More on Regulating Canadian MMA – Can City Governments Outlaw Consensual Fighting?

I have spent a lot of time highlighting the Federal Government’s effort to amend the Criminal Code to legalize MMA in Canada, I have also spent time highlighting Provincial obligations to ensure amateur contests do not slip between the cracks, this leaves the last level of government – the Municipal.  Can municipalities outlaw consensual fighting?  Reasons for judgement were released last week by the Alberta Court of Appeal finding that City Bylaws outlawing ‘consensual fighting‘ can in fact fall within Municipal Government powers.

In last week’s case (R. v. Keshane) the Court considered whether an Edmonton bylaw prohibiting “consensual and non-consensual fighting in public and quasi-public places” punishable by a fine of up to $10,000 was lawful.  At issue was whether a City Government had the power to pass such a law by the powers delegated to them by the Province or whether it exceeded their jurisdiction and fell exclusively in the powers of the Federal Government.  The Alberta Court of Appeal held that both branches of Government held this power and upheld the law.  In doing so the Alberta Court of Appeal provided the following reasons:

while s 7 overlaps with the criminal code to the extent it creates an offence for non‑consensual fighting in public places, it also creates offences which are not addressed within the Criminal Code, including the offence of consensual fighting in a public place and fighting in a public place in circumstances which do not create a public disturbance, or where the creation of a public disturbance was not reasonably forseeable…

[28]           The legal effect of s 7 is to prohibit both consensual and non‑consensual fighting in public and quasi‑public places and to enforce that provision by imposition of a penalty…

[39]           We conclude that the dominant purpose of s 7 does not fall within the federal division of powers for the following reasons, some of which also supported my conclusion as to its “ pith and substance”:

a.         in purpose and effect it regulates the conduct and activities of people in public places with a view to promoting the safe, enjoyable and reasonable use of such property for the benefit of all citizens of the City;

 b.         it creates an offence to engage in conduct which does not also amount to criminal conduct, i.e. the overlap with the Criminal Code is not complete;

 c.         the penalty imposed is merely a fine, and conviction does not create a criminal record; most if not all of those convicted would view these consequences as less serious than those flowing from criminal conviction;

 d.       the s 7 offence is found within a group of other offences prohibiting conduct which no one suggests is criminal, but which negatively impacts the use and enjoyment of public places; and,

 e.         its focus is not the harm caused to victims of fighting, or to those involved in consensual fights but rather on those who, indirectly, are affected by street fighting, including neighbors and those using streets and sidewalks.

[41]           We agree with the reviewing judge that the provincial (or municipal) and federal aspects of s 7 are roughly equal in importance, triggering the application of the double aspect doctrine of judicial restraint which applies to uphold the validity of s 7; CWB at para 30; Reference re Securities Act,  2011 SCC 66 (CanLII), 2011 SCC 66 at paras 63‑67.

[42]            It is not possible to determine which aspect of legislative power is dominant in relation to the subject of s 7. It substantially overlaps both domains. The result is that we must apply the double aspect doctrine of judicial restraint to conclude that s 7 falls within the province’s power to legislate and is therefore valid.

From a regulatory perspective, this means all three levels of Government can come into play when addressing the legality of MMA and other combat sports in Canada.

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