Appeal from a Notice of Proposal of the Registrar, Horse Racing Licence Act, 2015, S.O. 2015, c.38, Sch. B – to Refuse a Licence
Between:
Steven J. Torresan
Appellant
-and-
Registrar of Alcohol, Gaming and Racing
Respondent
DECISION and ORDER
ADJUDICATOR:
Stephen Scharbach, Member
APPEARANCES:
For the Appellant:
Steven J. Torresan, Self-Represented
For the Respondent
Rabinder (Rob) Sidhu, Counsel
Heard at Toronto, Ontario:
July 26, 2018
A. Overview
1The appellant, Mr. Steven J. Torresan, applied to the Registrar of Alcohol Gaming and Racing (“Registrar”) for a licence as a “Groom – Thoroughbred” under the Horse Racing Licence Act, 2015.
2The Registrar issued a Notice of Proposal to Refuse his application on the basis that there are reasonable grounds to believe that when acting as a licensee, he will not act in accordance with the law, or with integrity, honesty, or in the public interest, having regard to his past conduct.
3The past conduct upon which the Registrar relies is the appellant’s several criminal charges and convictions, and his failure to fully disclose them in his application.
4The appellant appeals the Registrar’s proposal to this Tribunal. He essentially states that he did not intentionally fail to disclose his criminal convictions on his application and the conduct that led to those convictions was caused by a medical condition - a mental illness - which at the time was not being treated effectively.
5He states that since 2015 his illness has been effectively treated by a psychiatrist, he is now symptom-free, and there has been no re-occurrence of conduct that would lead to criminal charges. Essentially, the appellant feels that his past conduct no longer provides reasonable grounds to refuse his application.
B. Issue
6Having regard to the appellant’s past conduct, are there reasonable grounds to believe that when acting as a licensee, the appellant will not act in accordance with the law, or with integrity, honesty, or in the public interest?
C. Decision
7The appellant suffers from a medical condition that, if left untreated or if treated ineffectively, will cause symptoms that in the past have resulted in the appellant engaging in violent conduct.
8Since July 2015 the appellant has received effective treatment for his condition. This treatment has been effective in that his condition is currently in remission and he has remained symptom free for over three years.
9In my view the appropriate disposition is to grant the appellant the licence applied for subject to conditions that require the appellant to submit to the Registrar, every three months, written confirmation from his treating physician that he remains in treatment and is symptom free.
D. The Legal Framework
10The Registrar’s proposal to refuse the appellant’s application was made under the authority of the Horse Racing Licencing Act, 2015. (“Act”).
11The Act and its regulations attempt to regulate horse racing and the operation of race tracks and off-site betting facilities in Ontario to ensure that horse racing is carried out honestly and in accordance with the law and the Rules of Racing.
12Regulation of the horse racing industry is accomplished in part by restricting participation in the industry to those who are licenced. Licences issued by the Registrar are required by anyone acting as a trainer, driver, jockey, apprentice jockey, groom, jockey’s agent, jockey’s valet, exercise rider, tradesperson and veterinarian.
13To obtain a licence an applicant must apply to the Registrar and truthfully answer a series of questions designed to provide information to enable the Registrar to assess the applicant’s suitability.
14Those questions include whether the applicant has ever been found guilty of any offence, or has any pending charges. Depending on the answers to those questions, the Registrar may conduct inquiries, including a criminal record check if appropriate, to determine whether an applicant is suitable to hold a licence.
15If the Registrar proposes to refuse an application, the Act (s. 20(1), 20(2)) requires the Registrar to give the applicant written notice of the proposal setting out the reasons and the applicant’s right to request a hearing by this Tribunal.
16If a hearing is not requested, the Registrar may carry out the proposal and refuse the licence. If, as in this case, a hearing is requested, the Tribunal shall hold a hearing. At a hearing, the Registrar has the onus to establish the facts supporting the proposal on a balance of probabilities.
17After holding a hearing, the Tribunal may, by order, direct the Registrar to take the action that the Tribunal considers the Registrar ought to take to give effect to the purposes of the Act. The Tribunal may substitute its opinion for that of the Registrar, and may attach conditions to the licence as it considers appropriate (s. 20(6), 20(7), 20(8)).
E. The Registrar’s Proposal
18The Registrar proposes to refuse the appellant’s application under s. 14 of the Act which states:
The Registrar shall refuse to issue a licence to an applicant …if
(a) There are reasonable grounds to believe that, when acting as a licensee, the applicant will not act in accordance with the law, or with integrity, honesty, or in the public interest, having regard to the past conduct of the applicant…
19The appellant applied for a licence as a groom. According to the evidence, a groom is assigned to take care of 4-6 racehorses and is responsible for feeding, watering, bathing, rubbing and mucking out stalls.
