Archive for the ‘Bill S-209’ Category

Last year I highlighted BC’s position that professional kickboxing and muay thai events are not allowed under the updated Section 83 of the Criminal Code.  The Senator that drafted the law responded disagreeing with the Province’s narrow interpretation of the law.

Senator Runciman has since taken a stronger stance stating that BC’s interpretation of the law he wrote “defies logic“.  The Senator, in a letter written earlier this year to BC’s Ministry of Community, Sport and Cultural Development states that “It defies logic that some martial arts competitions were deemed legal under the previous boxing-only definition, but are now considered illegal under a definition that permits mixed martial arts“.

This is an important development because if a Court is ever asked to interpret s. 83 of the Criminal Code in deciding the scope of provincial powers to regulate professional “mixed martial arts”, the presiding judge can look to the intent of the law.

Ideally this will prompt the BC Government to revisit their position and consider legalizing professional kickboxing in the Province.  Additionally, this should be persuasive in influencing other Provinces in deciding the scope of their powers in legalizing professional combat sports.  Not all Provinces agree with BC’s position and, given the Senator’s views, a broad interpretation of what “mixed martial arts” entails is likely warranted.

I have obtained a full copy of Senator Runciman’s letter to the BC Government which can be found here:

Senator Runciman Letter to David Galbraith

Senator Runciman Image

Earlier this month I highlighted BC’s stance that professional kickboxing and muay thai events are not allowed under the updated Section 83 of the Criminal Code.

BC interprets the ability of the Province to regulate pro MMA as excluding the sport’s component parts.  If this interpretation is correct than all of the competent sports that make up MMA (except for boxing) such as Brazilain Jiu Jitsu, Kickboxing, Muay Thai, and Wrestling are illegal professionally across Canada.  This restrictive interpretation seems inconsistent with Bill S-209’s intent.   The purpose of Bill S-209 was to allow individual Provinces to decide which combat sports would be legal within their respective borders.

If BC’s interpretation is ever challenged in Court the presiding judge will need to look into the ‘legislative intent‘ behind Bill S-209.  What better way to find this out than to ask the man who wrote the law? I reached out to Senator Bob Runciman, the individual who drafted Bill S-209, and asked him if BC’s interpretation is consistent with the law’s intent.  Here is the exchange:

________________________________________________________________

Senator I am a lawyer in BC and keep track of regulatory developments in Canadian combat sports at my Canadian MMALaw Blog.

As you may be aware, BC has taken the position that while Bill S-209 has allowed Provinces to legalize pro MMA and Boxing, they take the position that no other combat sports can be regulated on the Pro level.  You can click here for more on this:

http://canadianmmalawblog.com/2013/10/25/bc-athletic-commissioner-explains-why-pro-kickboxing-muay-thai-are-illegal-in-bc/

An equally plausible interpretation is that if Bill S-209 allows pro MMA to be regulated all of its component sports can also be regulated (such as kickboxing).

I have read through the Hansard transcripts and can’t find any comments that clearly address this issue.

As the man who drafted the Bill, can you comment on its legislative intent.  Was it designed to allow Provinces to choose which professional combat sports they wish to regulate (ie not just Boxing and MMA, but all the individual martial arts that make up MMA) or was the intent as narrow as BC interprets it.

Your comments will be much appreciated.

Senator Runciman responded as follows:

“Mr. Magraken,

Thank you for your inquiry concerning the legislative intent of Bill S-209 and its consequences for combative sport in Canada. My intent when introducing this bill was to broaden the definition of combative sport to reflect modern realities. I neither intended nor expected that professional sports previously deemed legal by provincial regulators should now be regarded as illegal. Bill S-209 was designed to broaden, not narrow, the scope of legal combative sports.

Sincerely,

Senator Robert W. Runciman

____________________________________________________________________

Given Senator Runciman’s views it will be interesting to see if BC softens their interpretation and if this will help guide other Provinces in determining the scope of their powers to regulate professional combat sports under S. 83 of the Criminal Code.

