Administration of the Ontario Racing Commission v. Douglas Berkeley et al., 2002 CanLII 63019

IN THE MATTER OF THE RACING COMMISSION ACT, R.S.O. 1990, c.R.2

AND IN THE MATTER OF THE RACING COMMISSION ACT, 2000, S.O. 2000, c.20

AND IN THE MATTER OF RULE 6.04 OF THE RULES OF STANDARDBRED RACING

A motion with respect to the admissibility of evidence and the Charter of Rights and Freedoms was brought by Douglas Berkeley, Leslie Berkeley, Walter Dixon, Matthew Moeykens, Samuel C. Holmes, David Harrington, Robert Troy Vlaar, David Schaffler, Jennifer Unger and Todd Gray. The motion was heard by the panel of the Ontario Racing Commission on January 17 and 23 as part of its hearing in this matter. The panel was comprised of Chair Stanley Sadinsky and Commissioners Dr. Bruce Duncan and Ernest Nock.

Counsel Frank Roth appeared on behalf of Douglas Berkeley, Leslie Berkeley, Punky T Stables, Walter Dixon, Matthew Moeykens, David Harrington, Samuel C. Holmes, Robert Troy Vlaar, David Schaffler, Todd Gray and Jennifer Unger. Counsel Robert Burgess appeared on behalf of Alan Crost and Pamela Crost. Counsel Lynda Tanaka appeared on behalf of the Administration.

The panel ruled on January 28, 2002, that the evidence was admissible. The Administration was not precluded on Charter grounds not as a result of any principle of administrative law from tendering the evidence. The Reasons for the panel’s ruling are attached.

DATED this 30th day of April, 2002.

Jean Major

Executive Director

REASONS FOR DECISION

We are ready to provide our decision with respect to the Motion that was argued before us. At the outset I want to thank counsel for their considerable assistance in their submissions and in providing us with a very comprehensive outline of the authorities.

Counsel for all the applicants, the licensees at risk in this proceeding, have brought a Motion for an Order pursuant to Sections 24(1) and 24(2) of the Canadian Charter of Rights and Freedoms to exclude the statements given and the documents produced by their clients and by Rene Dixon in response to a request for information and materials made by the Administration of the Ontario Racing Commission (the "Administration").

In addition, the moving parties seek to exclude any oral statements and/or any notes of oral statements that may also have been provided. In support of this Motion, an Affidavit of Bernadette Escujuri with Exhibits attached was filed over the objections of counsel for the Administration. This Affidavit was received and considered on the Motion. Counsel for the Administration was given leave to cross-examine Escujuri, which she did. In addition, Mr. Roth sought and was granted leave to call Troy Moffat to give viva voce testimony in support of the Motion.

The basic argument made by Mr. Roth and supported by Mr. Burgess was that all of the statements given and documents produced to the investigators of the Administration were made under compulsion of Statute and Rule and were not freely given. He argues that this contravenes sections 7, 11(c), 11(b) and 13 of the Charter.

He also attacks the Rule that permits investigators to require licensees to comply with requests for statements and documents as contravening the Charter but he relies to a greater extent on the argument that even if the Rule in question is not in contravention of the Charter, any evidence that flows from the licensees in response to such requests, is inadmissible in subsequent prosecutions under any of the Rules.

The evidence on this Motion clearly discloses that the Administration wrote to each of the licensees, except for Jennifer Unger and Todd Gray, and required them to attend an interview and to produce specific documents. The letters, Exhibits B to I, inclusive, to the Affidavit of Escujuri, advise that failure to appear and provide the required documents would be considered a contravention of Rules 6.28 and 6.29 of the Rules of Standardbred Racing and that the Ontario Racing Commission might exercise its right to suspend their respective ORC licenses.

As a result, each of the moving parties and Mrs. Dixon did attend and provide a statement and also did produce documents, except for Unger and Gray. The documents produced can be described as business records relating to their activities in the standardbred horse racing industry. On the basis of the evidence adduced it is clear to us that each of the moving parties only agreed to be interviewed and to produce documents, again except for Unger and Gray, because of the request being made on them.

