Date: 2018-11-19

Appeal from the Notice of Proposed Order to Refuse a Licence issued by the Registrar of Alcohol, Gaming and Racing under the Horse Racing Licence Act, 2015, S.O. 2015, c. 38, Sched. 9

Between:

Jonathan Vanstone

Appellant

and

Registrar of Alcohol, Gaming and Racing

Respondent

DECISION AND ORDER

Adjudicator: Dawn J. Kershaw, Vice-Chair

Appearances:

For the Appellant: Self-represented

For the Respondent: Rob Sidhu, Counsel

Heard in Toronto: September 25, 2018

REASONS FOR DECISION AND ORDER:

A. Overview

1This is an appeal from a Notice of Proposed Order to Refuse a Licence issued by the Registrar of Alcohol, Gaming and Racing under the Horse Racing Licence Act, 2015, S.O. 2015, c. 38, Sched. 9 (“proposal” and “Act”, respectively). The appellant filed his appeal on July 6, 2018.

2The Registrar refused the appellant’s licence because it stated it had reasonable grounds to believe that he will not act in accordance with the law, or with integrity or honesty or in the public interest, having regard to his past conduct.

3The facts are not in dispute. The appellant was convicted in August 2013 in the United States of Attempted Enticement of a Minor to Engage in Criminal Sexual Conduct. In short, the appellant sent sexually explicit text messages to a person he believed was a 15 year old young man, and also arranged to meet for sex. The person with whom he was corresponding was actually an undercover police officer, and the appellant was arrested when he went to meet the person.

4The appellant pleaded guilty to the charge, served 4 years of a 10 year sentence, was then released on full parole, extradited to Canada and placed on 15 years of supervised release. He is on parole until 2022. The appellant does not dispute any of this.

5The appellant participated in an interview with a Registrar’s investigator, and advised the investigator that he took responsibility for his actions by providing a statement to the U.S. authorities and by pleading guilty. During the interview, he also disclosed a 2007 conviction for driving under the influence that he had not disclosed in his application for a licence.

6For the reasons that follow, I have determined that the Registrar has not met its burden to establish grounds to refuse to issue a licence. However, I have not yet determined which conditions, if any, would be appropriate. As set out below, the parties may make submissions by December 1, 2018 regarding conditions.

ISSUES:

7I must determine whether the Registrar, in refusing to issue the licence, had reasonable grounds to believe that the appellant will not, when acting as a licensee, act in accordance with the law, or with integrity or honesty or in the public interest.

EVIDENCE AND ANALYSIS:

8The appellant testified that he was incarcerated for 4 ½ years and learned his lesson and nothing like this will ever occur again. He was a model inmate. After he served four years in a U.S. prison, the appellant was extradited to Canada. While continuing his sentence in Canada, he voluntarily took a 4 ½ month long sex offender program even though the psychologist deemed he did not have to complete the course and exempted him. He chose to take the course knowing that this would delay his parole hearing and increase the amount of time he was incarcerated. He spent between 6 and 7 months more in jail than he would have otherwise. During the course, he attended class every day from about 12:30 to 4:00 p.m. and took a leadership role. He was not afraid to disclose or discuss his crime. The appellant was released in September 2017.

9Upon his release, a friend’s father, Ian Howard, who has worked in the horse racing industry for 45 years, offered him employment. To accept that offer of employment, the appellant requires his licence as a groom. Mr. Howard told the appellant that he would talk to the stewards before the appellant submitted his application so that they would be aware of his criminal conviction before his application was submitted.

10The appellant testified he was so concerned about how they would view his U.S. conviction that he did not even think about his 2007 conviction for driving under the influence, and failed to include it in his application. He denied the suggestion that he hid it and only disclosed it when he was asked about it in the interview because he then knew the Registrar knew about it. He took full responsibility for forgetting to include it. He testified that if he was being dishonest and not acting with integrity, he would not have disclosed his U.S. conviction. Mr. Howard also testified that in their discussions, they were focused on the appellant’s more serious, more recent conviction. He testified he did not believe that the appellant meant to mislead anyone by forgetting to include his 2007 conviction.

11The appellant testified that his entire work history involves farms and horses, and he carried a groom’s licence for years. His employers trusted him to work with clients.

12He testified that the Canadian justice system released him without any conditions because he is not a threat to the public. He does not have a Canadian criminal record. The applicant’s parole officer, between September 2017 and August 2018, wrote him a letter of support in which she confirmed that the appellant was released without conditions, explaining that the parole board said they believed his offence was a one-time conviction that would not be repeated as they believed the appellant had learned from his incarceration and program involvement. The parole officer also confirmed that a psychological assessment indicated that the appellant is at low risk to reoffend.

13The parole officer further stated that the appellant has worked in many environments where he has had regular contact with children under the age of consent and there have been no concerns or issues. The appellant testified there are no conditions restricting him from working in proximity to people under the age of 16.

