In the past, we have referred to your ability to protect yourself or others from violent encounters or to use a level of force to protect your home, property, and family from a criminal act. In doing so, there is a standard test that should be applied to ensure that you are justified in doing what you can under those circumstances. We refer to this as the “Three Branch Test”.
The Three Branch Test consists of the following questions. Is it lawful? Is it Reasonable? And is it Necessary?
So, what do we mean by, “is it lawful?”. Essentially, even though legislation, whether it be the charter, constitution, or statutory, states that the action is authorized by law, it does not mean that the application of force is necessarily lawful. This decision of whether the action is lawful is determined by the court process and takes into consideration all the factors impacting the decision behind the force. As confusing as this may be, if there is an investigation into the situation, expect to be involved in a investigative process which will determine the lawfulness of the action which may include potential charges and due process before the courts.
Not to discourage anyone from second guessing an action against a violent encounter, one should be familiar with the laws within their jurisdiction as they apply to rules of engagement when defending oneself, loved ones or their personal property. These ‘systems’ that are in place provide specific guidelines to promote critical thinking under duress in these situations and again, do not make the actions lawful. The consideration of all impact factors associated to the incident including the subject, articulation, and justification are what will assist in determining the lawfulness of the action. This includes and is not limited to the individuals understanding of their reactions through the amygdala hijack, more commonly referred to as the “fight, flight or freeze” response.
I know that this is a lot to take in and honestly, if you are teaching self defense or attending a club with the intent on learning , the individual presenting the material should be a subject matter expect and familiar with the laws within your jurisdiction.
How is the application ‘reasonable’? Again, although we perceive our actions to be reasonable, only the courts can determine through due process, whether they were truly reasonable. This doesn’t mean that you will be required to attend court every time you use force to protect yourself, family, or property, however, if the level of force is questioned, then you can expect the process to be started.
When we determine whether our actions are reasonable, we must first evaluate what we believe our opponents intentions, means and opportunity are. Do they intend to harm us, our loved ones, or our property and to what extent would the harm be expected because of their actions. What are the means that they can carry out this act, are they in possession of a weapon or is it an idle threat. Do they have the opportunity to act on the threat or is the attack conducted through the socials and the subject is outside of our immediate threat radius.
A tool to use to establish ‘reasonable’ is to ensure that the response is proportional to the threat. Proportionality as defined by the Supreme Court of Canada as “harm caused cannot exceed the harm avoided”.
Two additional factors that may assist are 1. A reasonable mistake of fact whereas the application of force when the weapon was later identified as a replica firearm. 2. The amount of force must be considered in the circumstances as they existed at the time of the incident and not measured based on the knowledge gained following the event and thus, is measured objectively. The paraphrase the last two points, the person applying the force used must be able to articulate their perception of the threat without negligence or ignorance of the laws.
Finally, we need to consider the force to be applied or considered is necessary. This doesn’t mean to use as much force as necessary which is often written is legislation, but must include, for that purpose. In layman terms, “for what purpose is the level of force being considered or used, necessary.” So, what is your purpose at the time of this interaction. To escape, arrest or control, disarm, protect your family, or prevent the continuation of an offence against your property.
We must ask ourselves, are there other options available to myself to avoid the use of force? Can I walk away or use strategic communication to de-escalate the situation to avoid the use of force. Am I able to observe and contact the authorities providing information to assist in the apprehension and the arrest of someone committing a criminal offence against my property, for example theft from a vehicle or vandalism towards the property itself. Do I have the time to do either or can I do so without harm coming to myself or someone else?
I know that this seems like a lot to consider in what is sometimes a very short window and if you follow the criteria listed below, you should be able to apply critical thinking to the level of force, if any, that should be used in any given situation.
· You must do whatever is necessary legally to avoid imminent peril or danger.
· There must be no legal or responsible alternative to the application of force chosen.
· Any harm caused must not be greater than the perceived harm directed at you.
The best way to ensure that you have all the proper tools in place, when confronted with a potentially violent act, is to arm yourself with as much knowledge as possible and apply these principles to your training.