Appeal from the Notice of Proposed Order to Refuse to Issue a Licence under the Horse Racing Licence Act, 1992, S.O. 1992, Chapter 24 and Regulation, as amended
Between:
Alain Filion
Appellant
and
Registrar, Alcohol, Cannabis and Gaming Regulation and Public Protection Act, 1996
Respondent
DECISION AND ORDER
ADJUDICATOR:
Matthew M. Létourneau, Member
APPEARANCES:
For the Appellant
For the Respondent
Heard by Videoconference:
Alain Filion, self-represented
Rob Sidhu, Counsel
January 13, 2021
Overview
1The appellant applied for a licence as a Driver and Trainer under the Horse Racing Licence Act, 2015 (the “Act”) in June 2020.
2On August 25, 2020, the respondent issued a Notice of Proposed Order (“NOP”) to Refuse to Issue a Licence. The appellant appealed this NOP to refuse his application for licensure. The NOP’s grounds for the refusal include the appellant’s lengthy and serious history of criminal activity between 1990 and 2020. The appellant presented evidence that his recent participation in Quebec’s horse racing industry has been an honest effort in making a living and that he has broken with his criminal past following a heavy sentence of incarceration in the United States for drug trafficking.
3I find that the Registrar has established that there are reasonable grounds to believe that, based on the appellant’s past conduct, he will not act in accordance with the Act and with honesty and integrity or in the public interest. As a result, I confirm the Registrar’s proposed refusal of the appellant’s applications for a Driver and Trainer’s licence under the Act.
Hearing
4A bilingual video conference hearing proceeded on January 13, 2021. A French-English interpreter was present to translate between the appellant and the respondent. The Tribunal heard the parties directly in the language of their choice without translation. It was not clear whether the appellant had requested French services from the Registrar, but I would note that this is open to him in the future pursuant to the French Language Services Act, RSO 1990, c. F.32.
5The appellant called three witnesses, Bill O’Donnell, Murielle Thomassin and himself.
6Mr. Sidhu, counsel for the respondent, called Daryll Heasman, and Lisa Hocking.
7At the start of the hearing, the parties agreed to exclude the witnesses.
Issue
8The issue in the appeal is whether there are reasonable grounds to believe that the appellant will not act in accordance with the law, or with integrity, honesty or in the public interest, having regard to his past, as per s. 14(a) of the Act.
Result
9The Registrar established at the hearing that there are reasonable grounds to believe that the appellant will not act in accordance with the law, or with integrity, honesty or in the public interest, having regard to his past conduct of the appellant. Accordingly, Tribunal directs the Registrar to carry out its proposal.
Law
10I considered the following provisions under the Act:
Licences, other persons involved in racing
10 No person shall, with respect to horse racing in any of its forms, act as an owner, trainer, driver, jockey, apprentice jockey, groom, jockey’s agent, jockey’s valet, exercise rider, tradesperson, horsepersons’ association, veterinarian or in any capacity provided for in the regulations unless the person holds a licence for that purpose.
Refusal to issue licence or renewal
14 The Registrar shall refuse to issue a licence to an applicant or to renew the licence of 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;
Order of Tribunal
20(6) After holding a hearing, the Tribunal may by order,
(a) confirm or set aside the proposed order.
(b) 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.
Discretion of Tribunal
(7) In making an order, the Tribunal may substitute its opinion for that of the Registrar.
Conditions of order
(8) The Tribunal may attach the conditions to its order or to the licence that it considers appropriate.
Further applications
23 (1) No person who is refused a licence or renewal of a licence or whose licence is revoked may apply to the Registrar for a licence until at least two years have passed since the refusal or revocation.
11“Reasonable grounds for belief” require something more than mere suspicion but something less than the standard applicable in civil matters (sometimes described as “more likely than not”). Reasonable grounds will exist where there is an objective basis for the belief which is based on compelling and credible information: (Ontario (Alcohol and Gaming Commission of Ontario) v. 751809 Ontario Inc. (Famous Flesh Gordon’s), 2013 ONCA 157.