14The parole officer wrote that the appellant has strong support from friends and family. Finally, the parole officer wrote that since his release on full parole on September 1, 2017, the appellant has complied fully with community supervision, and will remain on community supervision until September 6, 2022.

15The appellant testified that as soon as he was released, he took as much work as he was offered. His livelihood depends on getting his licence.

16The appellant had two character witnesses testify, including Mr. Howard and the appellant’s roommate, C.L., whom he has known for more than 15 years. He also submitted letters from two other character references who attested to his good character, their opinion that the applicant will not re-offend, the fact that he is a hard worker and that he is an animal lover.

17Mr. Howard gave very impassioned evidence. He got to know the appellant because the appellant worked for the person who stabled his horse next to Mr. Howard’s wife. He saw him between 9 and 12 times a year. The appellant also worked for him in 2001, 2005 and 2010 part-time. He worked with a temperamental filly with whom he spent much time and to whom he gave tremendous care, which he testified is not typical of everyone in their business.

18Mr. Howard testified there are about 2800 horses stabled where he has offered the appellant work, and that the premises are about 100 acres. He testified that some of the areas have security cameras, including the area where he intends to employ the appellant. No one is permitted to stay overnight on the premises.

19Mr. Howard testified that many of his employees in the racing industry have criminal records. He pointed out that on site where he has offered the appellant a job there are security, stewards and an office of the Registrar. He testified he cannot think of a better, safer place to reintegrate someone into society. He testified that that area is somewhat insulated from the community, and any abhorrent or aberrant behaviour is quickly noticed and dealt with by the stewards or security.

20Mr. Howard testified that in addition to the security people in the back stretch, there are at least two people on the gate and also supervisory personnel above them. In addition, because there is a casino there, there is additional security in the area. He testified there are a lot of people whose first response is to call police in the event of any violation. Problems do not go unnoticed and police are called.

21Mr. Howard also testified that if he saw behaviour in the appellant that was out of control, he would advise that employing him would not work, but he does not see that in the appellant. He testified he knows the appellant will act with honesty and integrity.

22Mr. Howard’s opinion of the appellant was supported by the appellant’s roommate, C.L., who has known him for 15 years. She testified she would not live with someone she did not trust. She testified that he made a mistake, but that his good and long history of working with horses and clients should not be overlooked. She testified that the appellant is trustworthy, honest and wants to make horses his living.

23The Registrar’s current manager of horse racing eligibility in the licensing and registration department, Tanya Cadeau, testified on behalf of the Registrar. The appellant’s application came to her because it was identified as a higher risk application. She asked for further investigation to be done.

24Ms. Cadeau testified that a groom’s job is in the “back stretch”, which has security on site. Access is restricted those with licences, including owners, trainers, grooms and those who are stabling horses there. There is also a race and a licence office on site. People under 18 years of age are not permitted in the area without parental consent.

25Ms. Cadeau testified that having a criminal conviction is not an automatic reason to deny someone a licence. In the appellant’s case the Registrar’s concern was that the crime involved a minor, which is very serious.

26Ms. Cadeau’s concerns in this case included the fact that the appellant contacted the victim on multiple dates. In addition, though 5 years had passed since the conviction, the appellant was incarcerated for 4 ½ of those and therefore had not demonstrated over a long enough period of time that his conduct warranted the issuance of a licence. Ms. Cadeau also had concerns about the fact that the appellant did not disclose his driving conviction from 2007.

27Ms. Cadeau testified she considered all of the information and acknowledged she knew that a psychologist said the appellant did not need to take the sex offender program. She also considered the fact that it has now been a year since the appellant has been out on parole with no incidents, and that the appellant is out on parole with no conditions.

28Ms. Cadeau admitted she went back and forth on this application. She initially recommended the licence be issued with conditions. Ultimately, however, after a supervisor reviewed the file, they were concerned that the appellant was incarcerated for most of the time since the incident. Therefore, the Registrar took the position not enough time had passed for the appellant to have demonstrated that his conduct would satisfy the conditions for issuing him a licence.

29Ms. Cadeau testified there were concerns about the public interest and the recency of the appellant’s conviction. I asked her what she meant by public interest concerns. She submitted that the fact that the incident involved a young person is a cause for concern because that behaviour could continue. On cross-examination, she testified that a person under 18 can be in the back stretch but only with parental consent. She also testified that she did not think anyone under 15 had applied.

30It was clear from the evidence that this was a difficult decision for the Registrar. The appellant’s conviction was serious and he remains on parole until 2022. He has been out of jail for about a year and has not reoffended.

31As indicated above, I must determine whether the Registrar, in refusing to issue the licence, had reasonable grounds to believe that the appellant will not act in accordance with the law, or with integrity or honesty or in the public interest.