Whether professional kickboxing and Muay Thai events can legally be sanctioned in Canada is debatable due to the present wording of Section 83 of the Criminal Code.

As previously discussed, British Columbia has taken a very restrictive interpretation of section 83 and deem these sports illegal in the Province.   I reached out to BC’s Athletic Commissioner to elaborate on BC’s position.  Dave Maedel responds as follows:

“Thank you for your email regarding professional kickboxing in BC. As you know, the federal government voted in June 2013 to pass Bill S-209 exempting mixed martial arts from the Criminal Code. This change to the Criminal Code, however, does not specifically identify professional kickboxing. According to the Criminal Code, the two professional combat sports that the Province is authorized to regulate are boxing and mixed martial arts. Until that changes, those are the only professional combat sports the Province will regulate. Because the Criminal Code falls under federal jurisdiction, members of the kickboxing community who have concerns may wish to contact their local MPs.”

It is unrealistic that section 83 will be further amended any time soon no matter how much pressure is put on local MP’s.  A more realistic alternative would be for an affected party to ask the BC Supreme Court to judicially review the Government’s refusal to licence a professional Kickboxing  / Muay Thai event.  It may be that a Court agrees with the Government’s interpretation, however there is also a possibility that a Court will find that if the Criminal Code allows Provinces to regulate MMA, they can also regulate all of the component sports that make up MMA.    Whatever the outcome judicial interpretation would bring welcome clarity to this situation.

A party with standing (ie – a person directly affected by the Government’s refusal to issue a pro kickboxing licence on the above grounds) can bring a petition to the BC Supreme Court to review the Government’s interpretation of the law.  Specifically, under section 2 of BC’s Judicial Review Procedure Act the Court can provide a declaration with respect to the Government’s interpretation of the statutory power vested in them by section 83 of the Criminal Code.  If a Court agrees that section 83 allows Provinces to regulate all of the professional martial arts that make up the component parts of MMA then that will pass the issue back to the Province to reconsider whether they wish to legalize professional kickboxing and Muay Thai in BC.

When it comes to “Professional” combat sports, Section 83 of the Criminal Code makes them all illegal except a “boxing contest or mixed martial arts contest 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.”

When the Criminal Code was amended earlier this year by Bill S-209, Pat Reid, the Executive Director of the Edmonton Combative Sports Commission, voiced concern that the revision is too restricted and would not allow local athletic commissions to sanction other professional contests such as Kickboxing and Muay Thai. Some thought Reid’s interpretation was off base however the BC Government has just confirmed that they share this restrictive interpretation of the Criminal Code.

In a presentation which aired yesterday, Assistant Deputy Minister David Galbraith confirmed the BC Government’s view that “based on legal counsel’s advice there is not going to be an expansion of professional (combat sports) beyond those two sports (boxing and MMA)“.   When asked specifically if there is a time-frame for the inclusion, at the pro level, of remaining combative sports which are currently not regulated Galbraith replied “based on legal counsel’s advice here in BC and the Provinces interpretation of the Criminal Code….the two sports we can regulate here in BC are boxing and mixed martial arts on a professional basis and until there is a change to that, that will be how and what the Province will be regulating.

This is certainly bad news for anyone hoping to bring in any professional combat sports besides boxing and MMA into BC’s borders.  In practical terms this means that unless the Criminal Code is further amended or unless a Court interprets section 83 of the Criminal Code in a broader way than the BC Government has done all professional combat sports outside of boxing and MMA will remain illegal in BC.   Worse yet, if BC’s interpretation of section 83 is shared by other Provinces then professional Muay Thai and Kickboxing could be illegal across all of Canada.