20Grooms work in the “backstretch” of the racetrack – a fenced-in, secured area containing horse barns and often a large number of horses. Grooms work in tight quarters and must co-ordinate their activity with jockeys, trainers and walkers.
21The Registrar states that the grounds which afford reasonable belief that the appellant will not act as required when acting as a groom in are:
(i) The appellant was convicted of crimes involving violence in 2005, 2012, 2013 and 2016.
(ii) The appellant failed to properly disclose or particularise all of his convictions and charges in his application.
22My findings with respect to those grounds is as follows:
F. The Criminal Convictions
23Between 2005 and 2016 the appellant was convicted of several crimes involving violence. However, the appellant suffers from schizophrenia and the evidence indicates that when the incidents resulting in the convictions occurred he was either not being treated for his condition or not being treated effectively.
24The appellant’s position is that the conduct that led to the convictions were caused by the symptoms of his medical disorder. Since approximately July 2015, he has been treated effectively, his condition is in remission, he has remained symptom free, and there have been no other further incidents.
25According to the appellant, he intends to continue treatment with his current psychiatrist indefinitely. He hopes that under his doctor’s care his condition will remain in remission and there will be no further incidents like the ones relied upon by the Registrar to deny his licence application.
(a) The 2005 Convictions
26The appellant has no criminal record predating January 2005.
27In January 2005, he was suffering from schizophrenia although he was not yet diagnosed and was receiving no treatment. According to a detailed Hospital Report to the Ontario Review Board (“Hospital Report”), written by the appellant’s clinical team in August 2009, the appellant was in a delusional state when he stole two knives from a store, randomly stabbed a person in the arm, and chased him with the knives. The appellant was quickly arrested and charged with several offences including attempted murder, aggravated assault, assault with a weapon, and theft.
28In March 2005, the appellant was convicted of all of the charges but found not criminally responsible due to his mental disorder. He was detained in the Centre of Addiction and Mental Health (CAMH) in Toronto where he was diagnosed as suffering from schizophrenia and began to receive treatment.
29In October 2007, the appellant was discharged from CAMH and moved into a subsidised apartment. In August 2009, the appellant’s clinical team reviewed the history of his illness and treatment and concluded that his disorder was in remission. In the opinion of the clinical team, although the appellant would need to take anti-psychotic medication indefinitely, he did not pose a risk to the public, and was entitled to an absolute discharge.
30A hearing before the Ontario Review Board (“ORB”) took place in October 2008. Despite its conclusion that the appellant continued to represent a threat to the public, it ordered that the appellant be discharged subject to several conditions.
31That disposition remained in place until January 2010, when the ORB granted the appellant an absolute discharge.
(b) The 2012 – 2016 Convictions
32Between September 2012 and July 2016, the appellant was convicted of the following:
(i) Assault causing bodily harm as a result of an incident on September 15, 2012. Given a suspended sentence and 18 months’ probation.
(ii) Assault and assaulting a police officer as a result of an incident on May 23, 2013. Given a suspended sentence and 18 months’ probation.
(iii) Assault of a peace officer (correctional officer) on May 27, 2013. Given a conditional discharge and 6 months’ probation.
(iv) Mischief - damaged the windshield and mirrors of two vehicles on July 7, 2015. Peace bond imposed.
(v) Committed an assault with weapon (a walking stick) and failing to comply with the peace bond by possessing a weapon (the walking stick) on July 30, 2015. Sentenced to time held in custody (12 days in protective custody) and 18 months’ probation.
33The appellant testified at the present hearing that when these offences occurred he was seeing a psychiatrist and being treated with medication that was not effective. He was suffering from the symptoms of his condition which led to the conduct that resulted in the convictions.
(c) Appellant Begins to be Effectively Treated
34According to the appellant, just after the July 2015 incidents, he began treatment with Dr. J.S., a psychiatrist, and has continued to see him on a regular basis up to the present time. Dr. S. is the Medical Director, Mental Health and Addiction Program, and Chief, Department of Psychiatry, at the St. Joseph’s Health Center in Toronto.
35The appellant testified that he presently sees Dr. S. on a monthly basis. He states that Dr. S. has treated him with a combination of medications that have been effective and have rendered him symptom free. He states that previous treating psychiatrists seemed to lack time, provided little counselling, and prescribed medications in a perfunctory way. According to the appellant, Dr. S. takes the time to talk with him and appears to have insight into his condition and how to treat it effectively. The appellant intends to continue seeing Dr. S. indefinitely and follow the medication regime prescribed by him.
