Self-defence: What’s acceptable under Canadian law?

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The assault charges laid recently against a Toronto restaurant owner who fought a man who he accused of being a thief, along with a number of high-profile self-defence cases in the U.S., have led to questions around property rights and self-defence laws in Canada.

Criminal lawyer Howard Cohen adds that there is a “huge misconception” in Canada regarding the use of self-defence, and many people think they don’t have any rights.

The laws around self-defence are a grey area — the criminal code states a property owner can only make a citizens arrest if the alleged wrongdoer is caught in the act. But many people don’t take in to account, “the flexibility and reasonableness of our juries,” a factor that has affected many cases where people have acted to defend themselves or their property, Cohen says.

Stephen Harper introduced legislation last year to try and clarify the self-defence rights of Canadians. It was dubbed the ‘Lucky Moose’ bill, after a case in Toronto where Lucky Moose grocery store owner David Chen and two employees apprehended a thief after he returned to the store.

The three men were charged with kidnapping, carrying a dangerous weapon — a boxcutter— assault, and forcible confinement in the case. The accused thief, meanwhile, pleaded guilty to robbing the store and was sentenced to 30 days in jail.

Prosecutors later dropped the kidnapping and weapons charges against Chen and his two employees, but went ahead with the other charges in which the three men were eventually found not guilty.

The Conservative bill died when Parliament was dissolved for last May’s federal election and now, renamed as bill C-26, is currently in second reading in the House of Commons.

CBC News spoke to Cohen and criminal lawyer Stacy Nichols about different legal scenarios that outline what an individual’s rights are under current Canadian law. Here are some excerpts from the interview:

CBC News: You hear a noise and go downstairs in the middle of the night and find a burglar, and you can’t tell if he’s armed. Legally, what are your options?

“Your dwelling house seems to be the property you’re allowed to protect the most,” Nichols says.

Under Section 40 of the Criminal Code, which deals with the defence of dwellings, Nichols says, “everyone who is in possession of a dwelling house is justified in using as much force as necessary, to prevent any person from forcibly breaking into or entering the dwelling house without lawful authority.”

Cohen echoes Nichols’ sentiments, adding that when it comes to defending themselves, Canadians have the most rights inside their own homes.

“This area is less grey than others. The rule of reasonable force still applies, but most judges will give you the benefit of the doubt,” Cohen says. “… You can use any force you deem necessary to remove the burglar from the house and eliminate the threat to yourself.”

“You could use a significant amount of force. If you knocked them out and rendered them unconscious, you will probably not be charged with assault,” Cohen adds. “But if he was retreating and you hit him in the head with a bat and he was [critically injured], you might have a problem.”

Nichols says the words “as much force as is necessary” are one of the things taken into account by judges.

“It might depend on where the person was, and what they were doing. A judge would look at what degree of force was used and where you struck the person,” Cohen says.

“There’s a ton of case law out there where people have been charged in these types of situations,” Nichols adds, referring to situations where an intruder has entered and a dwelling occupant has used lethal force.

“Generally they’re treated very, very leniently, or the charges are dropped altogether,” she says.

Cohen says the judge’s decision revolves around the specifics of the individual situation.

“Every scenario in criminal law tends to be very unique, so that’s a judge’s job is to sift through the facts and make a determination based on them, and all kinds of factors play into it,” Cohen says.

CBC News: You own a store and someone has come in late at night to rob it. Is it legal to use force to stop them?

“What is allowed is what’s called a citizens arrest,” Nichols says.

“Generally the term ‘as much force as reasonably necessary,’ is again applied to this situation.”

Cohen adds that as in the self-defence scenario, the judge’s decision about the amount of force that was necessary in a given situation goes on a case-by-case basis.

“If you had a reasonable belief this person will hurt you, then you can justify killing them,” he says, but adds you would have to be in a situation where “if you don’t do something you’re going to be hurt or killed.”

Cohen says the courts look closely at a situation to see whether the person claiming self-defence has gone overboard.

“The crown attorney still has to show the force was unreasonable,” he says.

“The criminal code gives Canadians a little more self-defence posture than most people believe is the case, because some people look at some of these situations [like David Chen] that have factors outside of self-defence,” Cohen says.

CBC News: Someone has just stolen something that belongs to you and is running down the street. Can you chase and tackle them to get your stuff back?

“You’re allowed to try and get your belongings back,” Nichols says, but under Section 38 of the criminal code, “you can’t strike or cause bodily harm to the person that’s stealing your stuff.”

Cohen concurs with Nichols, saying, “if you see someone committing an indictable offence you can make a citizens arrest using reasonable force.”

“You can pursue that person, but you’re liable much like a police officer doing an arrest,” he said.

CBC News: Someone is simply trespassing. Do we have rights to physically remove someone from our property?

