Posts Tagged ‘section 83 criminal code of canada’

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

black white grey image

Update – February 28, 2014 – the CNMMAF has now released the details of the format which, while may not be a good measure of who the best MMA competitors are, seems to take care in trying to avoid being labeled a ‘prize fight‘ under the Criminal Code.  Here are the details of the tryouts:

CNMMAF AMMA Try Outs Format

Please be advised of the guidelines for the Try Outs.

1) Host facility will select a panel of top assessment coaches from the following area’s.

  Strength and Conditioning Coaches

 Striking Coaches (Boxing/Muay Thai/MMA… etc)

 Grappling Coaches (wrestling/judo/jiu jitsu…etc)

* also a selection of judges, referees, officials (can assist in the screening and selection process, as they are extremely valuable)

This decision is up to the Host Group. Each group eg: Strength & Conditioning Coaches (will select a captain from their own group..this is up to the coaches in each group to elect one) The captain will instruct the coaches on the format of the conditioning exercises that will be scored.

This will consist of a minimum of 10 exercises that will test their over all conditioning and strength. We will forward examples of exercises (but I am fully confident that the Strength Coaches can come up with them) All exercise’s will be the same duration for everyone tested (depending on the number of participants…there might be numerous testing groups in one day)

Striking Coaches will do the same as above (select a captain). All participants will demonstrate their striking skills (pad holding, bag striking,shadow boxing, etc.) Coaches will have them demonstrate offensive and defensive maneuvers …. much like a testing for a belt in martial arts.

Grappling Coaches will do the same (select a captain) All participants will demonstrate their grappling skills (rolling with each other…as well as be tested by the coaches for their knowledge of techniques) the duration of rounds can be 3 or 5 minute rolls.

This procedure is not a complicated one (this is similar to what the UFC uses in it’s Ultimate Fighter Show) all that is required is a fair selection and equal testing criteria for everyone. Whatever techniques are selected, or exercises for the strength and conditioning ..they must be consistent.

Each competitor will have a scoring sheet that he/she will take with them to each testing station. there will be a scoring sheet (After each testing station is complete..the captain will take them all to the next scoring station) The competitors will not know their scores until the end.

There will also be a comment section where the coaches can comment. As a reminder due to the current legal issues with Amateur MMA

we must be in total agreement that this is not a fight..no head striking allowed what so ever. These are NOT pre-arranged matches!

As a special note to the selection committee. It is very likely that you will have a closed door meeting when it comes down to the final selection.It is also likely that you will have a call back at the end of the day to assess (undecided candidates)

2) Athletes

 Age Requirements must be acceptable.

 All participants must be able to legally enter the USA.

All participants must submit a brief resume (identifying their involvement in combative sports)

 All participants must be on time

All participants must demonstrate good sportsmanship (regardless of the out come) All participants must come with full equipment…gloves..shin guards…mouth pieces etc. just for extra safety precautions. (safety of the competitor is first)

All participants will sign a liability waiver.

> all participants must sign a media release form (video taping or media coverage)As a special note: It is the coaches responsibilities to leave the athletes with positive experience regarding their abilities and the areas that they need to improve on etc. (for they may be tomorrows champions)

—————————————————————————————————————————–

Further to my recent discussion of the Canadian National Mixed Martial Arts Federation’s planned ‘national championships’, the CNMMAF appears ready to test the boundaries of the Criminal Code in their efforts to field a Canadian AMMA team.  The road to the national championships will apparently seek to get around the section 83 prohibition of prize fights by hosting ‘tryouts‘ at various gyms and dojos.  The CNMMAF has recently updated their website with the following announcement:

The Canadian National MMA Federation has announced it will have a Nation wide Team Canada MMA Tryout , The team selections with be based upon results from the tryouts and recommendations from each participating Province.  Mr. Pellitier , The CNMMAF National Director is ensuring the criteria is fair for all provinces and that the selection process is non bias and include fair representation from all participating provinces and is within the legal guidelines of Section 83 of the Criminal Code of Canada

