Well, it’s been almost a month and I can hear our lead instructor, Jonathan Fader, shouting “Do Something!” repeatedly in my mind. So it’s time for the next installment of the “The Digging Deeper Series: Musings of a humble old yellow belt.” I think I’m getting better at writing things down, as the previous post took 3 months to start. I know, I know, I know… it is a very weak measure of achievement, but when you’re in your mid 40s all successes get to be celebrated. Ya know, stuff like getting out of bed without a knee injury, your teenage kids acknowledging your existence without receiving money, or family movie night is something that I picked.
If you recall from my last post, the purpose of this series is to develop a better understanding of the issues that connect us to Krav Maga and self-defence as my novice training moves along. In Part 1, I discussed where ethics and UTKM self-defence concepts would intersect to establish a reasonable justification to act in a self-defence situation. I also outlined that, from my perspective, we have a personal responsibility to build our capability to apply aggression in conjunction with the development of our ability to apply situational awareness, while managing the four stages of self-defence. When facing a hypothetical self-defence scenario we have made a conscious decision to commit to a series of actions so that we can remain safe. However, as my training progresses, I know that the anticipated series of actions in my head when engaged in a real self-defence scenario will deviate from expectations, particularly the application of the use of force. So for Part II of the Digging Deeper Series, I will take a look into the concept of the use of force, possible consequences, and our responsibilities.
By doing an Internet topic search on the subject of “use of force,” I learned that the concept of the use of force is not an arbitrary threshold but more of a continuum of accepted responses, outlined in various agency “use of force” doctrines. A common thread to these doctrines was a baseline statement that the use of force is the “appropriate amount of effort required to compel compliance by an unwilling subject while trying to ensure ethical concerns like abuse of power are addressed.” Simple, yet incredibly complex and highlighted in the UTKM blog’s five part “Use of Force ” series. If you haven’t gone through the series, I encourage you to do so, as it goes from simple to complex in the matter of heartbeat. For the sake of this post, I will list below some of the series’ key takeaways that strike me as important regarding the complexities of the use of force:
- There is a high level self-responsibility in the of understanding when to use force and to what degree;
- The individual’s decision on “when” and their delivery of “what” will undergo influence from an endless stream of differing opinions and personal biases;
- Training is the key to upholding our responsibility in the use of force while protecting ourselves from the immediate threat and any legacy interpretations of the law.
As a novice Kravist, when studying the confusing nature of the subject “use of force,” I couldn’t help but notice that, while I feel that my mind comprehends its complexity, it does so in terms of understanding the consequences; this remains for me for the most part theoretical. Social contracts are quirky things, people don’t seem to mind that we are learning self-defence but most likely would not publicly support how we would do it. Remember, in Part I established the justification to act, but we also need to build a reasonable justification for our chosen actions. To help build this understanding, I reviewed the language of Bill C-26: “Reforms to Self-Defence and Defence of Property” which came into force on March 11, 2013 (www.justice.gc.ca).
The executive summary highlights the following items regarding self-defence of the person(s).
For defence of the person, there are three core elements:
- A reasonable perception of force or a threat of force against a person (subjective perception of the accused, objectively verified);
- A defensive purpose associated with the accused’s actions (accused’s subjective state of mind); and
- The accused’s actions must be reasonable in the circumstances (objective assessment).
After reading this section, I realize how difficult it is to develop a common understanding of what the use of force actually means. What I found intriguing is that this reform also includes a non-exhaustive list of factors applicable to the determination of whether the accused’s actions in their use of force were reasonable given the circumstances (www.justice.gc.ca). The key word that jumps out is “reasonable” and the question that keeps coming to my mind is “reasonable to whom?” The term reasonable will mean different things for people who practice the law, who uphold the law, and those who are protected by the law. So once again, we have to dig a little deeper… see what I did there… I know… I can feel the eye roll… but I can’t resist old man/dad jokes, lol!
The Justice of Canada website provides an outline of the reforms to Bill C-26 titled “ SELF-DEFENCE– DETAILED EXAMINATION OF NEW SECTION 34 OF THE CRIMINAL CODE” (www.justice.gc.ca) Warning! What you are about to read is reeeeeeaaaallllly long, so if you don’t spend 8-12 hours on a computer per day like an administrator, this will feel like your brain went to Warrior Class after taking a year off. Don’t quit on me… read it to the end!
Bill C-26 (S.C. 2012 c. 9) Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners highlights the following items:
- 34.(1) A person is not guilty of an offence if
- 34.(1)(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;
- 34(1)(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;
- 34(1)(c) the act committed is reasonable in the circumstances.
- 34(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
- 34(2)(a) the nature of the force or threat;
- 34(2)(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;
- 34(2)(c) the person’s role in the incident;
- 34(2)(d) whether any party to the incident used or threatened to use a weapon;
- (Ok… 30 second break… now it’s time to spar… uggghh… vomit in mouth… keep going!)
- 34(2)(e) the size, age, gender and physical capabilities of the parties to the incident;
- 34(2)(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;
- 34(2)(f.1) any history of interaction or communication between the parties to the incident;
- 34(2)(g) the nature and proportionality of the person’s response to the use or threat of force; and
- 34(2)(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
- 34(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
Ding! Round is over….helmets off, line up and try not pass out from exhaustion.
Okay… pop quiz hotshot! (l loved the movie Speed!) Can you summarize this outline of “how to be not guilty in the self-defence of the person” in 30 seconds? While under duress? In the dark? While facing multiple attackers?
Ummmmm… no… and if you’re anything like me, you’re probably wondering “what was the middle part again?” We often hear in our training sessions that the use of force is complicated, our review of the reforms outlined above illustrates that the terms for being found “not guilty” are very complicated. My interpretation of the reforms is that, even if I believe that my self-defence actions would meet this threshold, the core elements on the defence of the person include both a subjective perception and an objective verification. Therefore my subjective bias may or may not be congruent with an objective verification, such as camera footage, an expert witness, or accepted testimony. Keep in mind, though, that an objective verification still needs to be developed by a subjective person. It’s no wonder that any use of force incident goes from simple to complex in a period of time that is probably faster than the actual incident itself. Because these “core elements of the defence of the person” necessitate both objective and subjective verification, which opens a whole host of possible parallel outcomes. I ask myself, “do I really want a subjective verification completed by a person who does not hold the same value set as I do?” Quite frankly, no.
As a student of self-defence, this made me realize that, while the complexity of a task has become infinitely greater, my responsibility has become that much more simple: I keep training, training, and training some more. My duty to my training is to keep refining my nervous system so that it can handle duress and ensure that if I do confront a use of force decision it is a measured and precise use of aggression vs a shotgun blast with the hope of just not getting stabbed. As we progress in our training we must remember that what once felt violent no longer carries that same visceral feeling, because we have been exposed to simulations of violence and threats (as best as we can) and have practiced responding to it. The bridge between our decision to act in hypothetical scenarios and our actions within real scenarios is the development of our two best skills: Situational Awareness and the ability to recognize and leverage the four stages of self-defence. Essentially, the more we train the better we get at simply not being in the situation, and we understand that the use of force is a tool, one that we most often refine but least often use. As we develop precision in our capabilities of aggression, we must also expand our capability of focused restraint.
So there you have it, a framework of reasonable action added to the justification for action in a self-defence scenario. Remember, though it is complicated, because our laws have a tested definition and are subject to the variability of perceived social contracts, keeping ourselves out of the situation (using the two aforementioned skills) is essential, but under attack you only get the one chance to use aggression, so do it “right” the first time.
Written by: Ted E. – UTKM Yellow Belt
For other parts of this series click the links: Part 1