Cohen says like security guards, if you’re going to arrest someone you have to hold the alleged perpetrator for police.

“You would have to use reasonable force to detain, but I would think [in terms of trespassing] you would be judged much more closely on what that force was,” he said.

CBC News: If we ever fear our family is in danger in public, do we have the right to defend them, even if the threat is a perceived one?

Nichols says this is the greyest area of the law, but, “unless the person was actually taking some sort of action, or was using some kind of assaultive force, you wouldn’t be justified in doing too much.”

Cohen says if a person reasonably believes a potential threat is imminent, and a judge agrees with the reasoning, then they would likely not be penalized for their actions.

“It’s more difficult for Canadians to understand because it seems more people are involved in this type of situation in the United States,” he said.

The so-called perceived threat and the level of response is part of the practical reality that surrounds the law in these situations, Cohen says.

“There’s no necessity to retreat, as depending on the circumstances, it [defending yourself] could have been the right thing to do.”

It comes down to whether the amount of force used could be considered reasonable, given the situation. Cohen says, for example, “if you were getting out of your car and some young kid came up to you and started bugging you for money, and you didn’t give it to him and he became aggressive, the law wouldn’t support you if you beat them senseless.”

CBC News: Under what circumstances in Canada is the use of lethal force allowed?

Again, Nichols says the decision is in the judge’s hands, and is made on a case-by-case basis.

“It all comes back to what is reasonable in the circumstance,” she says. “A judge would have to find you had no other choice.”

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Be Safe..


There Is Very Little Information On Early Development Of Martial Arts..

. Most accounts cite China as having a significant influence on its initial rise, however, it is clearly Okinawa that spawned what we know today as karate. 

Okinawa had always experienced problems between rival kingdoms, but in 1429, the kingdoms were united and in order to maintain this unity, a decree was issued which banned possession of all weapons. This seemed to work fairly well for almost 200 years, however, in 1609, Okinawa was, without much resistence, conquered by the rulers of the Satsuma Domain of Kyushu. Of course, there was no incentive for the new rulers to permit the Okinawans to own weapons and they went even further by forcing them to check out their farming implements (which could double as weapons) each morning and return them each evening.

Without weapons to defend themselves and their families, the Okinawans began to develop the art of empty-handed combat in earnest. It was taught and trained in secret through the beginning of the eighteenth century. Much of the training was done at night while the oppressors of the Okinawan people slept and therefore, the practioners trained in the sleeping garments (the predecessor to the modern karate “gi”).

Over the years the prohibition against karate training began to diminish and legends began to develop. Although there are too many to describe in this brief history, the most notable would definitely include Sokon Matsumura (aka Bushi Matsumura) who taught many great instructors including Azato and Itosu. These two gentlemen became the instructors of Gichin Funakoshi, the founder of Shotokan.

Gichin Funakoshi..

Gichin-Funakoshi-Sensei

Gichin Funakoshi was born premature and frail and was given to his maternal grandparents to raise. While attending primary school, he became friends with the son of Yasutsune Azato and shortly thereafter, began receiving karate instruction from the greater master. According to Funakoshi, after he had trained a couple of years, he realized that his health had improved tremendously and that he was no longer frail. It was at this time, he began to contemplate making Karate-do “a way of life”.

Gichin Funakoshi became a school teacher, but continued to train at the house of Master Azato and also under a number of other great instructors. At the time, there were not many formal “schools” of karate and many karateka sought and received instruction from a number of great masters. These masters also shared information amongst themselves, often not seeing themselves in competition with each other, but as kindred spirits with the same love of martial arts.

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It is also during the early years of Gichin Funakoshi that great changes swept through Okinawa and mainland Japan. The government actively sought to develop a stronger sense of nationalism and militarism and martial arts was definitely a major player in nationalist mores. In 1902, Funakoshi performed the first formal recorded demonstration of karate. To Funakoshis knowledge, this was the first official demonstration of karate outside of Okinawa. As a result of this and other demonstrations throughout mainland Japan, karate not only earned the approval of the Ministry of Education and introduced into public school curriculums, but it also became an institution in Japanese youth organizations, the military, colleges, commercial businesses, and with the general public. Funakoshi was extensively sought after as an instructor and found himself permanently relocating to mainland Japan to pursue instruction of karate to the Japanese people. His students initiated the building of the first public karate dojo (training hall) which opened in 1939 and which was called the “Shoto-kan” (using the pen name of Funakoshi – “Shoto” and “kan” for hall). Master Funakoshi always emphasized the spiritual aspects of karate, such as courage, courtesy, integrity, humility, and self control. Karate became known as the martial art of the true gentleman and gained nationwide popularity among university students. Master Funakoshi was not only a genius in martial arts, but also a renowned literary and science talent.

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The Way Is In The Training..