Positions of the Parties
12The Registrar denied issuance of the appellant’s licences on the grounds that he will not act in accordance with the law, with integrity, honesty or in the public interest. The Registrar considered the appellant’s criminal history, including the length, number and escalation of criminal convictions to be sufficient evidence to show that the grounds for refusal are reasonable. These activities demonstrate, according to the Registrar, that past criminal sanctions did not deter the appellant and that the appellant participated in illicit activity that required planning and pre-meditation. These past offences would in turn create unreasonable risks to the public should the appellant be granted his licences.
13The appellant submitted that he has been honest and transparent in conducting himself in the past several years in the Quebec horse racing industry and that this is a sign that he has broken free from criminal activity. He was honest and open about his criminal past and accepted that he had done wrong. He stated that he served all previous sentences and has sought to make an honest living for his family by participating in the horse racing industry, which he abandoned in his youth. He submitted evidence of a clean track record in his Quebec racing activities and witness testimony from other individuals in the horse racing industry attesting to his good character.
14He submitted that the crimes he committed were unrelated as they had to do with dealing with cigarettes, marijuana and cocaine and nothing to do with the horse racing industry. He submitted that other drivers and trainers have committed worse offences then him and have come off with lighter results from the Registrar. He submitted that at the very least, he should be granted a trainer’s licence to he can begin participating in racing in Ontario.
The Appellant’s Past Conduct
15The Tribunal must assess whether the Registrar has established that there are reasonable grounds to believe that the appellant will not act in accordance with the law, or with integrity, honesty, or in the public interest. The Registrar submitted that it has discharged its onus. It suggested that the appellant would never be suitable for licensure under the Act given his lengthy criminal record.
16Lisa Hocking from the Alcohol and Gaming Commission of Ontario submitted that she looks for a continuous period of compliance in deciding whether to issue licences. She testified she does not see continuous compliance based on the appellant’s criminal record extending back to 1993. She explained that she conducts reviews by going over any documents that can show past behaviour, such as Equifax, Highway Traffic Act convictions, police information and investigation reports. In this case, she said the concerns did not have to do with his horseracing background, but rather, his criminal background.
17The Appellant confirmed that he became involved with smuggling cigarettes and thefts due to being immature in the 1990s. He was often in need of money and had become involved with a bad crowd. He explained that he continued his criminal activities because the sanctions in Canada were lenient and did not deter him. He continued his activities because he continued to make money and became involved in prison with criminally inclined persons.
18The evidence submitted by the appellant from the Société québécoise d’information juridique (“SOQUIJ”) regarding the appellant’s criminal past shows that he has had 8 convictions consisting of tobacco smuggling charges, robbery, trafficking of marijuana and cocaine. The appellant explained that his first convictions in the 1990s were in relation to tobacco smuggling in the Cornwall and Southern Quebec area. He was charged and initially received fines for these convictions. He states he chose not to pay these fines and that resulted in his first periods of imprisonment. He later became involved in trafficking marijuana in the Windsor area. He stated that he lived with a bad crowd and that he received convictions for these activities. There was some contradictory evidence regarding a violent robbery conviction received by the appellant. The Registrar submitted evidence that the appellant had directly conducted the robbery, although the appellant states his role was limited to being a driver while his associate committed the robbery. At the very least, I find the appellant did not deny his involvement in this violent crime and this was an escalation of criminal conduct beyond what he had previously been involved with.
