Karate and self-defense: what you should likely know
Wow, it has been a long time. I promise to try to make it here more
often. But why come back now? Well, of all things, I recently waded into
an online discussion (usually not a good idea) that wandered into the notions
of the old adage of “one punch, one kill.”
Now, some people still take those types of ideas far too
literally. Have people died from single strikes? Sure, but the odds of it
happening are super slim: there was a competitor in Okinawa some 10 or more
years back who died after receiving a blow to the head. A competitor in Wales died in 199 after collapsing
from a kick to the head. Spanish football fan Francisco José Romero Taboada
took one to the head during a match brawl… and that was all. Boxer Raul Hirales
suffered a similar fate.
And yes, who can forget Ivan Drago’s finishing of Apollo
Creed.
Of course, with the exception of Taboada, these are all
sports-related. Consider, too, though, the “knock-em-out” game that is still
occasionally played in cities around the US (and a couple of instances in
Ontario. Punches are high on the list of Patrick McCarthy’s HAPV and research
on habitual violence from Britain. Knocking someone out from a strike to the
head is possible. If they hit the ground and they head bounces – or worse –
that the damage was caused by something started by the punch, new criminal code
rules may not be very.
But, knocking someone out - or knock out lead to head trauma (which may or may not cause death) is only one of the problems you need to consider. Extracting teeth, breaking bones, dislocating joints, incapacitating limbs (long term) all now fall under the microscope far more than they used to under the old self-defense laws.
The sleepier-minded of the crowd may not have noticed to changes to Criminal Code of Canada made a couple of years back. It was dubbed the “Lucky Moose” amendment. Google it. It changes the frame of how self defense is now viewed. And the changes are, in this writer’s opinion, significant. It goes beyond the vague litmus test of 'reasonable amount of force.' They grey is not all gone, but there are plenty of lighter shades to consider now.
But, knocking someone out - or knock out lead to head trauma (which may or may not cause death) is only one of the problems you need to consider. Extracting teeth, breaking bones, dislocating joints, incapacitating limbs (long term) all now fall under the microscope far more than they used to under the old self-defense laws.
The sleepier-minded of the crowd may not have noticed to changes to Criminal Code of Canada made a couple of years back. It was dubbed the “Lucky Moose” amendment. Google it. It changes the frame of how self defense is now viewed. And the changes are, in this writer’s opinion, significant. It goes beyond the vague litmus test of 'reasonable amount of force.' They grey is not all gone, but there are plenty of lighter shades to consider now.
The old rules said:
34. (1) Every one 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.]
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.]
The new
rules say:
Defence — use or threat of force
Defence — use or threat of force
34. (1) A person
is not guilty of an offence if
o
(a) they believe on reasonable grounds
that force is being used against them or another person or that a threat of
force is being made against them or another person;
o
(b) the act that constitutes the offence
is committed for the purpose of defending or protecting themselves or the other
person from that use or threat of force; and
o
(c) the act committed is reasonable in
the circumstances.
o
(a) the nature of the force or threat;
o
(b) the extent to which the use of force
was imminent and whether there were other means available to respond to the
potential use of force;
o
(c) the person’s role in the incident;
o
(d) whether any party to the incident
used or threatened to use a weapon;
o
(e) the size, age, gender and physical
capabilities of the parties to the incident;
o
(f) the nature, duration and history of
any relationship between the parties to the incident, including any prior use
or threat of force and the nature of that force or threat;
o
(f.1) any history of interaction or
communication between the parties to the incident;
o
(g) the nature and proportionality of the
person’s response to the use or threat of force; and
o
(h) whether the act committed was in
response to a use or threat of force that the person knew was lawful.
Section 35 now deals with defense of property exclusively.
So, what, in my mind, makes this a new ballgame? There are a
number of elements in the Section that are open to interpretation and
individual understanding, as all laws are. If you are of the mindset that it is
better to be judged by 12 (or, in Canada, one or 12) than carried by six, you
might get your wish. As the old adage goes, though, be careful what you wish
for.