Given the Herculean effort it took for Bill S-209 to pass there is no realistic possibility of a further amendment to the Criminal Code any time soon.   The only practical hope of changing this reality is for a Court to interpret the Provinces abilities to regulate MMA to include all of the component martial arts that make up the sport.  This is certainly a possibility but only time will tell whether a court is prepared to do so.

murray rankin image

As recently reported, it is rumored that the BC Government is considering regulating amateur boxing along with other combat sports on the programme of the IOC.   Not all stakeholders are pleased with this development.  Canadian Member of Parliament Murray Rankin is among those.

Murray recently cautioned BC’s Minister of Sport about their rumored plans.  I have been provided with a copy of his e-mail which was sent to BC’s Minister of Sport last week.  It is unknown whether this has influenced any plans the BC Government has for amateur combat sports in the Province.   As previously discussed, now is the time for all stakeholders to let their views be known to the Government.   Just as Mr. Rankin did, it is important to voice concerns now to help influence the future direction of amateur combat sports in BC as there will certainly be some form of legislative change coming soon.  Here is Mr. Rankin’s e-mail

Dear Minister Oakes

I have been advised that the Province is considering the regulation of amateur boxing and amateur wrestling, apparently on the basis of amendments to the Criminal Code of Canada that were passed in Parliament during the last session.

As a Member of Parliament who participated in the debate on this amendment, I can advise that the legislative intent of the amendments was clearly to address the legality of mixed martial arts (MMA) and kickboxing. I cannot recall any reference to amateur boxing or amateur wrestling.
 
I understand that the amateur boxing community is concerned that your ministry may be considering amendments by which amateur boxers and wrestlers would have to first seek and obtain permission from the Lieutenant Governor in Council or a person or body specified by the Lieutenant Governor in Council to grant such permission. To date, this province has not regulated amateur sports: self-regulation appears to have been effective.

Although “prize fighting” had been outlawed in Canada, a boxing contest between amateur sportsmen wearing gloves of a certain size was deemed not to be a prize fight. As MMA and Kickboxing became popular in Canada, it was recognized that the old definition of a “prize fight” would have to be changed if those participating in the sport were to avoid criminal prosecution. It was to accommodate MMA and Kickboxing that the Criminal Code was changed with section 83(2) being replaced.

This amendment changes the definition of “prize fight” to include an encounter or fight with feet in addition to fists or hands so as include MMA and Kickboxing.

In my view, the notion that a contest between amateur athletes in a combative sport would be captured was not something that was contemplated.

Thank you for the opportunity to comment.

Yours truly
 
Murray Rankin,
Member of Parliament (Victoria)

amater olympic combat sports legal in BC

As previously discussed, while there are a lot of amateur combat sports which are presently illegal in BC by operation of s. 83 of the Criminal Code, those amateur sports “on the programme of the International Olympic Committee or the International Paralympic Committee ” are currently legal.  These include Boxing, Taekwondo, Wresling and Judo.

After bringing this to the BC Athletic Commission’s attention they have clarified their earlier position confirming this indeed is the case.   These four specific combat sports events can be held with no government approval without infringing the Criminal Code unless “the province’s lieutenant governor in council or any other person or body specified by him or her requires it“.   Presently BC has no such requirement.

Below is the clarification just released by BC’s Athletic Commissioner:

In addition, amateur combat sports currently on the programme of the International
Olympic Committee (IOC) or the International Paralympic Committee (IPC) do not
require permission. The Province can, however, designate any of those combat sports
as requiring permission if it chooses.
Until such designations are made, the changes in the Criminal Code of Canada make
any amateur combat sport contest (other than combat sports on the IOC/IPC list) illegal.

Criminal Code ImageWhen Bill S-209 first started making headlines last year it was clear that the wording of the legislation would leave a big legal gap which Provinces would be tasked with filling.

As Bill S-209 slowly plodded through the Senate and Parliament, Provinces across Canada did little in anticipation of the law passing.  Now S-209 is in force, and, as predicted, Amateur MMA is illegal in all Canadian Jurisdictions without a legislative framework in place addressing AMMA.

