Archive for August, 2013

If you haven’t heard about the controversial recent fight of Tony Lopez you can visit MiddleEasy who report that “Tony Lopez did the most reprehensible thing one could ever do in mixed martial arts. After securing a rear naked choke on his opponent, Lopez held on to the submission as the referee was trying to separate him. It’s not as if he didn’t feel the ref pushing his body off his opponent. Tony Lopez intentionally held on to the choke and after he felt like he was done punishing his opponent, Tony Lopez hit him in the face.”

MiddleEasy uploaded the following GIF of the incident in which you can judge for yourself how reprehensible the conduct is.  Perhaps more damning than the video, Lopez goes on to admit the intentional nature of his actions with Bloody Elbow quoting him as saying “”…I sink it in, he taps, but I said “it’s a fight”. I’m heated. He hit me. So after the choke, I gave him a little hit. Some payback.

f2h9

So what if a situation like this took place in a sanctioned bout in Canada?  What kinds of repercussions could an athlete be exposed to?

In addition to suspension from the governing athletic commission, criminal charges would not be out of the question.  You need look no further than the aftermath of the McSorley/Brashear altercation or the Bertuzzi/Moore incident to recognize that Canadian law sets limits to consent in sports.  Even when a bout is properly sanctioned by an appropriate athletic commission this does not suspend the assault provisions of the Criminal Code.

Under section 265 of the Criminal Code a person commits an assault when “without the consent of another person, he applies force intentionally to that other person, directly or indirectly“.

While consent is a valid defense to an assault charge the defense has limits.  The Supreme Court of Canada, in R v. Jobiden, confirmed that while individuals can consent to a fight the consent does not extend to “violent forms of force which clearly extend beyond the ordinary norms of conduct .”

A tap out and referee stoppage are two recognized ends to an MMA bout.  When either occurs the consent to contact ends.  If force is “intentionally” applied after either scenario and if the force “clearly extends beyond the ordinary norms of conduct ”  a criminal conviction can be secured.  MMA and combat sports are regulated activities and the application of the Criminal Code does not stop in the ring or cage.  As the below courtroom sketch reminds us, if an athlete crosses the line criminal prosecution remains a reality under Canadian law.

McSorely Brashear Criminal Trial Courtrooom Sketch

Moncton Boxing Commission Logo

Update October 5, 2013 – The City of Moncton has now pulled the Commission’s ability to oversee MMA, Muay Thai and Kickboxing.

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Although the City of Moncton has an established Athletic Commission with the power to regulate and oversee both amateur and professional MMA events, the Commission’s blessing may not be enough to get participants around Canada’s Criminal Code.

When analyzing the legality of MMA in any given jurisdiction in Canada the first stop is section 83 of the Criminal Code which makes the sport illegal by default.  To comply with the section a professional contest must be “held in a province with the permission or under the authority of an athletic board, commission or similar body established by or under the authority of the province’s legislature for the control of sport within the province.

For an amateur MMA event to be legal the event must be held with the permission or with the designation “by the province’s lieutenant governor in council or by any other person or body specified by him or her” in compliance with Section 83(2)or(3) of the Criminal Code.  In other words, there has to be appropriate Provincial legislation creating the regulatory framework for the sport.

So what’s wrong in the case of Moncton?

The Moncton Boxing and Wrestling Commission derives their powers from Moncton Bylaw H-510.  This law creates the Commission and gives them the power to oversee various combat sports including professional and amateur MMA.  The problem, however, is there does not appear to be any Provincial enactment giving the City the power to pass such a law.  In legal terms, getting around the Criminal Code is arguably ‘ultra vires’ the City’s powers.

The ability of local governments to regulate MMA is a tricky subject when Provincial legislation is silent on the point.  Looking at other jurisdictions helps illustrate this.  While it is true that Alberta has a host of municipal commissions, there is a strong argument that they have obtained their power “under the authority of the province’s legislature” through Alberta’s Municipal Government Act which, in addition to the general powers it gives municipalities, strongly implies they have the power to regulate combat sports by the wording of section 535 which reads as follows:

Protection of sporting commissions 
535.1(1) In this section, “commission” means a commission 
established by bylaw for controlling and regulating any of the 
following: 
(a) boxing; 
(b) wrestling; 
(c) full contact karate;

(d) kickboxing; 

(e) any other sport that holds contests where opponents strike 
each other with a hand, foot, knee, elbow or other part of 
the body. 