36The appellant’s testimony was confirmed by a letter written by Dr. S. dated June 1, 2017. It appears that this letter was written in contemplation of the first scheduled hearing date before this Tribunal – September 26, 2017. The hearing was adjourned on two occasions before the present hearing took place on July 26, 2018.
37In his letter Dr. S. stated:
I have no reservations in confirming that Mr. Torresan is currently stable in terms of medical condition and that this stability renders him safe to perform the role and duties as described above [hot walker and/or groom].
Diagnosis – schizophrenia in full symptomatic remission…
Current Symptoms – complete absence of delusions, hallucinations, misperceptions, thought disorders and negative symptoms. Currently coherent, logical, excellent insight and exhibiting excellent judgement.
Prognosis – while maintained on treatment the prognosis is excellent
Additional Comments: Mr. Torresan is a thoughtful individual that has excellent insight into his mental disorders and exercises excellent judgment in managing his health. Beyond being fully adherent to all treatment recommendations he pursues additional opportunities to improve further.
38With respect to the appellant’s behavior in July 2015, that resulted in the 2016 convictions, Dr. S. stated:
Mr. Torresan unfortunately suffered a relapse 1-2 years ago due to our decision to change his medication. The new medication failed and the patient relapsed. In the context of the relapse the patient was controlled by his symptoms which led to behaviour which is inconsistent with his character. His current medication regimen has taken him to symptom remission.
39Dr. S.’s comments regarding the appellant are consistent with my observations of Mr. Torresan at the hearing. He was self-represented and appeared logical, sincere and articulate.
40Mr. R.F. was the Manager of Licensing at the Alcohol and Gaming Commission of Ontario when the decision was made to deny the appellant’s application and he testified at the hearing.
41He stated that he made the decision to deny as the Registrar’s delegate. He testified that his decision was based solely on the appellant’s criminal record and he had no information about the appellant’s medical condition.
G. Failure to Disclose or Particularise Convictions and Charges in Licence Application
42The Registrar alleges that the appellant failed to disclose all of his convictions and charges on his April 30, 2016 licence application and that represents another instance of past conduct that affords reasonable grounds for belief that the appellant will not carry out licenced activities in accordance with law, or with integrity and honesty, or in the public interest.
43I do not agree. The appellant was asked on the application whether he had any charges pending and he truthfully answered “yes”. At that point, the charges laid as a result of the July 2015, incident had not yet resulted in convictions. The application form did not ask that he describe or particularise his pending charges and consequently the appellant provided no details. He cannot be criticized for not providing information that was not requested.
44He was also asked whether he had been convicted of any offences and to provide details of his convictions including the date, place, nature of conviction and disposition.
45At the time he signed the application (April 30, 2016), the appellant had been convicted of the following:
Attempted murder and related charges - convicted March 11, 2005
Assault causing bodily harm – convicted December 5, 2012
Assault, Assault of a police officer – convicted September 6, 2013
Assault of a peace officer – convicted September 11, 2013
46The appellant disclosed on his application the attempted murder conviction (although not the convictions for the related offences), the assault causing bodily harm, and the assault of a peace officer, although he referred to the latter conviction as simply an assault. The appellant failed to disclose his September 6, 2013 conviction for assault and assault of a police officer.
47The Ontario Divisional Court has stated that relevant question in circumstances such as this is not merely whether an applicant made a false or misleading statement but whether the applicant did so knowingly.1
48According to the appellant, the precise details of his convictions are unclear due to his mental state at the time the incidents occurred and as a result he unintentionally failed to list all convictions.
49I note that the assault of a police officer and assault of a peace officer are similar charges that were laid within days of each other and he was convicted of them on two separate days 6 days apart. In these circumstances the appellant’s explanation that he unknowingly left out one of those convictions because his memory is unclear seems credible.
50The appellant’s testimony at the hearing conveyed sincerity and honesty. He told his story in a forthright manner, neither exaggerating facts positive to him nor minimising facts unfavourable to him. I accept the appellant’s testimony that he answered the question about his convictions to the best of his ability and did not knowingly provide the Registrar with misleading or incomplete information.
H. Having regard to his past conduct, are there reasonable grounds to believe that when acting as a licensee, the appellant will not act in accordance with the law, or with integrity, honesty, or in the public interest?
51The central issue in this case is whether, having regard to the appellant’s past conduct, there are reasonable grounds to believe that when acting as a licenced groom, the appellant will not act in accordance with the law, or with integrity, honesty, or in the public interest.
52In my view there are reasonable grounds to believe that the appellant will not act in accordance with the law although I have no concerns about his honesty or integrity. The appellant’s past conduct indicates that if his condition is not treated or not treated effectively his symptoms may lead to violent conduct. However, the appellant has been treated effectively for approximately three years, his condition is in remission, and he has been symptom free. In my view any risk posed by granting the appellant a licence can be managed by the conditions set out below.