This is no longer an academic concern, events are now being directly affected.

Top MMA News reports that Unified MMA 16 which is scheduled to take place this week in Alberta has cancelled all amateur bouts on the card.  Cody Rempel of Top MMA News also reports that AFC 19, set to take place in July, has cancelled all amateur bouts.  This sudden change is certainly not unexpected.  More importantly, the timing of these cancellations is no coincidence as this is occurring exactly as Bill S-209 received Royal Assent.

Alberta is not alone.  BC is lacking a framework, as is Ontario and basically every Canadian Jurisdiction.  S-209 was not intended to make MMA illegal, on the contrary, it was intended to force Provinces to deal with the issue.  Provincial governments have been sitting on the fence and without pressure may continue to do so.    It is long past time to lobby local governments to pass the proper laws needed to give AMMA and other combat sports a clear and certain framework.

Bill S209 Royal Assent

Bill S-209, which overhauled the Criminal Code to allow Provinces to give MMA a legal framework in Canada has now received Royal Assent.  This makes the new law now in force.  MP Bal Gosal issued the following comments:

OTTAWA, June 20, 2013 /CNW/ – The Honourable Bal Gosal, Minister of State (Sport), today issued the following statement welcoming Royal Assent of Bill S-209, which will bring changes to the Criminal Code to amend the definition of prize fight and expand the list of permitted sports under prize fighting provisions:

“I am very pleased to announce that An Act to amend the Criminal Code (prize fights) has received Royal Assent.

“Sport has evolved and grown in importance in today’s society, and government policies, regulations, and legislation must evolve as well. Until now, the Criminal Code definition of prize fighting had not been updated since 1934, when boxing was the only combative sport considered.

“Today, many combative sports are included on the programs of both the International Olympic and Paralympic Committees and are governed by international federations that establish standardized rules for their sports. Other sports, such as Ultimate Fighting Championship (UFC) and other mixed martial arts, are growing in popularity and are being conducted under a governing set of rules for participants around the world.

“Our Government believes that authorized combative sports played under an accepted set of international rules should not be deemed to be explicitly illegal in Canada by the mere fact that they are combative sports.

“We are pleased that the amendments to the Criminal Code reflect the current reality of combative sports and provide provincial governments and sport bodies with a clear legal framework to effectively regulate combative sport in their jurisdictions.”

photo s209

Canadians have embraced Mixed Martial Arts since the Sport’s inception.  Despite this MMA has always been illegal in Canada.  The long road to legalization is nearing an end with Bill S-209 now passing Third Reading in Parliament with a vote of 267-9 allowing for a legal framework for both professional and amateur MMA along with other combat sports.

What does Bill S-209 do?

Section 83 of the Criminal Code makes prize fighting illegal except in limited circumstances.  Since 1934 the exceptions were limited to “boxing”.  Bill S-209 has expanded the circumstances for legal prizefights to include MMA and other sports.

The default is that Prize fights will remain illegal in Canada.  Bill S-209 permits Provinces to regulate Professional MMA in addition to boxing.  This clears the way for Provinces to have the power to create Athletic Commissions to regulate and sanction professional MMA Bouts.  This will give Provincial posts such as the Athletic Commissioner of Ontario and the BC Athletic Commissioner actual authority to use their powers to sanction legal MMA.  This will also remove the need for Provinces such as Quebec to invent sports such as “mixed boxing” to get around the old Criminal Code prohibition.  Lastly, it will hopefully provide motivation for Provinces that have been too gun-shy to regulate MMA to date to create athletic commissions and bring the sport above ground.

What About Combat Sports Other than MMA?

One of the shortcomings of Bill S-209’s language is that it limits Provincial authority to sanction professional “boxing contests or mixed martial arts contests” .