What will be different is how the interpretations are applied to trained fighters and martial artists, including RBSD folk. Here’s what I see.
What will be different is how the interpretations are applied to trained fighters and martial artists, including RBSD folk. Here’s what I see.
Reasonable use of
force:
The new law stipulates ‘the act committed is reasonable in the
circumstances.’ Thus, there is still an expectation that reasonable force is used. IN other words, if
you’re punched, you can’t shoot, stab, club or otherwise maim the attacker. I
doubt a judge worth his or her salt would see that as a reasonable act. You may
get away with blocking, punching, otherwise striking or kicking to ward off the
attack and either hopefully convince the attacker to cease and desist or stop it and make like a track star with IBS.
Beating them into submission or unconsciousness? Mebbe not so much. Attacked with a beer bottle or baseball bat? Well, if buddy ends up with a few cuts or a broken bone or two, that may be into the range of being considered reasonable, given the use of a weapon and the likely intent to cause grievous bodily harm or death (no one uses a bat or a broken bottle to cause a “little harm”). If you beat him to death with his own bat or gut him like a fish with his bottle, there better damn well be significant wounds on your person.
Beating them into submission or unconsciousness? Mebbe not so much. Attacked with a beer bottle or baseball bat? Well, if buddy ends up with a few cuts or a broken bone or two, that may be into the range of being considered reasonable, given the use of a weapon and the likely intent to cause grievous bodily harm or death (no one uses a bat or a broken bottle to cause a “little harm”). If you beat him to death with his own bat or gut him like a fish with his bottle, there better damn well be significant wounds on your person.
What will likely get ya is how the elements of the incident are broken
down under investigation and then by interpretation of the code. Call them…
The Factors
While all factors will be viewed in a case when charges are
pending, not all the details may be known when the charge is laid. Nor will all factors be pertinent in either investigation for charges or prosecution. Normally, simple
assaults will not likely warrant a lengthy investigation, but where the
self-defense rule is applied, you can bet someone is going to do their homework
beyond the charge being laid – and it will be the prosecutor and the defense attorney.The Factors
- The nature of the force or
threat
Again, what happened, where, why and how will be explored. Was the threat verbal, was it implied (made a fist and a menacing face) or explicit (took a swing). Were there circumstances (which would float into para c).
Again, what happened, where, why and how will be explored. Was the threat verbal, was it implied (made a fist and a menacing face) or explicit (took a swing). Were there circumstances (which would float into para c).
- The extent to which the use of force was imminent
and whether there were other means available to respond to the potential use of
force
For the first time, other ‘reasonable’ actions may find their way into the fray. Could you have run. Could you have called for help. Could you have done something else to defuse the situation through peaceful means. If there was and you did not choose them nor are you able to offer a reasonable explanation as to why, the slope gets a bit slippery. Which leads us to..
For the first time, other ‘reasonable’ actions may find their way into the fray. Could you have run. Could you have called for help. Could you have done something else to defuse the situation through peaceful means. If there was and you did not choose them nor are you able to offer a reasonable explanation as to why, the slope gets a bit slippery. Which leads us to..
- the person’s role in the incident
I like to refer to this as a the ‘bad monkey’ factor. If there were other options and they were not chosen, this is really where the self-defense claim will begin to fall apart. If escalato was involved, if bravado was a factor, if there was a “come at me, bro” exchange, a staring contest… or any other kind of contest… or hey, maybe you said something like, “I’d like to see you try to punch me. I’ll kick your ass/ choke you out/ insert machsimo line here,” well, you’re pretty much fooked, as the Newfoundlanders say.
As always, consent to a fight followed by ‘loser’s remorse’ will still not allow for a self-defense claim.
I like to refer to this as a the ‘bad monkey’ factor. If there were other options and they were not chosen, this is really where the self-defense claim will begin to fall apart. If escalato was involved, if bravado was a factor, if there was a “come at me, bro” exchange, a staring contest… or any other kind of contest… or hey, maybe you said something like, “I’d like to see you try to punch me. I’ll kick your ass/ choke you out/ insert machsimo line here,” well, you’re pretty much fooked, as the Newfoundlanders say.