The request for the information that was ultimately provided was part of an investigation that was being conducted by the Administration in order to determine whether trainer Douglas Berkeley whose trainer's license was under suspension was nonetheless continuing to train standardbred race horses and whether any other party was participating in his alleged wrongful conduct contrary to the Rules. The Administration was also investigating the possibility of hidden ownership of horses.

Licensees of the Ontario Racing Commission do not routinely provide the Administration with such information as a matter of course. Rather, it is only provided when a specific request is made. In fact, the investigation in this case did lead to the charges which are currently before this panel, whether by way of appeal or at first instance. The charges also relate to an alleged hidden trainer and alleged hidden ownership.

The Director of the ORC has either proceeded to or has proposed to impose suspensions of licenses and fines ranging from 3 months to 10 years in the case of suspensions, and $500.00 to $350,000.00 in the case of fines, against the various licensees if ultimately found to be in violation of the Rules. In their prospective applications for licenses, each of the applicants agreed to abide by the Rules of Standardbred racing, to be fingerprinted and to disclose any criminal record that they might have but there is no mention of waiving any rights to advance Charter arguments.

Mr. Roth submits that the following sections of the Charter apply in these circumstances. Section 7 reads as follows:

"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". Section 11(c) which reads as follows:

"Any person charged with an offense has the right not to be compelled to be a witness to proceedings against that person in respect of the offense".

Section 11(b) of the Charter reads as follows:

"Any person charged with an offense has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".

And finally Section 13 of the Charter which reads:

"A witness who testifies in any proceeding has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceeding except in a prosecution for perjury or for the giving of contradictory evidence".

For the purposes of dealing with this Motion, there appears to be four main issues to be determined. First, whether Sections 7, 11 and 13 of the Charter apply at all to the proceedings of the Ontario Racing Commission and particularly to its investigatory powers and, if so, whether the investigations in this case which led to the statements and documents that were secured by the Administration contravened any of the provisions of the Charter.

Second, and this issue is related to the first, even if the Rule permitting the obtaining of statements and documents survives Charter scrutiny, is the evidence obtained admissible in these proceedings or would its receipt contravene any of these Sections of the Charter.

Third, did the securing of such evidence or would the admissibility of such evidence contravene any principles of administrative law, and, fourth, if there has been a Charter violation or contravention of any principle of administrative law, what is the appropriate remedy.

We shall deal with each issue in turn. As to the first issue, it is not disputed that Rules 6.28 and 6.29 being the investigatory Rules in question, were enacted by the Ontario Racing Commission pursuant to the powers contained in the Racing Commission Act, 2000, Statutes of Ontario 2000, Chapter 20 and its predecessor Act. These Rules read as follows:

6.28 "The judges, the Deputy Director of Racing or his or her authorized representatives may interrogate any licensee and may require him or her to make statutory declarations or statements in writing and provide documentary evidence of any agreements or transactions financial or otherwise respecting to any suspected crime or violation of these rules or for any matter that is in event in the opinion of the judges is not in the best interests of racing."

6.29 "Whenever reasonable grounds exist for a belief that any participant can give material evidence that would aid in the detection or exposure of any fraud or wrongdoing concerning racing such participants shall on the order of the judges or other authorized official be compelled to testify by a deposition or affidavit. Failure of any participant to comply will result in immediate full suspension". Mr. Roth's first argues that because the moving parties and Mrs. Dixon were required to provide statements and documents and did so under threat of suspension pursuant to these Rules, there has been a breach of both Section 7 and 11 of the Charter. He argues that these Sections apply to the proceedings of the ORC. As to Section 7, he principally relies on the cases of Regina v. Fitzpatrick, Regina v.White, Thomson Newspapers Limited v. Director of Investigation and Research et al, B.C. Securities Commission v. Branch and R. v. S.(R.J.), all of which are fully reproduced in Mr. Roth's book of authorities.

