What does Canadian Law say about using Martial Arts for Self Defense?
While there is no specific clause for martial arts, Canadian law does lay out a fairly straightforward framework for using any kind of force against another person in the name of self defense.
At its most basic, the framework sets up a three-element rule for evaluating whether you are in the right in claiming that you used force against someone in self defense:
- You must prove that you had good reason to believe that you were in danger.
- You must prove that you were acting out of self-protection, not malice (acting with “a defensive purpose”).
- You must have used a reasonable amount of force in proportion to the (real or perceived) threat.
As you can tell, the above criteria, while clear, are all extremely subjective. At the end of the day, it’s going to come down to the jury’s subjective interpretation of whether or not you were acting out of self defense, truly believing you were in danger, and whether or not your actions were “reasonable” in proportion to the threat – i.e. no more than can reasonably be considered necessary under the circumstances.
To judge whether or not the force you used was “reasonable”, some of the factors that could be considered are:
- The kind of threat, and the kind of force (so if you’re using martial arts against an old woman hitting you with her walker, you’re probably guilty. If you’re using martial arts to defend against a knife or gun, you’re probably OK.)
- Whether you had other options except using force (for example, could you have avoided the confrontation by leaving the scene, locking the door, etc.). Note that you are not required by Canadian law to retreat in the face of a threat, as in some U.S. states.
- Whether anyone threatened to, or actually used, a weapon
- Whether you were a bystander or in direct danger
- The size and strength of the opponents
- The previous relationship of the two (or more) of you – has the person you were defending against threatened you in the past, or have you fought physically before?
What the Law says about specific kinds of Self Defense:
If you are Attacked or are Protecting another Person
The three above rules apply. You’re not guilty of any offence if you have good reason to believe that there is a threat to your safety or the safety of someone else, if you can prove you are acting with the intention to defend yourself or another person, and if the force you used can be considered reasonable under the circumstances.
For this section of the law to apply, you must have been unlawfully assaulted, you must not have provoked the attack, the force you used to defend yourself must NOT have been used with the intention to cause death or very serious bodily harm, and the force must be reasonably considered no more than necessary to defend yourself or the other person.
(Source: Canadian Criminal Code, Section 34 and 37)
No requirement to retreat
Please note that in Canadian law, you are permitted to “stand your ground” in a physical confrontation, even if you have some possibility of escaping the situation. This is because whether or not to engage is considered a judgment call that is outside of the situation of the self defense itself. The task of the jury will be to decide whether or not the force you used was reasonable and necessary, not whether the whole act of defense was a good decision on your part. That’s not to say that you shouldn’t escape the situation given the chance! (See tips below.)
(Source: Canadian Criminal Code, Section 34(1))
If you are Attacked, but you Started it.
What happens if you provoked someone else to attack you? Again, what this looks like in the eyes of the law is extremely subjective, but in the Canadian Criminal Code it is laid out as a physical or verbal provocation (not intended to cause serious harm), which escalated and caused you to respond with force in self defense. Specifically, section 36 says that this provocation can be in the form of “blows, words, or gestures”. I’ll let your imagination fill in the rest…
So what happens in the court if you started the problem? Actually the law is pretty kind to you in this matter, if you can again prove that you believed you were in serious harm and that you used only as much force as was necessary to protect yourself. Additionally in this case you would have to prove that whatever you did to provoke the attack was not intended to cause ‘death or grievous bodily harm’. Also, in this case, unlike in the above, you have an obligation to de-escalate the conflict as quickly as possible, that is, as soon as you are out of danger, or ideally before you have to act in self defense at all, you have to “decline further conflict and retreat as far as is feasible”.
(Source: Canadian Criminal Code, Section 35)
If you’re Defending your House or Belongings
Let’s say someone has entered your house without your permission. If you can prove that the house you are defending is yours, or that you have permission from its owner to defend it, and if you have good reason to believe that the person is entering it illegally, then you are not guilty if you use a reasonable amount of force when acting in its defense. However, if the person you’ve just attacked in defence of this house is actually its legal owner, or has legal right to enter it, you are out of luck.
If someone has entered your house with the intention to hurt you, then this is considered an assault, and so the above rules about provoked and unprovoked attacks apply. You’re also allowed to act proactively to prevent someone from breaking into your house and to remove a trespasser from your house (again, using only as much force as necessary).
(Source: Canadian Criminal Code, Section 37)
If you’re Defending your Stuff.
You’re allowed to try to get your stuff back if you believe that this person is taking it illegally. But generally, it’s not good in the eyes of the law to strike or otherwise harm the person that’s stealing it. More force is usually tolerated when you’re protecting a house than when you’re protecting movable objects.
(Source: Canadian Criminal Code, Section 40)
If you want to Play Superman
Let’s say you see someone you don’t know being unfairly attacked, and want to intervene to save them. Or you see someone “breaching the peace”, whether that’s acting in a way that’s disruptive, dangerous, or otherwise. In both of these cases the Canadian Criminal Code allows you to intervene, as long as you don’t use excessive force.
