The
Iaido Journal Jan 2004
The Legality of Martial Arts Weapons In Canada
by Q. D. Agnew
Martial arts practitioners, particularly those in the weapons
arts, often have concerns about the legality of their weapons. Questions
arise about whether or not it is legal to carry a sword, use nunchaka,
take the bus with a sai in your gym bag and similar matters. The
purpose of this article is to give some guidance on these questions for
practitioners in Canada. In reading this article, please remember:
(a) the answers to these questions are often
situation-specific. This article will give you some general information;
you may still encounter a situation where the answer will be different;
(b) the laws discussed here are specific to Canada.
If you are outside of Canada, the laws which govern you will be different;
(c) having the law on your side will not necessarily keep
you from being stopped by the police, or possibly even charged with an
offence. Even if you are in the right as far as the law is concerned,
you do not want to be arrested, charged and have to go through a trial
to prove that you are innocent. The likelihood of being charged is
greater if you are uncooperative with the police. By and large, they
are simply trying to do their job of protecting the public. If you
are carrying a sword, for example, it is part of their job to determine
whether or not you are a danger to the public, so you may well be stopped;
(d) this article does not deal with firearms, compressed-air
weapons and certain other weapons which are not traditional martial-arts
weapons. These have additional provisions specifically applicable
to them.
The legality of martial arts weapons in Canada is determined
by the Criminal Code and the regulations made under it. This federal
legislation is applicable across Canada, and can be found at http://laws.justice.gc.ca/en/C-46/
or http://www.canlii.org/ca/sta/c-46/.
The Criminal Code has a number of provisions which bear on martial
arts weapons. The most specific are the regulations which prohibit
certain weapons. Under section 91(3), possession of a prohibited
weapon is a criminal offence. Prohibited weapons are defined in s.
84(1) and its regulations. The following martial arts weapons are
prohibited:
(a) a knife with a retractable or folding blade which, by design
or through wear, will open by centrifugal force or gravity, or by a spring
or similar device. This has been interpreted by the courts to include
a butterfly knife;
(b) nunchaku or similar objects made up of hard, non-flexible sticks
linked by a flexible length of chain. This includes objects where
the sticks are replaced by, for example, pipes or other rigid pieces, and
where the chain is replaced by rope, wire or other flexible material;
(c) shuriken or similar objects which are made of a hard, non-flexible
material in an essentially two-dimensional regular geometric form with
one or more sharp edges;
(d) manrikigusari or kusari or similar objects which are made up of
geometrically-shaped hard weights or hand grips linked by rope, chain,
wire or other flexible material;
(e) a push dagger, namely a knife where the blade is perpendicular
to the handle;
(f) any item under 30 cm which looks like another object but which
conceals a blade;
(g) spiked wristbands;
(h) blowguns;
(i) manually-triggered telescoping spring-loaded steel whips;
(j) morning stars or similar items consisting of a ball of metal or
similar heavy material studded with spikes and connected to a handle by
a length of rope, chain, wire or other flexible material;
(k) brass knuckles or similar items.
In addition to these specific items, there are also sections of the
Code which deal with weapons generally. What is a “weapon”, however,
can depend on circumstances. Normally a chair or a beer bottle would
not be considered to be a weapon; however, both can be used as a weapon,
and if a person does so they can be charged with using a weapon.
In s. 2 of the Code, a “weapon” is defined as meaning not only an item
designed to cause death or injury, but also anything which a person actually
uses or intends to use to cause death or injury. It also includes
any item which is designed, used or intended for use to threaten or intimidate.
Thus the beer bottle is not a weapon until a person decides to use it to
threaten, to intimidate, or to hurt someone.
However, that is only the definition of what constitutes a weapon.
Simply possessing a weapon is not a criminal offence by itself (aside from
firearms, prohibited weapons and certain other weapons). We must
therefore look at specific sections of the Code which create the actual
offences.