19Finally, in 2014 he was arrested in the United States for attempting to traffic a large quantify of cocaine into Canada. The Registrar submitted that there was an organized crime element in this offence that suggested that the appellant was involved in organized crime due to the nature of the crime. The appellant explained that he was acting as a mule for associates from Florida and that any drug trade of that size involved organized crime at some level, but that he was not directly associated with or a part of any organized crime group. He stated that he was convicted in 2015 and received a very severe sentence, which he largely served in the United States before being transferred to Canada to complete. He submitted that this period of incarceration was much more severe than anything he had experienced in Canada and that, having almost lost his family and his contacts, he decided to end his criminal activities since completing his sentencing requirements in 2018.
20The Registrar submitted that the appellant’s criminal behaviours were all crimes intended to make fast money and to avoid the law and regulations. It submitted this would continue to be the case if he were granted licences in the horseracing industry. The Registrar’s representative stated that this past conduct gives 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.
21The appellant did not deny his criminal record. He submitted that he was in the horse business when he was young, but that his life took a turn for the worse. He stated that his criminal past was more to do with petty crime in the 1990s which escalated to the serious felony conviction in the United States. Since his last jail sentence in Florida, which he insists had the intended rehabilitative effect on his life, he has returned to the horse racing industry in Quebec. He submitted that he seeks to ensure he lives his life with integrity and honesty while providing for his family. He argued that he has served his debt to society and he is trying to move forward with a legitimate livelihood with a career in horse racing.
22The appellant testified that his recent activities in the Quebec’s horse racing industry should demonstrate that his criminal past is not an indication of how he would conduct himself if given a licence as a driver or a trainer in Ontario.
23In this case, the appellant’s witnesses confirmed that he has conducted himself with honesty and integrity in the Quebec horse racing industry. He has been racing at the racetrack in Trois-Rivières. He showed evidence of his racing record log and I accept that he has not received any infractions stemming from his recent racing activities in Quebec. His family did not attend the hearing, but I accept that members of his family have been involved in the horse racing industry for some time given the appellant’ evidence. I accept that the appellant takes the industry serious and does want to make an honest livelihood. I note that the investigator, Darren Heasman, called by the Registrar, commended the appellant for being honest and open with him in discussing his criminal past with him as part of the Registrar’s investigation.
24The Tribunal heard evidence from Murielle Thomassin, General Manager of the racetrack in Trois-Rivières that the appellant has been honest and showing integrity during his participation in racing activities over the last two years. She learned of his criminal past directly from the appellant a few days before his hearing and did not have concerns given his behaviour.
25The appellant provided evidence regarding the decision by the Quebec horse racing authority to provide his licenses to him after an appeal. It appears that in Quebec, a licensee is eligible for a licence after 5 years have passed since their last conviction. I accept that the appellant obtained his licence in Quebec after this period elapsed. However, this rule does not apply in Ontario. Here, the question is not whether a prescribed period of time has elapsed since a proposed licensee’s last conviction. Instead, as noted, the issue is whether the proposed licensee’s past conduct gives reason to believe that they will not act appropriately as a licensee. Of course, in deciding that issue, the length of time that has elapsed since the proposed licensee’s last conviction will typically be a highly relevant factor in the analysis.
26Mr. O’Donnell, the representative of the Central Ontario Standardbred Horse Association provided a character reference for the appellant. He stated that that the appellant has shown honesty and integrity in the horse industry over the past year during his Quebec racing activities. He had reviewed the racing record of the appellant and personally knows his family members who he confirmed are in the industry. He said he had no concerns given his direct involvement and review of the appellant’s racing profile.
27The Registrar demonstrated in cross-examination that the appellant’s interactions with Ms. Thomassin and M. O’Donnell were quite limited. They had general interactions with him but did not know him closely. Also, they had only recently come to learn about his criminal past.
Reasonable Grounds to Believe
28Having considered the evidence before me, I conclude that the Registrar has established that the appellant’s past conduct gives reasonable grounds to believe that, when acting as a licensee, the appellant will not act in accordance with the law, with integrity, honesty, or in the public interest.