Mr. Roth also argues that by compelling statements and the production of documents, there has also been a violation of Sections 11(c) and 11(d) of the Charter. In this respect he relies principally on the cases of Regina v. Wigglesworth and Thomson Newspapers Limited v. Director of Investigations and Research et al. Finally Mr. Roth argues that the statements and the documents secured at the investigatory stage cannot be used in evidence in these proceedings and to do so will violate these Sections of the Charter. In support of this argument, he relies on Section 13 of the Charter and the cases of Regina v.Dubois, Regina v. Fitzpatrick, Regina v. White and Regina v. S(J.S.).

We are satisfied that Sections 7, 11(c), 11(d) and 13 may, (and we underline may), apply to the proceedings before the Ontario Racing Commission.

While many of the earlier cases suggested that these and other Charter provisions can only apply to criminal and quasi criminal proceedings (see for example Regina v. Fitzpatrick citing Regina v. Jones, and Regina v. S(R.J.), it now seems clear from the more recent case from the Supreme Court of Canada, Blencoe v. British Columbia Human Rights Commission (2000), 2000 SCC 44, 190 DLR, (4th), 513 that the reach of the Charter extends to situations where there is "state action which directly engages the administration of the justice system".

In our view, this clearly includes the activities of administrative agencies such as the Ontario Racing Commission. It therefore remains to determine whether the Sections of the Charter in question in these proceedings are triggered in the circumstances of this case.

By way of overview it is important to note that Sections 8 through 14 of the Charter refer to specific legal rights enjoyed by individuals and they particularize the kind of instances where an individual may be said to have been denied the right to life, liberty and the security of the person as articulated in Section 7. In addition Section 7 may stand on its own and afford further protection in addition to those described in Sections 8 through 14.

We turn first to Section 13 of the Charter. In our view, Mr. Roth's argument on this Section is without merit. Section 13 applies in situations where a witness testifies in a proceeding and then his or her incriminating evidence is sought to be used in another proceeding. In the first place, the giving of an unsworn statement and the production of documents does not constitute “testimony” which involves giving evidence under oath or affirmation. Second, the information secured in this case during the investigations is not being tendered in "another proceeding". Rather it is being tendered in the one proceeding arising out of the investigations. We have concluded that section 13 of the Charter has no application in this case and we refer particularly to the case of Regina v. Dubois.

We turn next to Section 11 of the Charter. While it is clear that Section 11 of the Charter applies to criminal and quasi criminal offenses, we have concluded that it may, (and again we underline may), also apply to regulatory activities if they involve the imposition of true penal consequences and we refer particularly to Regina v. Wigglesworth. In order to make this determination, it is necessary to consider the overall nature of the regulated activity in question. In this respect, context is extremely important and we refer again to Blencoe v. British Columbia Human Rights Commission.

Mr. Roth argues that because the Director of the Ontario Racing Commission in this case imposed substantial monetary fines against some of the applicants and proposes to impose such fines against others, Section 11 should apply to these proceedings. Mrs. Tanaka argues that even though a successfull prosecution arising in part from evidence secured by the Administration at the investigatory stage may lead to a suspension of license and or a fine, the fine in particular may not be penal in nature. Mr.Roth conceded that a suspension alone does not constitute a penal consequence. Mrs. Tanaka argues that the offences found in the Act and Rules are really aimed at regulating economic and business activities with a view to protecting participants and the public and that any fine imposed would be designed to further those objectives rather than punish the offender.

In our view, the fines imposed or proposed in this case do not convert this proceeding into a penal matter with true penal consequences within the meaning of the case law. When fines are imposed under the Act and Rules, they are designed to maintain internal discipline within the limited sphere of horse racing and not for the purpose of redressing a broader public wrong. The latter is a matter for the criminal law.

The magnitude of the fine is not determinative as it nonetheless may not be designed to punish. For example, the magnitude of a fine may reflect the financial gain derived by the wrongdoer while acting in the course of breaching a regulatory provision and the fine may be directed at requiring the wrongdoer to disgorge his or her gain. In addition, the fine may be designed to deter the wrongdoer and others from engaging in similar prohibited activity and we refer to the cases of Regina v. Wigglesworth, Thomson Newspaper Limited v. Director of Investigation and Research, Regina v. Dwyer and Regina v. Cotton Felts Limited.