53The Registrar raised two aspect of the appellant’s past conduct that he argues support denial of the application – the conduct that resulted in the criminal convictions, and the appellant’s alleged failure to disclose and particularise his criminal convictions and charges on his initial application.
54With respect to the failure to disclose and particularise his criminal convictions/charges, as indicated above, the appellant was asked on the application form whether there were charges outstanding and he truthfully answered “yes”. He was not asked to particularise the charges and he cannot be faulted for not doing so. With respect to convictions, the appellant was asked to disclose them and provide particulars. Although he failed to disclose all of them I have concluded that he did not do so knowingly.
55This leaves the question of whether the past conduct that led to the convictions affords reasonable grounds to believe that the appellant will not carry out his activities as a groom in accordance with the law, or with integrity, honesty, or in the public interest.
56In my view the evidence establishes that the appellant suffers from a medical condition – a psychiatric disorder that, when left untreated or treated ineffectively, causes symptoms that in the past have led to violent behaviour.
57The Hospital Report makes it abundantly clear that the appellant’s psychiatric disorder was the cause of the incident in 2005 which led to his first convictions. The appellant was receiving no treatment when that incident occurred.
58The appellant’s last convictions in 2016, after incidents in July 2015, were caused, according to Dr. S., by a new medication that proved to be ineffective in treating the appellant’s medical condition, and led to a relapse.
59According to the appellant, the incidents that led to the convictions in 2012 and 2013 are similarly attributable to ineffective treatment and medications. Although I only have the appellant’s testimony to support that, it is certainly consistent with the medical opinions rendered both before and after those incidents.
60There is no evidence that the appellant has engaged in any inappropriate behavior since his treatment with Dr. S. began approximately three years ago. I therefore conclude that the appellant presently poses little risk as long as he continues to be treated under the watchful care of his psychiatrist and is being treated with an effective medication.
61The Registrar’s counsel pointed out that the appellant was sentenced to 18 months’ probation after being convicted on charges arising from the July 2015 incident. That term of probation expired recently on July 2, 2018, and counsel argued that there has been an insufficient period of positive unsupervised conduct to justify issuance of a licence.
62In my view, that argument does not apply in the present circumstances. The appellant’s objectionable past conduct occurred because his condition was not being treated effectively and not because of a lack of integrity or propensity to criminal behaviour. The appellant’s condition requires continual monitoring and that will likely continue indefinitely. Although supervision by a probation officer has now ceased, the appellant will continue to be supervised by his physician and there will be no period of unsupervised conduct, at least for the foreseeable future.
63I have concluded that the appellant should be granted as licence as a groom under conditions. The appellant testified that he sees Dr. S. on a monthly basis and intends to continue to do so. I consider it appropriate to attach conditions to the appellant’s licence that require him to continue to be treated by Dr. S., follow the treatment regime prescribed by him, and provide the Registrar with a letter from Dr. S. before a licence is issued, and every three months afterwards, confirming that the appellant is following all treatment recommendations and is free of the symptoms of his condition.
64In my view this strikes an appropriate balance between the appellant’s interest in being granted a licence and the public interest. Should the appellant fail to meet those conditions, or the Registrar receives information that indicates that the appellant poses a risk, he has the ability under the Act to immediately suspend the appellant’s licence if he considers that step necessary in the public interest (Act, s. 21(1)).
Order
65Pursuant to s 20(6) and 20(8) of the Act, and subject to all other regulatory requirements, I direct the Registrar to issue a licence as a groom to Steven J. Torresan if, by October 31, 2018, the appellant provides to the Registrar a current letter signed by Dr. J.S. confirming that:
Mr. Torresan is a patient in Dr. S.’s care,
Mr. Torresan is following the treatment regime recommended by Dr. .S.,
The treatment regime is effective such that Mr. Torresan’s condition is in full remission and he remains symptom free.
66If a licence is issued to Mr. Torresan it shall be subject to the following conditions:
Mr. Torresan shall submit to the Registrar, within three months of the issuance of the licence and every three months after that, a letter signed by Dr. S. confirming that:
(a) Mr. Torresan continues to be a patient under Dr. S.’s care,
(b) Mr. Torresan continues to follow the treatment regime recommended by Dr. S.
(c) The treatment regime is effective such that Mr. Torresan’s condition is in full remission and he remains symptom free.
LICENCE APPEAL TRIBUNAL
Stephen Scharbach, Member
Released: September 11, 2018
Footnotes
- Registrar, Motor Vehicle Dealers Act, 2002) v. Vernon, 2016 ONSC 304 (Div. Ct.)