As always, consent to a fight followed by ‘loser’s remorse’ will still not allow for a self-defense claim.
- the size, age, gender and physical
capabilities of the parties to the incident
Are we talking David vs Goliath, fat guy vs skinny guy, muscle-bound jerk vs weakling on beach or what? Skill set and martial ability will mostly likely play a factor here. There will be an expectation that someone with training would be able to control their attacks, etc. But, unless the other person is a common visitor to the court system for assault and/ or is a fellow martial artist (style non-specific, so they could be aikido guys or ninjas ;) ), there will be some match comparison on what the ‘abilities’ were overall, esp as to how the fight turned out.
Are we talking David vs Goliath, fat guy vs skinny guy, muscle-bound jerk vs weakling on beach or what? Skill set and martial ability will mostly likely play a factor here. There will be an expectation that someone with training would be able to control their attacks, etc. But, unless the other person is a common visitor to the court system for assault and/ or is a fellow martial artist (style non-specific, so they could be aikido guys or ninjas ;) ), there will be some match comparison on what the ‘abilities’ were overall, esp as to how the fight turned out.
- the nature and proportionality of the
person’s response to the use or threat of force
What you did, how you did it, how many times you did it and why you chose to do it could be brought through a microscope. Sweep, body slam and Ezekiel choke for push-and grab type assault? Umm, really? For BJJ folk, asking why you took a stand up fight to the ground may come into play. For karate guys, collapsing a knee of a guy who tried to punch you might be a hard corner to defend. A kick knockout response to a verbal altercation? Yeh, ok… And, for dirty fighters, if you kick someone when they are down and not defending, that may come back to bite you hard as well. The keyword here, to be matched with reasonable use of force, is proportionality.
What you did, how you did it, how many times you did it and why you chose to do it could be brought through a microscope. Sweep, body slam and Ezekiel choke for push-and grab type assault? Umm, really? For BJJ folk, asking why you took a stand up fight to the ground may come into play. For karate guys, collapsing a knee of a guy who tried to punch you might be a hard corner to defend. A kick knockout response to a verbal altercation? Yeh, ok… And, for dirty fighters, if you kick someone when they are down and not defending, that may come back to bite you hard as well. The keyword here, to be matched with reasonable use of force, is proportionality.
Does this mean it
will be open season on martial artists in court? Likely a big no on that one.
But, there is much less of a grey zone than there was and there are more proofs
for the relcuctant combatant to make. Trained vs untrained could make it acrss the
threshold if case law is established. I can see people being categorized,
though. Based on what the courts see, judges use case law to establish guilt or
innocence. Blame some MMA fighters with crim records for perhaps clouding the
pool a bit for those who study BJJ or crosstrain for competition. Likewise, RBSD
folk may get a rough shake if their curriculum does not include some sort of
proper de-escalation training or tactical avoidance strategies (if you can spot
the danger, why did not you not avoid
the danger).
The Mr Miyagi theory may also play in at some point: “no such thing as a bad student, only a bad teacher.” But, ya gotta remember, your teacher is not in the court system – you are.
This of course, is one guys view. However, since a review of many schools that post the crim code online for their students’ awareness (or, in one case, as a selling point for why you should train with them) shows that they are using the old rules, it shows they aren’t thinking about them yet. Nor are they reconciling what the changes mean for what they teach and how they teach it.
The Mr Miyagi theory may also play in at some point: “no such thing as a bad student, only a bad teacher.” But, ya gotta remember, your teacher is not in the court system – you are.
This of course, is one guys view. However, since a review of many schools that post the crim code online for their students’ awareness (or, in one case, as a selling point for why you should train with them) shows that they are using the old rules, it shows they aren’t thinking about them yet. Nor are they reconciling what the changes mean for what they teach and how they teach it.
If I may offer one
last volley of ideas as the parting notion:
-
Train
diligently
-
Think
smart
BUT
BUT
-
Fight
hard
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