In Regina v. Wigglesworth, Madame Justice Wilson said this in paragraph 24 of her judgment:

"This is not to say that if a person is charged with a private domestic or disciplinary matter which is primarily intended to maintain discipline, integrity or to regulate conduct within a limited private sphere of activity he or she can never possess the rights guaranteed under Section 11. Some of these matters may well fall within Section 11, not because they are the classic kind of matters intended to fall within the section but because they involve the imposition of true penal consequences.

In my opinion a true penal consequence which would attract the application of Section 11 is imprisonment or a fine which by its magnitude would appear to be imposed for the purposes of redressing a wrong done to society at large rather than to the maintenance of internal discipline within the limited sphere of activity".

Madame Justice Wilson then goes on to cite from a case comment prepared by Professor Don Stewart on the Wigglesworth case and then she continues:

"First, the possibility of a fine may be fully consonant with the maintenance of discipline and order within a limited private sphere of activity and thus may not attract the application of Section 11. It is my view that if a body or an official has an unlimited power to fine and if it does not afford the rights enumerated under Section 11 it cannot pose fines designed to redress the harm done to society at large. Instead it is restricted to the power to impose fines in order to achieve the particular private purpose. One indicium of the purpose of a particular fine is how the body is to dispose of the fines that it collects. If, as in the case of proceedings under the Royal Canadian Mounted Police Act, the fines are not to form part of the consolidated revenue fund but are to be used for the benefit of the force it is more likely that the fines are purely an internal or private matter of discipline and reference is made to section 45 of the Royal Canadian Mounted Police Act".

The Ontario Racing Commission is a self-funding regulatory agency of government and pursuant to the Act, it has the right to retain any funds collected, including track levies, license fees and fines. These monies are not turned over to the consolidated revenue fund to be used for the general purposes of the government unless the Minister of Consumer and Business Services requests that any surplus monies be turned over. Otherwise, the monies collected by the Ontario Racing Commission are to be applied to enable it to exercise its powers and perform its duties under the Act and we refer particularly to Section 13 of the Racing Commission Act.

In our view this supports the conclusion that the fines under the Racing Commission Act and Rules are not penal in nature. Accordingly, we have concluded that neither Sections 11(c) or 11(d) are triggered in this case and that the information secured by the investigators is admissible.

We now turn to Section 7 of the Charter. Mr. Roth concedes that while licensees under the Act and Rules can be compelled to give statements and to produce documents at an investigatory stage in a proceeding, the application of Sections 7 and 24 of the Charter should preclude the admission of such evidence in a prosecution arising from the investigation. He argues that the licensees should be immune from having such evidence used against them. He submits that the information in this case was derived by coercion in an adversarial context as the administration was engaged in investigating these very licensees and that they were under a threat of license suspension if they did not respond to the request being made. Mr. Roth relies principally on the cases of Regina v. Fitzpatrick, Regina v. White, Thomson Newspapers Limited v. Director of Investigation and Research et al and B.C. Securities Commission v. Branch. Mrs. Tanaka submits that this Section of the Charter has no application at all to these proceedings for the same reasons given in her arguments supporting the inapplicability of Section 11. In addition, she has referred us to a number of cases which she submits stand for the proposition that the rights protected by Section 7 do not include the right to engage in any particular profession or employment activity or to participate in a regulated economic sector. She submits that horse racing is such an activity and the right to hold a license is not a right protected by Section 7 of the Charter. She also argues that a licensee is required to abide by all of the rules governing a particular regulated activity as is evidenced by his or her voluntary application for a license and his or her agreement to be bound by all of the Rules. In support of this argument she cites the cases of Cosyns v. Canada (Attorney General);Biscotti v. Ontario Securities Commission; Regina v. Miles of Music Limited, Haddock v. Ontario(Attorney General), 1246434 Ontario Limited, carrying on business as Bunnies, v. Ontario (Alcohol and Gaming Commission), Regina v. Transport Robert (1971)Limited; Reference re Sections 193 and 195.1(1)(c) of the Criminal Code; Regina v. Beare and, Ozubko v. Manitoba Racing Commission.

