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Let's talk about 'Self-Defence'!

One of the things that you should familiarize yourself with when entering the field of 'self-defence' is the legal application of the term and the limitations within the application. In Canada, Section 34 of the Criminal Code of Canada sets out the 'facts in issue' for 'self-defence;

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

I put "provoked" in bold as we will discuss this further and it plays a large part in the legal justification for protecting or defending oneself against the "unlawful assault". But what is an "unlawful assault"? The definition is once again found within the Criminal Code of Canada;

Section 266 sets out the offence of assault. This is the lowest form of basic assault often referred to as "assault simpliciter". Other variants of assault are found at sections 267(a), 267(b) and 268, which set out the offences of assault with a weapon, causing bodily harm, and aggravated assault respectively. The term "assault" is defined earlier in the Code at section 265. This is one of the most commonly charged offences, and is interpreted broadly. Simply put, an assault is any unwanted application of force (or even threat thereof) without consent. This can include strikes, pushes, punches or kicks. However, it also includes grabbing, holding, spitting or more minor forms of contact such as grabbing an item from another person's hand (indirect assault).

So again, you are justified in repelling force by force when someone is assaulting you. You must however cease the application of force once you have successfully defended yourself and the level of force used must be no more than that which is directed towards you.

When considering whether the force applied was 'self-defence', there are several factors that will contribute to the assessment and again, legal justification;

a) the nature of the force which has identified in the paragraph above for the various levels of assault including sexual assault

b) the extent of which the use of force was imminent and whether there were other means available, for example, could you have removed yourself from the incident and/or dis-engaged and provided information to the proper authorities

c) what was your role in the incident? I'll get to provocation shortly...

d) whether a weapon was used or threatened to be used

e) the size, age, gender and abilities of all parties involved in the incident; where you trained? Are you facing more than one opponent?

f) what, if any, was the relationship between all parties involved, where there any previous interactions or communication?

g) the nature and proportionality to your response to the unlawful assault and,

h) whether the act committed was in response to a use or threat of force that the person knew was lawful, for example you committed an offence and were legally being arrested

When assessing the factors above, provocation is considered and is defined as "provocation by blows, words or gestures". When instructing younger persons in pre-secondary and secondary institutes, I reinforce that the use of socials and personally messaging to 'cyber-bully' an individual is a means of provocation and that those words will leave a 'digital fingerprint' that can be used against them.

Another example of provocation would and could be erratic driving, creating a 'road-rage' type situation. Again, keeping in mind that many now operate their vehicles with 'dash-cams' and will use their cell phones to document such an incident. It is important to remember when looking at provocation that every person has the potential to become violent, the only thing that is questionable is, what will it take to bring that person to their breaking point?

So to summarize, when determining whether you are in a position to legally defend yourself, ask if you are being unlawfully assaulted; have you done anything to provoke the attack; and have you made every attempt to remove yourself from the situation and/or to de-escalate the use of force. If you had answered 'yes' to these questions and have applied only enough force to defend yourself and your loved ones, you should be legally safe. I say 'should', as the proper authorities, if called, will still need to conduct a thorough investigation to determined what had happened and paint a complete picture, as there are two sides to a story.

In conclusion, the best defence is avoidance or to quote Bruce Lee, "the art of fighting without fighting!"

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