(2) A commission and its members, officers, employees and any 
volunteers and officials performing duties under the direction of 
any of them are not liable for anything said or done or omitted to 
be done in good faith in the performance or intended performance 
of their functions, duties or powers under this Act or any other 
enactment. 
(3) Subsection (2) is not a defence if the cause of action is 
defamation.

The New Brunswick Provincial law does not contain a similar provision.  At best it appears the City of Moncton can try to rely on the general powers they have through the Municipalities Act or the Moncton Consolidation Act to regulate MMA.  When a city in Saskatchewan tried the same thing the Province was quick to shut down the effort stating the City law would not comply with the Criminal Code.

I have reached out to the Moncton Boxing and Wrestling Commission inviting them to point out any Provincial enactment that gives the City the power to oversee this sport.  As of the writing of this article they have not replied.

Clear Provincial legislation is strongly desired to give certainty to MMA and other combat sports participants.  The Provincial Government should do so and take away this legal ambiguity and uncertainty.  New Brunswick would be well served to either create a province wide commission or to pass the appropriate laws to make it clear that Municipalities indeed have the power to regulate the sport in compliance with section 83 of the Criminal Code.

boxing judge licence application logo

 

 

If you are looking to become a licensed judge or referee for professional boxing in BC, the office of the BC Athletic Commissioner has just announced a three day Boxing Judge and Referee Training Course.

The Course will take place at Dynamic MMA in Richmond BC from September 28-30.  There is limited registration with a course fee of $250 plus GST.

You can find a copy of the application form here: Registration Form BC Boxing Referee Judge Training Course

You can click here to view a brochure with further details.

Canadian Charter

Section 83 of the Criminal Code delegates the regulation of MMA to the Provinces.  This requirement has created a diverse regulatory patchwork for the sport across Canada.

Some Canadian jurisdictions have ‘home licencing requirements‘ – that is, requirements for non-residents to be licensed in their jurisdiction of residency or other jurisdictions prior to being qualified to obtain a licence.  To take two examples, Ontario and Nova Scotia have such regulations on the books.

Section 8(5) of Ontario’s Athletics Control Act Regulation reads as follows:

(5)  A person who is not a resident of Ontario and who applies for a permit to take part in a professional contest or exhibition shall at the time of applying provide evidence satisfactory to the Commissioner that the person is the holder of a current valid licence to take part in professional contests or exhibitions in another jurisdiction. R.R.O. 1990, Reg. 52, s. 8 (5); O. Reg. 197/06, s. 4 (1); O. Reg. 465/10, s. 7 (2).

Section 20(a) of Nova Scotia’s Boxing Authority Regulations has a similar provision which reads as follows:

A boxer from outside Nova Scotia, when submitting an application for a licence, shall submit to the Authority

(a) proof of licence from a recognized licensing agency in the boxer’s jurisdiction;

If applicants don’t have such a licence they can be denied licencing by the Nova Scotia and Ontario commissions.

The difficulty with this requirement, however, is that it discriminates against Canadians who reside in a jurisdiction where MMA is not legal.  A resident from Newfoundland, for example, could not comply with the Nova Scotia requirement as they cannot obtain a licence from a ‘recognized licencing agency‘ in their home Province.

Since MMA is not legal in all of Canada such a licencing requirement seems to fly in the face of Section 6(2) of the Canadian Charter of Rights and Freedoms which provides Canadian citizens and permanent residents with the following protection:

2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

  • (b) to pursue the gaining of a livelihood in any province.