32There are two aspects to the Registrar’s proposal. I turn first to the non-disclosure of the appellant’s 2007 driving conviction.

Non-disclosure of Driving Conviction

33I find based on the evidence that the appellant did not try to hide that conviction, but simply forgot about it in the circumstances. I accept that he was very concerned about how his luring charge would be viewed by the Registrar and this was his focus. I accept his evidence that had he been trying to hide his past, he would not have disclosed his luring conviction.

34Although the Registrar put it to him that he disclosed it only because he knew Mr. Howard had talked to the stewards already, I do not accept that. The appellant’s actions in jail by taking the sexual offender program voluntarily and taking a lead role in that program by admitting to his actions and talking about them support my finding that he took a similar action when he disclosed the information on his application. My finding is further supported by the fact that the appellant pled guilty to the offence. From the start, he has taken responsibility and has not hidden from his behaviour.

35As a result of my finding, I find that the Registrar did not satisfy the onus on it to prove that the appellant’s failure to disclose his 2007 conviction in his application constituted reasonable grounds to show that he will not demonstrate the utmost honesty and integrity, or will not act in accordance with the law, or with integrity or honesty or in the public interest, or that he will carry on activities in contravention of the Act, the rules of racing or the terms of the licence. I find this was an oversight and not intentional. I turn now to the larger issue of the applicant’s conviction for Attempted Enticement of a Minor to Engage in Criminal Sexual Conduct.

Luring Conviction

36With respect to this conviction, I find that the Registrar also has not satisfied its onus. I acknowledge that this was a difficult decision for the Registrar. The main reason the Registrar made its ultimate decision was because, given the nature of the appellant’s conviction, it determined it had not been long enough since that conviction, nor had the applicant had enough time out of custody, to demonstrate that he would act in accordance with the law and with integrity, honesty and in the public interest. However, I find that, based on all the evidence, it did not have reasonable grounds for its finding for the following reasons.

37The following conduct of the appellant supports a conclusion that he will act in accordance with the law and with integrity, honesty and in the public interest in the following ways:

a. He pled guilty to the charge;

b. He was a model inmate;

c. He voluntarily took a sex offender program even though a psychologist determined he did not require it;

d. He became a leader in that program through his willingness to talk about his crime;

e. He has not reoffended (though I acknowledge that he is on probation until 2022).

38The fact that the parole board released the appellant without any conditions also supports my finding as this constitutes strong evidence that they did not believe that the appellant required any conditions to assist him to comply with the law. While the appellant’s conviction is a reasonable reason to have concerns about the appellant’s suitability for a licence, this cannot be viewed in isolation, separate from the fact that the appellant has served his time and been released without conditions. It appeared from Ms. Cadeau’s evidence that the Registrar may be concerned that the appellant’s past conduct might be repeated on the job. However, the factors set out in paragraph 37 are evidence in my view that this is unlikely.

39In addition, the appellant has lined up a job in a location where there are cameras, and where both security and a Registrar’s office are close by. His parole officer confirms that he has the support of his family and friends. All of these factors taken together will mitigate any chance that he will not comply with the law. The Registrar’s concern that there may be minors in the back stretch is not a reasonable ground on which to refuse the applicant’s licence in light of the other evidence that he is considered to be a one-time offender and in light of his successful (and voluntary) completion of the sex offender program.

40The appellant also has the support of his roommate and his employer, both of whom view him as dedicated to his work with horses, trustworthy and hard-working. Neither of them gave any evidence that supported a finding that the appellant will not act in accordance with the law, or with integrity or honesty or in the public interest.

41In reaching my decision I do not in any way minimize the appellant’s past behaviour. However, the parole board determined, based on the evidence before it, that he was a one-time offender. In addition, the psychologist determined he was at low risk to reoffend. The Registrar has not referred to any other specific concerns about how the appellant might act as a licensee.

42In reaching my conclusion, I have considered both the appellant’s failure to disclose his 2007 conviction and the appellant’s conviction for luring. Given the low risk that the appellant will reoffend in respect of the luring charge, and given my finding with respect to the appellant’s failure to disclose his 2007 conviction, there is little evidence supporting reasonable grounds to believe that the appellant will not, when acting as a licensee, act in accordance with the law, or with integrity or honesty or in the public interest.

Decision and Opportunity to make Submissions on Possible Terms

43Section 20(6) of the Act permits me, after holding a hearing, to set aside the proposed order and direct the Registrar to take the action that the Tribunal considers the Registrar ought to take to give effect to the purposes of this Act. With that authority, I have decided to order the Registrar to set aside the proposed order to refuse to issue a licence and order the Registrar to issue the appellant a licence, but because the Registrar did not provide me with any terms upon which the licence should be issued, and terms may be appropriate, the parties have until December 1, 2018 to either agree to terms, or to provide me with submissions, after which time I will issue an order, including any terms agreed to or ordered by me.