It is unclear exactly what the tryouts will entail other than sparring being a possibility and assertions that the competition will be fashioned similar to the tryouts held by Zuffa when screening candidates for TUF.   The official CNMMAF website only has this to say about the tryouts:

We will post all the information for the tryouts within the next week. And contact any the Athletes that have preregistered to update them.  Do not cut weight because if you are selected for the National team you will be required to weight in everyday.  Also , This is not a fight , We have to comply with section 83 of the criminal code , we have a evaluation process that will allow us to pick the athletes we feel will best represent CANADA at the world Championships. We ensure any athlete a fair and democratic process across the country , and a fair assessment to determine the best Athletes for Team Canada.

Will this strategy of implementing ‘tryouts’ instead of ‘fights’ work to get around the Criminal Code?  Only time will tell.

The Criminal Code captures non sanctioned amateur MMA competitions so long as they are “an encounter or fight with fists, hands or feet between two persons who have met for that purpose by previous arrangement made by or for them“.    This is a very wide net and certainly can be applied to competitive amateur tryouts.  There is no magic in avoiding the Criminal Code by hosting an event in a gym/dojo, or by attaching the labels ‘tryouts’ or ‘sparring’ to a competition.  All that matters is whether the above technical language is met.  If yes a prosecution can follow.  It also does not matter if you call it a fight or not as the Criminal Code also prohibits “encounters” which are arguably a broader category

To my knowledge section 83 has never been used to go after legitimate training and sparring and arguably does not extend so far.  The pre arranged ‘encounter or fight‘ likely must go beyond training and instead have a competitive nature to it.  Tryouts which seek to determine who goes on to compete in ‘national championships’ certainly can be caught by the Code depending on what occurs in the tryouts.  Time will tell if this is an effective strategy to avoid the Criminal Code or if various Provincial authorities are prepared to clarify the shades of grey in section 83 with prosecutions following these events.

Prosecutions under section 83 of the Criminal Code are few and far between and published reasons for judgement addressing such prosecutions are even more scarce.  Recently unpublished reasons for judgement were shared with me addressing proceedings on a guilty plea during a section 83 prosecution in Ontario in 2003.  I highlight these here for the sake of public access to information regarding such prosecutions.

In the 2003 case (R v. 1156579 Ontario Ltd.) the Defendant corporation along with two of its shareholders were charged with holding an unlawful prizefight contrary to section 83(1)(b) of the Criminal Code.   A plea bargain was apparently struck with the corporation alone pleading guilty to the charge and the charges against the individuals were withdrawn.  The Court went on to accept a proposed fine of $2,000.  Following the guilty plea little analysis is done addressing appropriate sentences for these charges with the Court’s primary concern being the timelines needed to pay the fine.

You can find a full copy of the transcript of proceedings here: HMTQ v. 1156579 Ontario Ltd

Prestige Fight Club Advertisement

Update June 24, 2014 – The criminal charges have apparently come to end by way of conditional discharge

_____________________________________________________________

Update January 30, 2014– it is now reported that Criminal Charges are being pressed as a result of this event

_____________________________________________________________

 

Update October 15, 2013 – Marlo Pritchard, Chief of Police for the City of Weyburn, confirms this matter is still under investigation advising as follows “the Weyburn Police Service is investigating an allegation of an unsanctioned MMA event that was held here earlier in the fall. The investigation is ongoing

_________________________________________________________________

Update October 2, 2013 – Melanie Bauman, a lawyer with the Government of Saskatchewan, advises as follows:

The province is making arrangements to form a provincial commission to be operational in the summer of 2014.  As a result, if any professional events are held before the proper legislation and regulations are in place, these events will be illegal. The Saskatchewan Martial Arts Association is the body with authority to sanction amateur combative sports. If amateur events are held without SMAA sanctioning, these events will be illegal.

 Regarding the Sept. 28th Prestige event, the Weyburn City Police are currently investigating the allegation of the event being non-sanctioned.

