DThis 2007 blog entry does not delve into the issue of guns and the right to bear arms. The focus of this entry is on the issue of “self defense” and no more. I am approaching this from the perspective of one who practices and teaches martial arts. It is my opinion that any martial art instructor worth his or her salt has a duty to inform students of the relevant jurisdiction’s laws on self defense. Furthermore, that instructor has a duty to remind students to integrate conflict avoidance into their daily lives. This is just a brief overview of the issue of “self defense.”
Update: The above video showed a recent attack in Idaho in which the apartment dweller defended himself with a firearm against a would be machete attacker. The apartment dweller was not charged as it was properly determined that the use of his gun was self defense. The attacker apparently was charged with attempted murder and sentenced to 15 years in prison.
The topic of self defense is more widely discussed in the US than here in Canada, due to the prevalence of guns and the gun lobby. I have seen a number of changes in the states with regard to the right of self defense. For example, the State of Ohio passed a law several years allowing for carrying of concealed firearms, albeit with a permit from the local authorities and after a background check. The state of Florida recently amended their law on self defense to remove the “duty to retreat” and is now referred to as a “Stand Your Ground” law. Otherwise, a majority of jurisdictions impose a duty to retreat when confronted with a self defense situation. Wikipedia has a fairly good article on this topic. See:
Federal law in Canada also has a “duty to retreat” provision. The following section is from a cut and paste from an online book/paper entitled: “Canadian Attitudes Toward Gun Control: The Real Story” by Gary A. Mauser. Ph.D and H. Taylor Buckner, Ph. D. (see Book)
“Unlike the United States, the federal government is responsible for criminal law and the provinces are generally responsible for enforcement – although most provinces rely upon the RCMP to act as the provincial and local police force. This introduces a further element of national uniformity. Despite disavowals by police officials, the Canadian Criminal Code does include the right of citizens to use deadly force to protect themselves (sections 34, 35, and 37).
In Canada, the key provision in the criminal code is that no one may use “more force than is necessary” and then only when “he believes on reasonable grounds that he can not otherwise preserve himself from death or grievous bodily harm.” In section 35, the code goes on to require that one must show that, “he declined further conflict and quitted or retreated from it (the assault) as far as it was feasible to do so before the necessity of preserving himself … arose.” Moreover, the right to use physical force to defend nonfamily members is more limited than it is in many states, as are a Canadians’ rights to repulse trespassers on one’s own property, or to use force to stop the commission of serious or violent crimes (Sections 24, 40, and 41).
Self defense is severely circumscribed by more conditions than are typically found in the United States. A wide range of self defensive weapons (e.g., Mace, pepper spray, small handguns, tasers and stun guns) are prohibited, ownership is punishable by up to 10 years imprisonment. For all practical purposes, it has been impossible to own a handgun for self protection since 1977. Recent firearms legislation now requires firearms to not only be unloaded when stored in one’s residence but must also be put under lock and key. Judging from news reports, many of those who use a firearm to defend themselves, are charged with one or more criminal violations unsafe storage, careless use of firearm, or possession of a prohibited weapon and then they have to prove in court that the firearm had been used in self defense.
Another important difference between the United States and Canada is enforcement. Anyone who uses a weapon in self defense is likely to be charged in Canada and have to defend themselves in court, even if the attacker is not injured seriously. The charges may be “possession of a prohibited weapon,” or “careless use/storage of a firearm,” rather than “assault” or “attempted murder.” The Crown apparently is determined to discourage people from forcefully defending themselves.”
Since the aforementioned article cited to the Canadian Criminal Code with regard to the right of self defense, here is a helpful link to the relevant statutory sections:
As one can see from the above, the right to self defense is more limited here in Canada than in the US. I have to admit to being very surprised at finding out the severe legal consequences for using a firearm inside of your own home to defend oneself and family (long known as the “castle doctrine”). The issue of “castle doctrine” is fairly well explained this Wikipedia article and there are some useful links embedded in the article:
I guess that the point of this blog entry is that those who are interested in self defense issues owe it to themselves to find out their jurisdiction’s laws on self defense, duty to retreat, and whether there is a castle doctrine defense available. By educating yourselves, you will ensure that whatever self defense actions you undertake will be legally defendable in court. Otherwise, if you violate a jurisdiction’s laws on any of the abovementioned topics, not only will you face serious legal consequences, you will end up with substantial legal bills, even if you “get off.” Lastly, it should be incumbent upon martial arts instructors to keep current with changes in the law in their jurisdiction and pass that information along to their students.
Finally, “ignorance of the law” is not a valid legal defense. That is, to claim that “I didn’t know that I could not do this in a self defense situation” generally won’t fly in court. All the more reason for folks to be aware of the law in the jurisdiction they live in. See