By Callan MacKinlay – Thompson Rivers University JD Student
The World Anti-Doping Code (WADC) has outlined within it many articles on how to make out a doping infraction. Article 3.1 states that the burden of proof on the tribunal for making out an anti-doping rule violation is that it must be satisfied to the ‘comfortable satisfaction’ of the tribunal. This is claimed to be greater in all cases than a ‘balance of probabilities’ but less than ‘beyond a reasonable doubt’. I would argue that while this burden might seem fairer at first glance than a balance of probabilities, it is really just masquerading as a more stringent burden when in practice it operates exactly the same as a balance of probabilities.
Canada has had issues in the past with using different burdens of proof in civil cases. In Sylvan Lake Golf & Tennis Club v. Performance Industries ABQB 1999 479 (CanLii), the court stated that in order for rectification of mistake to be made out, the party claiming it had to establish their evidence by a proof of ‘beyond a fair and reasonable doubt’. This was stated to be above ‘a balance of probabilities’ but below ‘beyond a reasonable doubt’.
However, this was later thrown out in the case of FH v McDougall  3 SCR 41, where the Supreme Court ruled that there is only one standard of proof in the civil context: ‘a balance of probabilities’. This is likely because other standards or ‘shifting standards’ are uncertain and make the law less clear. The evidence must simply be sufficient to make it more likely than not and the test is made out.
For the WADC, the ‘comfortable satisfaction’ burden is just as uncertain as any other standard that claims to be a middle ground between the civil and the criminal standard. For example, if you are leaving your house and you think that it might rain, what standard do you use to determine if you should take your umbrella? Do you use beyond a reasonable doubt? Unlikely, because, depending on the local climate, you could always have a reasonable doubt that it might rain, thus you would always take your umbrella with you. Do you use a balance of probabilities? It is much more likely that this is the standard the average person uses in their everyday lives. If you check the traffic and it says that there is a 51% chance that your usual route will be slower, you will take your backup route. If it says 30% or 20%, then you probably won’t take your backup route. Where does comfortable satisfaction lie? Do you take your backup route if you are comfortably satisfied that it will be slower during your commute? How is that different from a balance of probabilities? If the traffic report says there is a 51% chance of traffic on your usual route, I could easily take my backup route with the justification that I am comfortably satisfied that it will be faster than my usual. If the report says it has a 20% or 30% chance of being slower, could I still claim to take my backup route with comfortable satisfaction?
In summary, ‘comfortable satisfaction’ is a problematic burden to use. While the WADC claims that the burden is higher than ‘a balance of probabilities’ I am not sure that its plain usage really fits that description or that the case law makes it out. If anything can be shown from the case law, especially for those cases involving innocent anti-doping violations, ‘comfortable satisfaction’ is not much different from a balance of probabilities in the ease with which the WADC can make out the violation. Unless the World Anti-Doping Association wants to change its burden to the criminal standard of ‘beyond a reasonable doubt’ I suggest they stick with the well-established civil standard and not make up new ones.