________________________________________________________________

Update September 29, 2013 – The event has now taken place and indeed did not have SMAA sanctioning.   Today the SMAA confirms that “the event in Weyburn was never scheduled to be an SMAA sanctioned event.“.  The question now is what, if anything, will be the Province of Saskatchewan’s response.

___________________________________________________________________________________________

Update September 26, 2013MMASucka reports that Prestige FC President Cord Crowthers acknowledges that this event is not sanctioned and will still proceed quoting as follows “The rumors that you hear online are 95%-99% outrageous, the only thing that’s true is that our show is still a non-sanctioned show.”

He provides the following reason for the lack of sanctioning by SMAA:

The bottom line is we met with them on August 30, four weeks before the show along with the government. They absolutely felt that we could have the show sanctioned by the 28th. They told us they couldn’t get the show sanctioned by the 28th – we think that is absolutely untrue since they are doing a show two weeks after our show, just down the road and they have had plenty of time to sanction that show. It is a lot of he said, she said; I don’t like this person, I don’t like that person kind of thing. The SMMA needs to get off their butts, work with all the groups of Saskatchewan, stop playing favorites and realize they’re not a group; they’re a commission now. Their job is not to have me as a member, it’s to oversee my show and make sure we do things right. It’s what everybody wants, but they only want to work with their friends and their so-called partners.

_____________________________________________________________________________________________

 

The Prestige Fight Club is advertising an event scheduled to take place in Weyburn, Saskatchewan on September 28, 2013.

As things currently stand professional MMA is still illegal in Saskatchewan and amateur MMA events can only be legally held  with regulation of the Saskatchewan Martial Arts Association.

I have been advised by  a Senior Policy Analyst for Saskatchewan’s Ministry of Parks, Culture and Sport that as of today this scheduled event is not sanctioned by the SMAA.   Unless this changes this means that this event will be, on the face of it, in violation of section 83 of Canada’s Criminal Code.

The government further advises me that they are aware of this event and that “Conversations have taken place with the local police, city council (and) justice officials“.  It is unclear if this event is still going to proceed but if it does we will all get a first hand glimpse of what the consequences of unsanctioned MMA will be in a post Bill S-209 world.

Criminal Code Image

When an unlawful combat sports event takes place in Canada typically prosecutions will take one of two forms, either pursuant to Section 83 of the Criminal Code for being unlawful ‘prize fights’ or under various Provincial or Municipal legislation involving unsanctioned combat sport events.

Since section 83 of the Criminal Code was overhauled by Bill S-209 there have not been any prosecutions under the the new section so to get things started I will address historic prosecutions.  These have been few and far between with the two most prominent cases being R v. Jay Chang and R v. M.A.F.A.

In the above cases the Defendants were hosting an MMA contest and a Kickboxing contest respectively.  These were held without regulatory oversight by a Provincial or Municipal Athletic Commission.   In both cases a defense was raised that the events were a form of amateur boxing and therefore exempt from prosecution.  The Courts disagreed noting that a traditional definition of boxing will apply when determining whether a prize fight run afoul of the Criminal Code.  (Note – under the new section 83 there are more amateur sports besides boxing which may be exempted absent Provincial intervention ).  In reaching this decision Judge Brien repeated and adopted the reasoning in R. M.A.F.A. and provided the following reasons:

Both exclusions under s. 83(2) are based upon the definition of ‘boxing contests’.  In M.A.F.A. Inc. supra, Kastner J. reviewed several dictionary definitions of ‘boxing contest’ to find the ordinary meaning of the term, concluding as follows:

[34] “ The dictionary definitions seem to confine ‘boxing’ to a sport practised generally with fists, often gloved, and illustrated primarily with blows above the waist.” 

[35] The fact that all combatants wore boxing gloves is not determinative….”

