Doping Infractions Have No Place In Canada’s Courtrooms

November 15, 2015

criminal law, Doping

By Geoffrey Hamilton – Thompson Rivers University 2L JD Student

Doping in sport is now characterized as one of the most morally bankrupt acts that athletes can partake in. It has gotten to a point where countries are choosing to enact sports specific criminal legislation to prosecute those who have violated sections of the WADA code. Countries that have opted for this regime include Austria, Italy, and France. Austria’s sports specific legislation asserts that anyone who commits fraud by using any substance or method prohibited under the European Anti-Doping Convention faces up to 3 years in prison. This sentence can be increased up to 10 years if the ‘damage’ equates to more than 50,000 euros.

While Austria’s criminalization on the use of banned substances is extreme, many other countries have enacted legislation that criminalizes the trafficking of WADA prohibited substances. So while an athlete’s use of these substances may not result in a criminal sanction, more countries are becoming comfortable with associating doping control issues with criminal penalties.

Criminally charging athletes who violate the WADA code will likely not be permitted in Canada. Any sentence ordered under this hypothetical regime would undermine the fundamental principle of sentencing found in our Criminal Code which states that a “sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.

This can be broken down into two parts: the proportionality to the gravity of the offence, and the degree of responsibility of the offender. In regards to proportionality, an athlete who fails a doping test for the first time can face up to a 4 year ban. This not only amounts to a death sentence for most athletes’ careers, it also can cost professional athletes millions of dollars in earnings, sponsorships, and other sports related incomes.

The findings of all doping violations are made public. Seeing as how the public views these individuals’ actions as detestable, these former athletes could find it very difficult to attain some form of recovery by way of meaningful post-athletic employment. To add an additional fine or prison sentence to this reality would be irresponsibly punitive and would not amount to a proportionate sentence. Further, the additional burden of a permanent criminal record placed on these disgraced former athletes would all but eliminate any chance at allowing them to move on and perhaps one day make up for their mistake by becoming a productive member of society.

In regards to the degree of responsibility of the offender, athletes found to have banned substances in their systems are tried under the principle of strict liability. There is no defence; anything found in your system is your own responsibility. This seems irreconcilable with a criminal justice system that requires a burden of proof beyond a reasonable doubt. While there are some strict liability summary offences in Canada, none of them reflect the stigma or penalties associated with Austria’s sport specific fraud.

The only somewhat rational response to this difference would be for athletes who have failed drug tests to have a completely separate criminal trial where perhaps they could actually formulate a defence for why the substance was in their system. This would often result in long, convoluted trials that are associated with fraud in our Criminal Justice system. It would be a completely unnecessary burden on an already overburdened system for a non-violent offence that has no business in the criminal courtroom. These are just a few of the reasons why this type of legislation should not be enacted in Canada.

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