It can be argued that given this specific language other professional combat sports such as kickboxing cannot be regulated, therefore they will remain illegal.  BC appears to have taken this stance.

Perhaps the more sensible interpretation of the Provinces powers is that if they can regulate professional MMA they can regulated any subset martial art so long as the contest’s rules do not allow techniques outlawed by MMA.  For example, all techniques that are legal in a professional kickboxing match are also legal in MMA and it could be argued that a Province is well within their rights to regulate and sanction such sports.

What About Amateur MMA and Other Combat Sports?

Some Amateur combat sports will be legal by default and others will remain illegal by default, this includes amateur MMA.

Amateur combat sports that will be legal by default will include those  “in the programme of the International Olympic Committee”.    These include  Boxing, Wrestling, Judo and Tae Kwon Do.

Other Amateur combat sports, such as MMA, Kickboxing and Karate, remain illegal by default.  However, Bill S-209 allows this to be fixed by permitting Provinces to make them legal by specifically designating them. This is a useful tool and one that each Province should quickly use to give all Canadians a list of permitted amateur combat sports.

In short, Bill S-209 is a welcome change to the Canadian combat sports legal landscape.  I encourage all stakeholders in the combat sports community to now contact your Provincial authorities and encourage them to pass legislation addressing the amateur gap.

Here is video of the actual vote

I have been vocal in my support that while amending the Criminal Code to allow a legal framework for MMA in Canada is a good thing, Bill S-209 is not without its flaws.  Specifically it will make many amateur martial arts contests such as Karate and potentially even wrestling illegal by default unless Provinces act.

I am not the only supporter of legal MMA that has concerns about Bill S-209’s language.  Pat Reid, the Executive Director of the ECSC, is being vocal about a further shortcoming of Bill S-209 as it relates to “professional” contests.  Mr. Reid has recently written to all MP’s telling them in essence that they should get this overhaul right and not leave other marital arts in the dark.  Pat has provided me with a copy of his letter and allowed me to republish it here.  Below is its full text:

To the House of Commons Standing Committee on Justice and Human Rights:

The Edmonton Combative Sports Commission (ECSC) would like to raise a significant issue with the wording of Bill S-209 as it relates to professional combat sports.  It is the ECSC’s understanding that the policy intent of the Bill, as it relates to professional combat sports is that it means to modernize the Criminal Code of Canada’s approach to “prizefighting” by expressly permitting the types of professional combat sports that take place in Canada today, when regulated by a commission or athletic board created under provincial law.  These types of sports include the sport of boxing, the sport of mixed martial arts (MMA), and also the sport of kick boxing, the sport of Muay Thai kickboxing and the sport of Tae-kwon-do. 

As currently drafted, paragraph (2) (d) in the Bill, (which deals with professional combat sports) specifically adds the one sport of MMA to boxing as a sport that can be regulated by a commission or board and which would not be contrary to the Criminal Code.  

In the past, there has been uncertainty about whether the meaning of boxing is broad enough to include MMA, kick boxing, Muay Thai and Tae-kwon-do.  It appears the policy intent of the Bill in relation to professional combat sports was to remedy this uncertainty by specifically providing that other combat sports regulated by a commission were not contrary to the Criminal Code.

This broad approach is apparent in sections (2) (a) through (c) in the Bill in relation to amateur combat sports where a broad descriptive approach describing combat with fists, hands or feet is used to define permissible amateur combat sports.

In paragraph (2) (d), by specifically naming only the sport of boxing and the sport of MMA, we are concerned that the specific list excludes other combat sports, namely the sport of kick boxing, the sport of Muay Thai and the sport of Tae-kwon-do that are happening at the professional level, regulated by Canadian commissions today. 

This argument is strengthened by comparison with the broad approach to defining combat sorts in relation to amateur events in paragraphs (2) (a) through (c).