It is to be noted that the only case cited to us which deals with the application of the Charter to the regulation of the horse racing industry is the Ozubko decision which we will refer to in greater detail later in these reasons.

Prior to the Blencoe decision from the Supreme Court of Canada in October, 2001, there was considerable confusion in the case law as to whether Section 7 of the Charter in particular, could apply to administrative or regulatory proceedings before a tribunal or agency. Notwithstanding that Blencoe deals with a human rights case, our reading of it indicates that statutory authorities may, (and again we underline may), be subject to the Charter if they are involved in the implementation and regulation of a government program and particularly if they have coercive powers which they implement in discharging their responsibilities.

Just as with the case of Section 11 of the Charter, we have concluded that Section 7 may apply to the activities of the Ontario Racing Commission. However, it remains to be determined whether that Section is engaged in the circumstances of the activities in the case at hand. Section 7 of the Charter protects an individual's right to life, liberty and security of the person and the right not to be deprived of such protection except in accordance with principles of fundamental justice. In our view, the only possible application of Section 7 in this circumstance relates to the liberty and security interests of an individual. The case law indicates that the liberty interests of an individual relate to matters that are fundamentally or inherently personal to the individual and which go to the root of that person's independence and dignity. We refer again to Blencoe v. B.C. Human Rights Commission. In this respect, the cases suggest that this principle does not extend to economic interests such as the right to earn a livelihood in a regulated industry. The Thomson Newspaper; and Horsefield v. Ontario (Registrar of Motor Vehicles) cases indicate that a liberty interest is not engaged where a coercive provision does not affect an important or fundamental life choice.

Mr. Roth argues that when an individual is required to attend, give a statement and produce documents this affects an important or fundamental life choice. In our view, requiring a licensee in the horse racing industry to respond to a request by an investigator to provide information does not affect an important or fundamental life choice and hence a liberty interest within the meaning of Section 7 of the Charter.

In the Blencoe case where the liberty and security interests of an individual were being considered in the context of a sexual harassment complaint under human rights legislation, the Supreme Court of Canada held that Section 7 was not engaged, albeit in the context of a right to a timely hearing. In our case, which arguably involves a lesser interest to that of human rights, Section 7 is equally not engaged. The horse racing industry survives only if its participants act with the utmost integrity. Otherwise the public will not engage in pari-mutuel wagering on horse races and except for income that is derived by the industry from the slot program at racetracks, all other income flowing to the industry, directly or indirectly, comes from wagering. It is equally important for the participants in horse racing to participate on a level play field where the integrity of fellow participants can be relied on.

In our view, requiring a licensee to provide information to Ontario Racing Commission investigators is not only reasonable for the proper regulation of this industry but is not contrary to any principle of fundamental justice. In the context of the regulation of an industry, the level of Charter scrutiny is lower than in a criminal matter and the reasonable expectations of volunteer participants includes the duty to be accountable to the regulator and to respond to reasonable requests for information. As to the security of the person's interest protected by Section 7, the Blencoe decision also stands for the proposition that the simple subjection to processes in which the state is inquiring whether someone has failed to meet a legislated standard, is not enough to trigger the right to security of the person.

In order for that part of the Section to be triggered, there must be psychological stress so serious and profound that it impacts on an individual interest that is of fundamental importance.

This falls short of the ordinary stresses and anxieties that a person of reasonable sensibilities would suffer as a result of government action and we refer specifically to paragraphs 94 to 96 inclusive of the Blencoe decision. Accordingly for these reasons, we have concluded that Section 7 of the Charter does not apply to the circumstances of this case.

In sum, we have concluded that neither Sections 7, 11(c), 11(d) or 13 of the Charter apply in this instance. Neither applies to the requirements set out in Rule 6.28 requiring a licensee to attend and to provide a statement to investigators and to produce documents, nor to the admissibility of the statements or documents in a proceeding against such licensee arising from the investigation.