Section 6(3) of the Charter goes on to provide the following limited exception to this guarantee:

(3) The rights specified in subsection (2) are subject to

  • (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence

As has been held by Courts interpreting this provision, section 6(2)(b) protects the right of Canadians to pursue their livelihoods in any province even though they may not be residents.   Given the short career span of combat athletes and the reality that travel across provincial lines is all but a requirement to succeed at the highest levels in the combat sports trade these statutory impediments are significant infringements to the mobility rights of professional combatants.

If a commission denies an applicant a licence based on a ‘home licensing’ provision this improperly denies “the gaining of a livelihood” to Canadians who reside in a jurisdiction where MMA is not legal.  This, on the face of it, is discrimination based “primarily on the basis of province of present residence“.  If MMA is legal in a jurisdiction the Charter guarantees that a person’s residency cannot be a barrier to gaining a livelihood in the sport.  It is difficult to see how such clauses can survive judicial scrutiny and jurisdictions drafting their combat sports laws in Canada would do well to avoid home licencing provisions.

Town of Penhold logo

I have previously highlighted legislative gaps when it comes to the legality of amateur MMA in parts of Canada.  The town of Penhold, Alberta, has recently revised their Combative Sports Bylaw to sensibly address this concern.

The town previously created, pursuant to Bylaw 669-11, an athletic commission which was tasked with overseeing “Regulated Combative Sports Events“, the definition of which expressly excluded amateur events.  On July 15, 2013 the town passed Bylaw No. 699/13 which over-rode this provision and adopted a new definition of regulated combative sports events which includes:

“both amateur and professional events, where designated by the commission includes boxing, mixed martial arts, professional wrestling, full contact karate, muay thai, kick boxing, and other sports that hold contests between opponents involving striking with hands, feet, knees or elbows, grappling, submissions and take downs.”

The Bylaw goes on to give the commission the ability set out the rules for “the holding of bouts and contests“.  Provided the Provincial Government does not play their trump card with respect to combat sports regulation in Alberta, the town of Penhold has now given its commission a proper legal framework to regulate amateur MMA if they choose to do so.  I am happy to share the wording of the full bylaw to anyone who contacts me and requests a copy,

image canadian territories mma law

The City of Yellowknife has a long history of hosting and regulating combat sport events including Mixed Martial Arts.  Despite this history, can the City legally regulate MMA events given the newly amended section 83 of the Criminal Code?

As previously discussed, section 83 makes professional MMA illegal by default in all of Canada unless the contest is “held in a province with the permission or under the authority of an athletic board, commission or similar body established by or under the authority of the province’s legislature for the control of sport within the province.”

At first glance, this very specifically worded limitation appears to only give Canadian Provinces, not Territories, the ability to legalize MMA.  There is a clear legal distinction between the two.  However, looking at section 35 of the Canadian Interpretation Act the definition of Province when used in an enactment “includes Yukon, the Northwest Territories and Nunavut”  and the definition of “legislature” includes”the Lieutenant Governor in Council and the Legislative Assembly of the Northwest Territories, as constituted before September 1, 1905, the Legislature of Yukon, the Commissioner in Council of the Northwest Territories, and the Legislature for Nunavut.

So, after this roundabout exercise it is clear that section 83 does in fact allow the Canadian Territories to legalize MMA if they so choose.

Turning the focus specifically to Yellowknife, the City has passed Bylaw N0. 4396 creating an athletic commission with powers to regulate MMA.  As with Cities in Alberta, Yellowknife purports to obtain the power to create such a commission from general language contained in Provincial / Territorial legislation.  In creating their commission the City of Yellowknife relies on Section 70(1)(h) of the Cities, Towns and Villages act which gives it the authority to “make by-laws for municipal purposes respecting programs, services, infrastructure and facilities provided or operated by or on behalf of the municipal corporation“.  It is unclear whether such a general provision actually gives a local government such as Yellowknife the ability to regulate MMA in compliance with the Criminal Code.

Alberta seems content with such an interpretation although section 535 of Alberta’s Municipal Government Act strongly implies such a power.  The Northwest Territories law does not have a similar provision.  If the Yellowknife Commission’s powers were ever challenged by the government of the Northwest Territories the Commission’s existence would likely be in peril as was demonstrated by Saskatchewan’s recent actions.  If the Territorial government does not want to play their trump card and is ok with the City’s interpretation of their powers then the Commission likely has legal authority to do what it does.