The ECSC is concerned that this result is not the intended result of the amendment to the Criminal Code and will result in professional combat sports other than boxing and MMA being driven underground and professional events being dressed up as amateur and operated without regulation by the Athletic Commissions.  This puts the safety of fighters at risk.  The question we ask is simply: “what is the policy intent?”

It is important to understand that the one particular sport that has been recommended to be added – mixed martial arts- is not a “collection” of combative sports – it is ONE specific sport.  It is one specific sport with its own set of rules.  It is a relatively new and very popular sport, but it still is only ONE sport.  It does not serve as an umbrella description that would include the other professional combat sports currently regulated today.

Other professional combative martial arts sports have been occurring with regularity long before the new sport of mixed martial arts arrived on the scene – sports including full contact karate, kickboxing, Muay Thai and Tae-kwon-do (which is not only recognized by the Canadian Ministry of Sport in Heritage Canada, it is an Olympic sport with men’s and women’s events contested by Canadians presently.)  Each of those professional combative sports also has its own rules.

The best analogy I can offer to illustrate the problem with the proposed amendment as it currently is written – is that it is presumed to be a solution to provide regulation for all ball sports (the analogy that “all sports that utilize a ball” are equal to “all combative sports”). But by adding only one sport (say football, to use the ball sport analogy) you exclude softball, baseball, soccer – in other words the other ball sports.) Football has its own rules and you can’t pretend that football rules can somehow be stretched to cover baseball, soccer, softball, etc. (the other ball sports).

Mixed martial arts, even though it sounds plural because of the “s”, actually is only ONE sport (like football) with specific rules. So, to continue with the analogy, when someone approaches a provincial Commission with a request to hold a softball (kick boxing) event, and only football  (MMA) has been allowed as a result of the current wording in the amendment – the Commission can’t pretend to permit the softball (kick boxing) event can occur as though it were football (MMA) and apply the rules from football (MMA) to cover it.  

Instead, the Commission must advise the softball (kick boxing) promoter that they cannot hold softball events any longer — the government has decided this by adding only the singular sport of mixed martial arts (football) (and its specific rules) and none of these other ball sports (combat sports) with their specific rules are included in the legislation.

I would ask that you reconsider the current recommendation of just adding this one new (and latest) sport of professional mixed martial arts.  Other professional combative sports that have a much longer history that are already being held across the country, would suddenly be left unregulated because this legislation does not contemplate or allow for their regulation.

As Bill S-209 is drafted, a provincial or municipal Athletic Commission would not be able to regulate any professional combat sport other than the singular sport of boxing and the singular sport of MMA.  If a Commission were to interpret MMA to include Muay Thai, and apply Muay Thai rules, regulation by that Commission would be contrary to the Criminal Code.  If a fighter were to suffer a severe injury such as a brain injury in a Muay Thai event, the Commission would likely be negligent.  

So the question remains – what is the policy intent of the proposed amendment?  If you were to ask Commissions in this country that regulate these combative sports events you would hear us say (as we advised in the Senate Hearings on this Bill) that we need to ensure we can regulate in accordance with the Criminal Code of Canada and that we are seeking clarity.  We need to be able to regulate for the safety of the fighters in all of the disciplines of combative sport that are being regulated today. 

We hope we can all take a step back and allow the government policy writers to find the right wording to cover “all the combative sports disciplines that involve striking and grappling”. These are the combative sports that are recognized, and currently regulated, by the respective provincial combative sports commission” jurisdictions – sports that need to be captured in the legislation for the safety of the fighters. 

We advocate a broader approach, rather than just amending the Criminal Code by specifically adding one additional sport and in the process excluding all the other combative sports.

Thank you for the opportunity to make this submission on behalf of the Edmonton Combative Sports Commission, with support from other combative sports commissions in Canada.  I hope this explanation assists a fuller understanding of our view of the regulatory and safety implications of this important issue with Bill S-209.

 Respectfully submitted, 

Pat Reid, Executive Director

Edmonton Combative Sports Commission