and we have the obligation to contact the police either so that they come to get the person we have mastered, or so that they come to take our statement on the events and carry out the investigation if necessary.
By Sensei Guy Faucher
DUBOIS, Alain, SCHNEIDER, Philip (2020). Criminal Code and related statutes annotated, LexisNexis, 1260 p.
MINISTRY OF PUBLIC SECURITY (2008). Police intervention, 67 p.
MINISTRY OF PUBLIC SECURITY (2008). Table of the use of force, 57 p.