Moving on from this hurdle, both amateur and professional MMA appear to be legal in Yellowknife.   The Commission has statutory powers to oversee all “regulated sports” which are defined as follows:

 professional boxing, professional wrestling, mixed martial arts, full contact karate, kickboxing, muay thai and all sports that hold contests between opponents involving striking with hand, feet, knees or elbows, grappling, submission or take downs.

This language does not limit the Commission to only professional MMA but to all MMA.  Section 6(d) of the Bylaw goes on to adopt “the rules and regulations set by the Nevada State Athletic Commission“.  A copy of these can be found here.  So the short answer is both professional and amateur MMA appear to be legal in Yellowknife under the watch of the local athletic commission so long as the Northwest Territories Government does not override the City’s powers to regulate combat sports.

Chalking this one up to the ‘no surprises here‘ category, the City of Weyburn has pulled the plug on their planned Athletic Commission to regulate MMA in the City,

After it was announced that the City has plans to regulate MMA the Province stepped in saying such a law would exceed the City’s authority.  The City has complied with the Province’s direction pulling the plug on the proposed Bylaw during their August 18, 2013 City Council meeting.

This is a development of little significance as Saskatchewan has now legalized amateur MMA and has plans in place to create a Province wide commission.  Mathew Warren,
Director of Leisure Services for the City of Weyburn, has provide the following statement regarding these developments:

At the August 19, 2013 City Council meeting, the Combative Sports Bylaw was defeated because of the creation of the Provincial Commission, which was announced on August 14, 2013.  The City is happy to hear that the Province of Saskatchewan is in the process of creating a Provincial Commission with the plan to have it operating sometime in 2014 and we are looking forward to working with them for future Mixed Martial Arts event in our community.  

quebec flag

In my ongoing efforts canvassing some of the legal oddities across Canada with respect to MMA regulation today I turn my attention to Quebec.

Quebec has a long history of hosting combat sports events but a peek into their legal framework reveals that the sport of MMA is not actually legal but instead the sport of “mixed boxing” is.  The unique name is a now outdated attempt to get around the old section 83 of the Criminal Code which prohibited professional combat sports outside of boxing.  Looking into the regulations of Mixed Boxing reveals it is a sport which in fact is MMA but with a set of rules unique to Quebec.

Quebec has legalized professional combat sports under their Act Respecting Safety in Sports.  Section 2 of the Act makes it apply specifically to Professional Combat Sports.   Section 55.3 of the Act allows regulations to be created covering a number of topics including establishing “standards concerning the organization and holding of a sports event“.

Further to this provision the Regulation Respecting Combat Sports was passed.  Chapter 11.1 of the Regulation deals with Quebec’s version of MMA, namely ‘mixed boxing” which is defined as  “a combat sport during which contestants of the same sex fight standing or on the mat; when they fight standing, the contestants use kickboxing techniques unless modified in this Chapter; when they fight on the mat, the only permitted submission techniques are those described in this Chapter.”

When you peek into the rules permitted by Chapter 11 it becomes clear that professional MMA in Quebec is in fact a somewhat distint version of the sport with its own peculiar rules.  Below is a breakdown of some of these.

First, MMA in Quebec can take place in a ring or a cage, however the cage has to be “an octagon”.  Promotions that don’t use an octagon will run afoul of this requirement and given the UFC’s intellectual property rights to this design this is certainly an interesting statutory provision.

Another peculiarity arises in section 195.9 which is a knockdown rule.  It sates that “Where a contestant has been knocked down, the referee shall instruct the opponent to retire to the farthest corner, which the referee shall indicate by pointing.”   Does anyone recall this being enforced during any of the UFC events hosted in Quebec?

While recovery time following a groin strike is standard fair in the rules of MMA, Quebec law gives the same grace period for knee strikes with section 195.13 stating “Where a contestant receives a blow to the genitals or to the knee, the referee may interrupt the bout and allow up to 5 minutes for recovery.”  Again, this is a clear rule yet it’s enforcement appears to be inconsistent at best.

