Legal and Moral Responsibilities (For Lori)

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Rick Wilson

Legal and Moral Responsibilities (For Lori)

Post by Rick Wilson »

Legal and Moral Responsibilities

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Rick Wilson

This section will deal with that actual use of force and what ramifications it may have for you in the aftermath. There are three distinct areas that will be covered Legal Responsibilities and Moral Responsibilities, and what to do after a violent incident occurs.


Legal Responsibilities


As I am based in Canada that will be my focus as to actual laws. If you will be in the USA or another country you should check out their laws first.

I will state my interpretation of the law and then quote the section of the Criminal Code that is applicable. I am not a lawyer, but do interpret law in my daily work. The laws are clear in their intent. However, I cannot say that I am as familiar with courts interpretations. I am often surprised by them.

The issue of provocation will be talked about, therefore here is what the Canadian Criminal Code considers provocation:


"PROVOCATION.
36. Provocation includes, for the purposes of sections 34 and 35 , provocation by blows, words or gestures. [R.S. c.C-34, s.36.]"


Basic Principle:

I think that this is a Basic Principle in most places: You may only use a reasonable amount of force and refrain from using excessive force.

"PREVENTING ASSAULT
... / Extent of justification.
37. (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [R.S. c.C-34, s.37.]"


The law is very clear that everyone has the right to defend themselves or anyone under their protection. However, the law is also clear that you may not use any more force than necessary.


Personal Assault:

This deals specifically with an unprovoked assault. You have done nothing to bring this assault upon yourself. No harsh words, no pushing or shoving and no insults.

There are two situations to consider here:

1) The force used does not cause death or grievous bodily harm:

The basic rules comes into play here, as long as you have not used excessive force, then your defense is justified. In other words you can defend yourself with force.

2) In the course of defending yourself you have caused death or grievous bodily harm.

When is this justified in the eyes of the law? If you believe (and it was a reasonable belief) that the perpetrator intended to cause you death or grievous bodily harm AND you felt there was no other way to prevent that from happening, then you may use an amount of force that causes death or grievous bodily harm.


"SELF-DEFENCE AGAINST UNPROVOKED ASSAULT
... / Extent of justification.
34. (1) Every who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm. [R.S. c.C-34, s.34.]"

Provoked Assault:

I am including this section, not because I think anyone taking this course will ever provoke an attack, but you may be caught up in a situation where someone has provoked you into defending yourself.

This is another reason for everyone to conduct themselves with respect. Your words may provoke an assault, now the person defends themselves. There is an old saying that: "It is the second angry word that starts the fight."

The law reads that if the person doing the provoking of the incident did not intend to cause death or grievous bodily harm, believes this may now happen to him, AND he tries to get away or stop the conflict but the other party continues to come after him then HE CAN USE FORCE TO DEFEND HIMSELF.

So someone assaults you without the intent to cause death or grievous bodily harm, you defend yourself -- when must you stop? As an instructor my belief is "when you are safe". The law seems to follow, in a manner of speaking.


"SELF-DEFENCE IN CASE OF AGGRESSION.
35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if
(a) he uses the force (i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and (ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm; (b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and (c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose. [R.S. c.C-34, s.35.]"

Stepping in to Help Others:


Can you step in when someone else is in trouble? Yes but the restrictions are to use force that is "reasonably necessary" to prevent it. You must also have the intent to detain this person for a peace officer.

"Preventing breach of peace
30. Every one who witnesses a breach of the peace is justified in interfering to prevent the continuance or renewal thereof and may detain any person who commits or is about to join in or to renew the breach of the peace, for the purpose of giving him into the custody of a peace officer, if he uses no more force than is reasonably necessary to prevent the continuance or renewal of the breach of the peace or than is reasonably proportioned to the danger to be apprehended from the continuance or renewal of the breach of the peace.
R.S., c. C-34, s. 30."


Personal Property:


There are two situations, property is being taken, and property is being taken from your person.

Canadian law allows you to prevent a person from taking your property and allows you to take it back. However, you may not strike or cause bodily harm to that person to do so. Now, if you try to take it back and they assault you, read the above sections again.

If they try to take property from your person then it is considered an unprovoked assault.

"DEFENCE OF PERSONAL PROPERTY
... / Assault by trespasser.
38. (1) Every one who is in peaceable possession of a personal property, and every one lawfully assisting him, is justified
(a) in preventing a trespasser from taking it, or (b) in taking it from a trespasser who has taken it,
if he does not strike or cause bodily harm to the trespasser.
(2) Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation. [R.S. c.C-34, s.38.]

DEFENCE WITH CLAIM OF RIGHT
... / Defence without claim of right.
39. (1) Every one who is in peaceable possession of a personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary.
(2) Every one who is in peaceable possession of personal property, but does not claim it as a right or does not act under authority of a person who claims it as of right, is not justified or protected from criminal responsibility for defending his possession against a person who is entitled by law to possession of it. [R.S. c.C-34, s.39.]"


Protecting the Castle:

You may protect you home and you may remove trespassers but you may only use as much force as necessary. If the trespasser then resists it is considered an unprovoked assault.


"DEFENCE OF DWELLING.
40. Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority. [R.S. c.C-34, s.40.]
DEFENCE OF HOUSE OR REAL PROPERTY
... / Assault by trespasser.
41. (1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.
(2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation. [R.S. c.C-34, s.41.]"

Carrying a Weapon:

Can you carry a weapon in Canada?

You cannot carry any prohibited weapon or firearm (unless licensed to do so under the Firearms Act).