(Source: Canadian Criminal Code, Section 27 & 30)
What if you Kill Someone?
This is going to be a tough one to defend, and the only way that you can avoid being charged for it is if you can prove that it was justified under the circumstances – that is, proving that you literally had no other choice except to respond with lethal force.
Canadian Criminal Code
What you need to know when using Martial arts for Self Defense:
You might be held to Higher Standards.
If you have specialized training in a defensive art, like martial arts, and you use those skills to hurt someone, you’re much more likely to be held accountable than if you were a person with no martial arts training who managed to give their attacker a lucky kick to the stomach and injure them accidentally.
“A martial artist should know how to use force with precision, and choose from a variety of possible defense strategies,” says attorney, author and black-belt judo instructor Carl Brown in his book The Law and Martial Arts.
You need to Train for Self Defense.
There’s more to using martial arts for self defense than throwing down any person that gets in your way. A good martial arts trainer will teach you that preventing a fight is also a part of martial arts training. If you want to be able to use martial arts for self defense, you first need to learn how to control the situation: how to manage your emotions, how to handle the other person, and how to defuse the problem before it ever becomes a physical confrontation. This will help you in using only as much force as is necessary (and will protect you from getting in trouble with the law if it does come to that).
Read more about self defense training here
You need to know how to Control your Ego.
Just because you can use martial arts to protect yourself against someone doesn’t always mean that you should. As the law states, if your ‘defense’ is not considered reasonable under the circumstances, you may be charged with assault.
Remember that there is a difference between “defending yourself” and “fighting back”. The first is legal. The second is not. Use your martial arts training to stop the fight with minimal damage to you and your opponent. Don’t strike back. Block, dodge, and seek to end the confrontation by the least violent means possible (even if the best you can do is pinning your attacker to the ground until the police come).
The Law and Martial Arts By Carl Brown (1998, https://books.google.nl/books/about/The_Law_and_Martial_Arts.html?id=FW6L8mm0PWEC&redir_esc=y)
Tips to Protect yourself from the Law when using Martial Arts for Self Defence:
If you use your martial arts training for self defense and you end up hurting someone in the process, even if they deserved it, you will likely have to defend yourself again by proving that your actions were justified. Here are some actions you can take in the heat of the moment that will protect you later in the court of law:
- Avoid the fight if possible. See the section on ‘ego’ and ‘higher standards’ above. The quality of your training will show not only in how you handle the conflict, but in whether you can control the situation well enough to avoid it entirely. Forget about retaliation or proving how strong you are. Prove instead how much control you have over your own mind and body.
- Don’t brag about your skills or threaten your opponent. If you say “I’m a black belt, I’m going to kick your ass” it’s going to be a lot harder for you to prove that you were using force ONLY with the intention of protecting yourself from harm. In fact, if you say anything, rather go for “I don’t want to fight with you” and make it loud and clear for any witnesses that you are trying to avoid the conflict.
- Try to end the fight as quickly and painlessly as possible. If you do end up in a physical fight, don’t use any more force than is necessary to make the person stop attacking you. Try to disengage as soon as you possibly can. Give them a chance to run away, or give yourself a chance to get away, or put a barrier between yourself and your attacker. Just make sure that you are acting with the goal in mind to end the conflict, not to retaliate against an attack.
Martial Arts and Self Defense Laws for Women
It might seem like the most obvious thing in the world for a woman to use martial arts in protecting herself against an assault, especially by a man. Surely a jury would judge the relative size and strength of the two people (assuming she was attacked by a larger, stronger man) and grant the woman the self defense claim without much controversy.
Unfortunately, there are prejudices in the judicial system which can work against you if you’re a woman who uses martial arts in self defense – namely, that a woman using violence in any form is often punished very harshly. The reality is that men are often (and often subconsciously) threatened by women who outwardly display strength. Women defending themselves against violent strangers are often prosecuted. Even women in abusive relationships (which usually have a trail of evidence) who use some sort of violence to protect themselves against their abuser are often convicted of a crime.
So what should you do as a woman facing an attacker? As suggested above, use your martial arts training to de-escalate the situation and avoid or get out of the physical confrontation as quickly as possible. Don’t use threats and of course, never use excessive violence – only do as much as is necessary to enable you to get away.
(Source: University of Michigan http://umich.edu/~clemency/position.html)
Further Reading and References
- Legislative Summary of Bill C-26: The Citizen’s Arrest and Self-defence Act
- Bill C-26 Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners
- Criminal lawyer Stacy Nichols – What is acceptable under Canadian Law
- In the Eyes of the Law does Military Martial Arts Render you a Deadly Weapon?
- The Law and Martial Arts By Carl Brown 1998
- If you Fight with someone who Attacked you First, How do you prove that you have Justifiable Reason to attack Back?
- Michigan Women’s Justice & Clemency Project – University of Michigan