Quebec also has their own unique rules regarding judging with a breakdown of criteria distinct from the Unified Rules.  These are set out at section 195.18 and are worth contrasting with judging criteria under the Unified Rules.

Lastly, Quebec law makes certain common MMA techniques illegal.  Section 195.28(12) makes it a foul to hit “an opponent with the bent knee or bent elbow“.  Subsection 20 makes it a foul to grab “an opponent by the throat“.  Interestingly section 195.30 overrides this to make “strangulation” permitted but only when fighting on the mat.  So, no knees, elbows or standing chokes allowed in Quebec!  Section 195.29 goes on to create some restrictions for takedowns which also appear to be unique to Quebec.

Quebec Mixed Boxing is certainly a mixed bag.

Now that BC has a framework in place for both professional and amateur MMA what happens if an unlicensed event is held?  What penalties can be imposed?

There are different options depending on whether the event is amateur or professional.

If an illegal amateur MMA event is hosted (ie – one that does not have the blessing of BC’s Athletic Commissioner) then there is only one option for punishment; a prosecution under section 83 of the Criminal Code for hosting an illegal prizefight.  This section creates a summary offence.  While this is less serious than an indictable offence conviction still comes with a criminal record, a fine of up to $5,000 and jail time of up to 6 months.  Dave Maedel, BC’s Athletic Commissioner, confirms that “any illegal amateur contests would be prosecuted under the Criminal Code of Canada“.

If an illegal pro MMA event is held in BC the above punishment is still an option.  In addition to this, BC’s Athletic Commissioner Act creates a host of offences which can be punished by fines, imprisonment and other administrative penalties.  Here are the details:

Section 37 of the ACA makes it an offence to contravene any of the following sections of the statute:

  • Section 9 (a), (b), (c), or (d) – promoting or participating in event without a licence
  • Section 12 – complying with the terms and conditions imposed by the licence
  • Section 13 – hosting an event without an event permit
  • Section 17 – paying 5% of gross gate receipts to the Commissioner
  • Section 18 – complying with the terms and conditions imposed by an event permit
  • Section 37 (4) – supplying false or misleading information and other obstructive acts

If a person violates any of these sections in the context of a “professional contest” then they are exposed to prosecution for a provincial offence.  Section 38 of the ACC imposes some hefty penalties on conviction including

  • fines for an individual of up to $10,000
  • imprisonment for up to 12 months
  • fines for a corporation of up to $100,000
  • Potential increased fines of up to “3 times the court’s estimation of the amount of monetary benefit acquired or accrued as a result of the commission of the offence

In addition to all of the above the Athletic Commissioner may impose an administrative penalty to anyone who violates “a prescribe provision of the Athletic Commissioner Act or a term or condition of a licence or event permit”.

These potential penalties are up to $10,000 for individuals, $100,000 for corporations with a ceiling of 25% of gross gate receipts for an event.

Now that the sport is regulated within BC’s borders the bottom line is hosting an unlawful event does not pay.  As can be seen from the above, the regulatory framework has been designed with real teeth imposing steep fines for anyone illegally dabbling in the MMA business not to mention the potential of a criminal conviction as well.

FN 590 photo

Yesterday I had the  pleasure of being a guest on UFC Central Radio with Showdown Joe Ferraro.  For those of you visiting this site for the first time welcome!  If you missed the interview you can listen to it here, my segment starts at the 17:00 mark.

A quick shout out to Joe for having me on, thanks for the opportunity and for the kind words about this site!

Here are some quick links to some of the topics covered in the interview.

Saskatchewan Legalizes Amateur MMA and Announces Plans for a Pro Comission

What Bill S-209 Actually Does

BC Legalizes Pro MMA

BC Legalizes Amateur MMA

Why Amateur MMA is Illegal in Ontario

Crimes of Moral Turpitude in Massachusetts 

The legality of Municipal Commissions in Alberta

Saskatchewan Plays the Trump Card over Municipal MMA