You may not conceal any weapon, even if it is a weapon legal to have (unless licensed to do so under the Firearms Act).

It is my opinion that the use of a weapon will cause death or grievous bodily harm so review the above section for when this is legally justified. Because this is my opinion, when someone attacks you with a weapon they have the same level of intent.

"Carrying weapon while attending public meeting
89. (1) Every person commits an offence who, without lawful excuse, carries a weapon, a prohibited device or any ammunition or prohibited ammunition while the person is attending or is on the way to attend a public meeting.

Punishment
(2) Every person who commits an offence under subsection (1) is guilty of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 89; 1995, c. 39, s. 139.

Carrying concealed weapon
90. (1) Every person commits an offence who carries a weapon, a prohibited device or any prohibited ammunition concealed, unless the person is authorized under the Firearms Act to carry it concealed.

Punishment
(2) Every person who commits an offence under subsection (1)
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 90; 1991, c. 28, s. 6, c. 40, ss. 4, 35; 1994, c

"prohibited weapon"
"prohibited weapon" means
(a) a knife that has a blade that opens automatically by gravity or centrifugal force or by hand pressure applied to a button, spring or other device in or attached to the handle of the knife, or
(b) any weapon, other than a firearm, that is prescribed to be a prohibited weapon;"

(Nunchaku, shurikens of any kind, teku (knuckle dusters) are also prohibited in Canada.)


The point that becomes very clear is that you must be reasonable and justified in the amount of force used. There will be more discussion under the section about what to do after a violent encounter.


Moral Responsibilities

If you defended yourself then you have followed all of the above legal responsibilities so now we must look within yourself.

Good people do not like hurting, killing or causing grievous bodily harm. You will go through a period of exhilaration after you defend yourself successfully, but eventually you will wonder if you did the right thing.

One of the best steps is to review this now before anything happens. What are you prepared to do? How far are you prepared to go? Get all the moral questions right up front and deal with them. This will not eliminate the post review that will go on but it may make it easier.

I have heard this used by a number of different people teaching self defense to women. I feel it is an important tool.

1) A man intents to rape and kill you. Are you prepared to take out his eyes and kill him to prevent him from killing you or causing you grievous bodily harm?

2) If you do not have a daughter imagine that you do. You come home to find a man on top of your badly beaten daughter. He clearly intends to rape and kill her. Are you prepared to take out his eyes and kill him to prevent him?

If your answer to question one was no and to question two was yes, then I have to ask why your life is less important than your daughter's? I am sure your daughter would not think it so!


What to do after a violent incident occurs


You have defended yourself. The perpetrator is now lying at your feet and is either dead or no longer a threat. Now what?

The first question is do you leave?

For personal safety I must say YES. You have undergone an unprovoked attack. You have no way to know who may now come along and what dangers you may yet encounter. Often the attack has been planned to happen in an area that lends itself to having Privacy and Control over the intended target. This is not a safe place to be.

If you have the option of leaving, do you report it?

This is a moral question that I leave to each individual. Reporting it may get medical help to the perpetrator if they need it. Reporting it may prevent them from attacking others. Reporting it may place you in danger from the perpetrator's friends.


You cannot leave and are now dealing with the authorities. What now?

From a personal safety stand point and this includes safety from criminal charges and personal litigation you should take the following course.

Advise the peace officer that:

1) You were the subject of an unprovoked assault.
2) You thought the assault might cause you death or grievous bodily injury.
3) That while you want to cooperate fully, you are very traumatized by this event and cannot rationally say anything more at this time.
4) Advise the peace officer that you will give a full statement when you have recovered from this tragic ordeal.
4) Do not say anything else and consult a lawyer.

It is not that you do not want to cooperate. I previously mentioned that after the successful defense you will feel a rush of exhilaration. You will tend to have verbal babble. All that you say must be considered by the police officer, everything that you say!

Example:

You are approached by two men in a parkade. They close in on you telling you what brutal things they intend to do to you and how they intend to dispose of your body. When they grab you, your reactions to the assault cause their death.

When talking to the peace officer, you are pumped that you have survived an attempt to brutally rape and kill you. you go on and on about how you did just what you practiced every night at the dojo. You say how great it feels to have done it (meaning lived through it).

The peace officers dutifully record this.

The authorities conclude that you wanted to try out your dojo death tricks and used excessive force. The families of the deceased sue you for wrongfully causing the death of their loved ones.

It is NOT that you do not what to cooperate, you simply what an accurate account to be given of what happened.


Looking inside:

As stated previously you will not feel good about harming or killing another person no matter how justified it was.

Afterwards you will wonder if you did the right thing or if there was something else you could have done. These are all normal thoughts.

HOWEVER: have them either at home alone, with close friends or family, or (preferably) with a qualified therapists.

NEVER, express these doubts to the authorities. When dealing with the authorities you must only express what happen AT THAT TIME. The threat you felt AT THAT TIME. The response that you felt was your only hope to survive AT THAT TIME.

What is important to the authorities is what happened AT THAT TIME. They must determine if what you did then, thinking what you were then, feeling what you did then, was appropriate. Hindsight should not be relevant.

Trust yourself. You are al good decent people. You did nothing to bring on this attack. You did the only thing you could at that time.


Conclusion


You have the right to defend yourself, do it appropriately.


While we must always consider the legal responsibilities there is a very old saying:


I'd rather be judged by twelve than carried by six!






[This message has been edited by Rick Wilson (edited September 13, 2000).]
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