After determining that the term was unambiguous in light of the purpose and goals of s. 83, that is to protect the health of the contestants, he stated:

“[42] If Parliament had intended “boxing” to mean

“boxing by fists and other boxing-type maneuvers in the nature of boxing”. s. 83 would be drafted to reflect that.  Defence counsel urges the Court to keep in mind that Muay Thai (Muay meaning “boxing” in the Thai language) is a sport originating in Thailand centuries ago, and that the Court ought not to apply North American standards in interpreting this section of the Criminal Code.  However, the drafters of the Code were undoubtedly familiar with the Greco-Roman origins of the sport, the same root as Canadian boxing, but came to the conclusion that public welfare and order required some limitations to or protections associated with the sport which could best be dealt with by each province.  The title “Fall Brawl” does not immediately bring to mind a sparring match with gloves under Queensbury or similar rules as an exhibition of skill and without any intention to fight until one is incapacitated by injury or exhaustion.

[para43]     The concept of exempting boxing contests between amateur sportsmen where the contestants wear boxing gloves of a certain weight has a clear meaning.  Parliament intended to criminally sanction the actions of every person who promotes a prize fight which is not sanctioned by the regulation of a commission or body appointed by the province, which would ensure reasonable standards of safety for all participants, unless it was an amateur boxing contest, where the boxing gloves of the requisite mass would protect the pugilists from serious harm.

[para44] In sum, “boxing contest” is to be given its ordinary meaning, since the ordinary meaning of the words is consistent with the context in which the words are used and with the object of the Act.  Thus, that is the interpretation, which should govern.”

With this analysis, I am in agreement.  Clearly this subject event was not a ‘boxing contest’ as referred to in s. 83.  Further, while a particular province might, if it wished, proceed to deem it to be such and establish a licencing body, New Brunswick has not.  For these reason, the event does not fall within the exclusions.  

Despite a relatively long history of hosting professional MMA bouts, inlcuding several high profile UFC contests, professional MMA bouts presently are illegal in Canada.  This is so due to the outdated language of section 83 of Canada’s Criminal Code which makes it an offence to engage in a “prize fight” except in limited circumstances.

Currently Section 83 of the Criminal Code reads as follows:

Engaging in prize fight
  • 83. (1) Every one who
    • (a) engages as a principal in a prize fight,
    • (b) advises, encourages or promotes a prize fight, or
    • (c) is present at a prize fight as an aid, second, surgeon, umpire, backer or reporter,

    is guilty of an offence punishable on summary conviction.

  • Definition of “prize fight”(2) In this section, “prize fight” means an encounter or fight with fists or hands between two persons who have met for that purpose by previous arrangement made by or for them, but a boxing contest between amateur sportsmen, where the contestants wear boxing gloves of not less than one hundred and forty grams each in mass, or any boxing contest held with the permission or under the authority of an athletic board or commission or similar body established by or under the authority of the legislature of a province for the control of sport within the province, shall be deemed not to be a prize fight.

The Government of Canada has introduced legislation to modernize the definition of exempt “prize fights” to include properly sanctioned MMA events.  Specifically Bill S-209 seeks to make the following changes:

2) In this section, “prize fight” means an encounter or fight with fists, hands or feet between two persons who have met for that purpose by previous arrangement made by or for them, but does not include
 
 
(a) a contest between amateur athletes in a combative sport with fists, hands or feet held in a province if the sport is on the programme of the International Olympic Committee and, in the case where the province’s lieutenant governor in council or any other person or body specified by him or her requires it, the contest is held with their permission;
 
 
(b) a contest between amateur athletes in a combative sport with fists, hands or feet held in a province if the sport has been designated by the province’s lieutenant governor in council or by any other person or body specified by him or her and, in the case where the lieutenant governor in council or other specified person or body requires it, the contest is held with their permission;
 
 
(c) a contest between amateur athletes in a combative sport with fists, hands or feet held in a province with the permission of the province’s lieutenant governor in council or any other person or body specified by him or her; and
 
 
(d) a boxing contest or mixed martial arts contest heldin a province with the permission or under the authority of an athletic board, commission or similar body established by or under the authority of theprovince’s legislature for the control of sport within the province

In short this proposed legislation will allow Provinces to regulate both professional and amateur “Prize Fights” which will specifically include MMA.  Currently the Bill is being debated before the Senate.  You can click here to read the Senate’s news release over these hearings.  You can access webcasts of these meetings here and here.