MARTIN: The self-defence catch-22 — survive the attack, risk the criminal charges

Zach Martin is a small business owner in Hamilton, Ontario, with a background in mechanical engineering. He has a longstanding interest in self-defence law, weapons policy, and public safety, and previously founded and operated a Canadian gun shop.Ontario’s recent call to legalize pepper spray highlights a contradiction. Canadian self-defence law allows people to use force to defend themselves. But other laws make it a crime, or legally precarious, to possess the tools that would let them do so effectively.A few years ago in Toronto, Chelsey Arkarakas was being beaten and choked by her ex-boyfriend, who was twice her weight. After a long struggle, she got hold of a knife and stabbed him, ending the attack. Investigators eventually concluded she had acted lawfully in self-defence under section 34 of the Criminal Code.Chelsey survived because a knife was available at the critical moment. However, if a woman like Chelsey routinely carried a pocket knife for self-defence, she could risk charges under Criminal Code section 88 for possessing a weapon for a “dangerous purpose.” Carry it in a purse or pocket, and it may also trigger a “concealed weapon” charge under section 90. These laws create a catch-22: while it is potentially lawful to use a tool for self-defence, it is legally precarious to have the item for that purpose in the first place.People concerned for their safety are often given this folk advice: carry something with an innocent explanation, like a utility knife, a walking stick, or “dog spray,” and never admit it is meant for self-defence against another person. But this legal workaround is far from an ideal solution..Because law-conscious people can’t use pepper spray or other purpose-built defensive tools, a perverse result is that they may end up using more injurious force than necessary. Chelsey was able to stop the attack with a knife, but a less-lethal defensive tool might also have worked with less risk of fatal injury.There’s also a problem of fairness. For a fit young man, empty-hand self-defence might be a realistic proposition. For many others, it plainly is not. Someone who is elderly, pregnant, disabled, or smaller than an attacker is clearly disadvantaged.Canadian self-defence law already recognizes this reality by instructing courts to consider factors such as the relative size, age, gender, and physical capabilities of the parties. But when it comes to self-defence, our weapons laws do the opposite: they require the vulnerable to remain vulnerable.Fairness sometimes requires giving the disadvantaged a boost. Self-defence tools such as pepper spray help vulnerable people narrow the physical gap between themselves and a stronger attacker.Common advice is to call for help from bystanders or the police. But when violence appears, victims are often forced to respond alone. There may be no bystanders nearby, and police cannot appear instantly. And some people’s circumstances require them to work night shifts, take public transit, or live in a high-crime area, so simply avoiding danger is not practical advice either..Allowing defensive tools like pepper spray does not mean embracing a free-for-all. Parliament can impose age limits and product standards, and set clear rules for how such tools may be lawfully carried and used.Nor should we pretend the current laws restrain criminal or reckless individuals. They already carry and use pepper spray and other weapons. The laws against possession mainly affect people who follow the rules — the very people we should be least worried about if such tools were allowed.Ontario is right to press this issue: Ottawa should remove pepper spray from Canada’s prohibited-weapons list. But Ottawa should also reform the broader legal framework that treats peaceful possession of tools for self-defence as inherently criminal.People sometimes have no choice but to defend themselves by force. The law should not punish them for being prepared.Zach Martin is a small business owner in Hamilton, Ontario, with a background in mechanical engineering. He has a longstanding interest in self-defence law, weapons policy, and public safety, and previously founded and operated a Canadian gun shop.

MARTIN: The self-defence catch-22 — survive the attack, risk the criminal charges

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