The first section is s. 88, which makes it a crime to possess
a weapon for a purpose “dangerous to the public peace” or for the purpose
of committing a separate crime. The second part, having a weapon
in order to commit a separate crime, is relatively simple: if you
carry a knife or club in order to rob the local convenience store, that
is a crime even if you do not make it as far as the store. It is
more difficult to determine when a weapon is being carried or possessed
for a purpose “dangerous to the public peace”. By and large, a weapon
carried solely for the purpose of self-defence, for instance, is not being
carried for a purpose dangerous to the public peace. Even this is
subject to restrictions, however: the weapon must be appropriate
to repel the type of attack reasonably expected, and the wielder must be
competent to handle it and use it responsibly. Thus, for example,
carrying a sword around against the possibility of being attacked by ninjas
on the streets of downtown Toronto at noon would likely not qualify.
For the purposes of martial arts weapons specifically, a martial
arts practitioner carrying his or her weapon to or from practice would
presumably not, simply by that fact, be carrying it for a purpose dangerous
to the public peace.
The next section which defines a weapons offence is s. 89, creating
the crime of carrying a weapon to a public meeting. No intention
to use the weapon is required for this to be a crime. For our martial-arts
practitioner in the previous paragraph, carrying a weapon to or from practice,
if they attend a public meeting on the way this section creates at least
the possibility that the practitioner is, by doing so, committing a crime.
One of the most troubling sections is s. 90, dealing with concealed
weapons. It is a crime to carry a concealed weapon. What, exactly,
constitutes concealment is not at all clear. There is some suggestion
that, in order for there to be a crime, the accused must have taken active
steps to conceal the weapon so that it would not be noticed by other persons.
The courts have decided in the past with respect to a similarly-worded
section that the offence requires that the weapon be concealed for an unlawful
purpose in order for it to be a crime; that is, in addition to the weapon
being concealed, the court has to be satisfied that the person carrying
it intended to do something illegal with it. Carrying a sai in your
backpack on the way to practice, therefore, would likely not be an offence
under this section. However, unlike with s. 88 the wording of s.
90 does not include this exception; it has simply been read in by the courts
in the past. This interpretation could therefore change in the future.
These are the major weapons offences which should be of concern
to martial arts practitioners. There are also a variety of related
sections which will not apply to most practitioners, but are included here
out of interest.
Anyone who finds a prohibited weapon commits a crime if they
do not turn it over the police “with reasonable despatch” (s. 105(1)(b)).
Destroying it is not sufficient: s. 106 makes it a crime to destroy
such a weapon without reporting such destruction to the police “with reasonable
despatch”.
It is a crime to import or export a prohibited weapon, under
s. 103, as well as to manufacture or traffic in them, under s. 99.
These are separate offences from mere possession of a prohibited weapon
under s. 91(3), and carry more severe penalties.
Begging, that is asking someone for money, while openly carrying
a weapon is an offence under s. 265(1)(c). Strange as it may seem,
this constitutes an assault and is punishable as such, even if there was
no threat or physical contact. Similarly, deliberately impeding another
person or accosting them while carrying a weapon is an assault, again even
without any threat or physical contact. This section suggests that
martial arts practitioners carrying weapons to or from practice should
take extra care to be considerate of others and not respond to provocation
unless it amounts to self-defence. Actions which, while rude or unpleasant,
would not be a crime if done unarmed can become a crime under this section
if one is carrying a weapon openly.
One would hope that most martial arts practitioners would be
acting courteously in any event. However, the iaido practitioner
on their way home from practice who finds themselves short of bus fare
had best not start asking strangers for money with sword in hand, or even
visible.
For this section, assault by impeding, accosting or begging
while openly carrying a weapon, it is not a defence to show that your “weapon”
was only an imitation, not a real weapon. The section specifically
states that the offence is committed when the impeding, accosting or begging
is done while openly carrying a weapon “or an imitation thereof”.
It should be unnecessary to say, but if the martial arts practitioner
should go beyond carrying the weapon and actually attack someone while
carrying it, they are committing a crime. This assumes, again, that
self-defence is not an issue. Furthermore, by doing so they are committing
a more serious crime, namely assault with a weapon (s. 267), whether or
not they actually use the weapon in committing the assault. In other
words, if our iaidoka attacks someone with his or her fists while carrying
a iaito, merely the fact of carrying the iaito elevates the crime from
simple assault to assault with a weapon. Assault with a weapon is
a much more serious crime, and is punished accordingly.