29In coming to this conclusion, I have considered the appellant’s poor past conduct – specifically his lengthy and serious criminal record. But I have also considered the appellant’s positive past conduct. He obviously has some support in both Ontario and Quebec racing, as demonstrated by his character witnesses. Moreover, I was impressed that the appellant has participated in Quebec’s industry for several years without incident. This is strong evidence in favour of licensure.
30However, I am persuaded in my conclusion by the significance of the appellant’s criminal record, which dates back over 20 years and culminates in a very serious offence. I agree with the Registrar that the appellant’s criminal record shows a disregard for the law. While I accept the appellant’s sincerity regarding his intention to break from his criminal past to become a productive member of society, and was impressed that the appellant has participated in Quebec’s racing industry without incident for several years, I am satisfied at this point in time that the Registrar has discharged its onus. I find that there is objective, credible and compelling evidence that gives reasonable grounds to believe that the appellant will not act in accordance with the law or with integrity, honesty, or in the public interest.
31The appellant seeks to participate in a highly regulated industry. This is a privilege rather than a right. There is a clear public interest in ensuring that the regulations and rules of racing are respected by licensees to protect the animals along with other participants in the industry. As noted, the appellant has established positive past conduct that militates in favour of granting a licence. However, the seriousness of the appellant’s criminal record, at this point in time, militates against a licence such that there are reasonable grounds for belief. In my view, in the circumstances of this case, insufficient time has elapsed since the appellant’s last criminal conviction, which was very serious, for the Tribunal to conclude otherwise.
32I would note that I disagree with the Registrar to the extent that it submits that a person in the appellant’s circumstances can never be suitable for licensure. Criminal convictions are highly relevant in terms of determining how a person will govern themselves in a regulated activity, which typically comes with numerous rules, obligations and heightened responsibility. Depending on the activity for which a licence is sought, there are likely some criminal convictions that by their very nature would disqualify a person from ever being found suitable for licensure. I do not consider that to be the case here.
33In my view, the appellant is on the right path to his goal of being licensed to participate in Ontario’s racing industry. The evidence establishes that he has worked in the Quebec industry for several years without incident. As noted however, in light of the seriousness of his criminal record, there simply has not been enough time since he ceased criminal activity and discharged his sentence requirements to support a finding that the appellant will conduct himself in accordance with the Act. If the appellant were to reapply down the road, the additional passage of time consisting of good conduct might very well tip the scales in favour of the appellant being licensed.
34I do note, however, that s. 23(1) of the Act states that the refusal of the appellant’s licences bars him from reapplying for at least two years. The evidence of the Registrar’s witness was that if the appellant reapplies after this period, a fresh review would take place.
Jurisdiction to Make an Order
35The Registrar submitted that if the Tribunal determines that there are reasonable grounds for belief, it has no jurisdiction to make an order other than to direct the Registrar to carry out its proposal. I agree.
36Unlike certain other similarly-structured statutes, the Act gives the Registrar no discretion on an application for a licence to impose any other measures, such as conditions or a suspension, where it concludes that one or more grounds in s. 14(1) of the Act are made out. Section 14(1) of the Act appears to have been deliberately worded this way – it is clear that if a threshold ground is established, the Registrar shall refuse to issue the licence. If the matter were a revocation of an existing licence under s. 19 of the Act, the Registrar would have had alternative options available to it, including a proposal to add conditions or a proposal to suspend the licence pursuant to ss. 16 and 19 of the Act. In my view, following a hearing, the Tribunal only has the discretion to do something that the Registrar had the discretion to do: ss. 20(6)(b)-(7) of the Act. Because the Registrar only has the discretion to refuse to issue a licence if a threshold ground is established, the same applies to the Tribunal. As noted, this would not be the case if the proposal were to revoke an existing licence.
Order
37I confirm the Registrar’s proposal to refuse the appellant’s licences as a driver and trainer.
LICENCE APPEAL TRIBUNAL
Matthew M. Létourneau, Member
Released: May 14, 2021