Finally, if a person assaults someone and wounds them, or maims
or disfigures them, or endangers their life, again assuming we are not
talking about self-defence, they are guilty of aggravated assault, which
is an even more serious crime. This section is particularly significant
to practitioners of weapons arts, as it would seem unlikely that a skilled
practitioner could assault someone with a weapon they have trained with
and not wound them or worse. Again, one would hope that our fellow
martial arts practitioners would not be doing such things in any event.
Please note as well that it is also a crime to attempt to commit
these offences, even if one is unsuccessful. Should our iaidoka attempt
to assault and wound someone but miss, they are still guilty of attempted
aggravated assault. Attempted offences are also crimes, under s.
463 of the Code.
In the unfortunate event that the iaidoka succeeds in causing
the death of their victim, we are into the realm of murder and its subcategories,
and beyond the scope of this article. Suffice it to say that our
iaidoka is in a great deal of trouble.
It should be emphasized that none of these offences apply to,
for example, mistakes made while practising. Kendoka, for instance,
often end practice with a number of bruises from where their partner has
attacked and missed the target, striking instead some unprotected part
of the body. This is not an assault. For it to be a crime,
the attacker would at the very least have to have intended to strike the
“victim” on the unprotected area, rather than simply missing. Furthermore,
when any of us step out to practice, we are assumed to have accepted a
certain level of risk or even injury. This point is discussed in
greater detail below.
A separate question which occasionally arises has to do with
practice or arranged fights between practitioners. These range from
ordinary practices or tournaments such as many arts have, to television
events which bill themselves as “no holds barred” martial arts matches,
to duels.
As noted above, when we practice a martial art, we are accepting
that there is a certain risk of injury, for which we cannot legally complain.
To use the previous example, a kendo practitioner who receives bruises
is simply a normal kendoka. Similarly, someone who plays hockey accepts
that they may be body-checked, and may suffer the normal results of body
checks. There are two primary limitations on this, however.
The first is that we are taken to have consented to only the
“normal” level of risk of the sport or art. What is “normal” depends
on the art, but is in most cases going to be pretty obvious. If a
particular exercise or demonstration is non-contact and one partner deliberately
strikes the other, for example, any resulting injury is not part of the
normal risk associated with that activity and there could accordingly be
criminal charges laid. Please note again that we are not talking
about honest mistakes, and we are not talking about trivial contact between,
for example, two young practitioners fooling around.
The second limitation is that, under Canadian law, you are not
legally capable of consenting to serious bodily harm or death. Even
“no holds barred” contests in Canada do not tend to feature broken bones,
gouged eyes or dead bodies, for exactly this reason. It is not clear
exactly where the line is drawn; a consensual fist-fight involving bruises
or blackened eyes is almost certainly legal; one in which someone is deliberately
maimed for life is almost certainly not.
This answers the question of duels in any event, but there is
also a separate criminal offence (s. 71) of even trying to get someone
to fight a duel. For that matter, the same section makes it a crime
to accept a challenge to fight a duel.
As can be seen, most of the rules for martial arts practitioners
dealing with weapons are simply common sense. Most martial arts weapons
are perfectly legal in Canada, provided that they are used for their intended
purpose. Practitioners carrying such weapons to or from practice
should make an extra effort to be courteous to others, and should understand
if they receive extra attention from passing police officers. Should
you wish to study an art which includes use of a prohibited weapon, it
is likely that all you can do is use a legal substitute: foam rubber
nunchaku may not be the real thing, but they will likely not get you arrested,
either. If you insist on using the real thing, then the answer has
to be the same as if you want to own a machine gun: you need to move
to a country where it is legal, because it is not legal in Canada.
____________________
The author received his LL. B. from the University of Saskatchewan
in 1983 and was admitted to the Saskatchewan bar in 1984. He began
practicing kendo in 1983. He continues both activities to today.