In addition to the Ozubko case, a number of regulatory or discipline cases were cited where after determining that there was no Charter violation, the information secured was admitted in evidence. See for example Thomson Newspapers and Regina v. Branch. Rule 6.28 itself is not in contravention of the Charter provisions in question and it is to be noted that the possible penalty for failure of a licensee to comply with the request for information under Rule 6.29 is license suspension only and not a fine.

As to the application of Charter protection in the context of the horse racing industry, we return to the case of Ozubko v. Manitoba Horse Racing Commission. In Ozubko, the officials of the Commission were conducting a barn search for prohibited substances on race track premises. They discovered an injectable in the possession of a certain licensee.

The right to conduct such searches was found in the Horse Racing Commission Act of Manitoba. The judges at the race track found certain licensees guilty of violating the rules and admitted the evidence of the finding of the syringe on the premises in evidence and imposed fines. An appeal to the Commission itself was dismissed and a further application for Judicial Review was taken to the Manitoba Court of Queen's Bench which quashed the convictions on the grounds that Section 8 of the Charter, the search and seizure Section, had been violated. An appeal was taken to the Manitoba Court of Appeal which restored the convictions and fines.

While Section 8 of the Charter is not before us in this case, the issue here is similar to one of the issues in Ozubko namely whether an investigatory procedure which is coercive in nature should result in the inadmissability of the evidence secured. In dealing with the issues before the Court of Appeal, Mr. Justice Huband in writing for the Court wrote the following:

"The Commission is responsible for maintaining the integrity of horse racing in Manitoba and in order to do that, certain rules must be observed. The rules passed as a regulation under the Act cover a broad range of subjects, including the sanction of races, the appointment of officials and judges, involving the granting of licenses, the conduct of the races themselves, the distribution of prizes, the rules of driving, the maintenance of records, offenses, penalties and hearings and appeals. Under one of those rules it is forbidden to have in one's possession within the grounds of the race track or the stable area any hypodermic, syringes or needles unless the person is a licensed veterinarian or a veterinarian assistant. The purpose of that rule is obvious. There must be no appearance that a horse has been tampered with by the injection of a drug by an unauthorized person.

The rule is not aimed at preventing a criminal act. A syringe or a hypodermic needle might be present within the race track area for perfectly proper purposes but the integrity of the sport cannot hinge on a close inquiry as to whether the purpose is good or evil. Under all circumstances syringes and hypodermic needles are banned.

These rules are agreed by all who seek and obtain licenses as owners, trainers and drivers. The licenses issued are subject to the condition the licensees will comply with the rules.

There is a mechanism for the enforcement of these rules. Where there is a suspicion that the rules are being violated, then the commission is entitled to exercise the statutory powers conferred upon it by Section 11 of the Act. Indeed, even in the absence of suspicion, the commission is entitled to undertake a spot check search to determine whether or not only this rule but other rulesare being obeyed by licensees. In my view the wording of section 11 - and that is section 11 of the Manitoba Act - is sufficiently broad to cover the seizure of physical evidence from the Ozubko truck. The essence of section 11 is to enable the commission to enforce its rules within the race track area and where the truck was located.

However, my decision does not depend upon section 11 conferring a valid authority to search a truck on the grounds of the race track. I think the search and seizure would have been proper even if section 11 did not exist. Section 9(1) of the Act gives the commission the power to regulate horse racing in Manitoba and the operation of all race tracks. Section 9(2) imposes upon the commission the duty to enforce the Act and the Rules. The exercise of its responsibility among those who are licensed by the commission and have agreed by the rules constitutes sufficient warrant to conduct the kind of search which took place, including the seizure of the prohibited materials from the Ozubko truck.

And then continuing further on: "In a case of this kind there is no requirement on the commission to obtain a pre-authorization for the search in the form of a search warrant granted on reasonable and probable grounds by a justice of the peace or a Provincial Court judge. A breach of the rules does not necessarily involve a violation of the Criminal Code or an act of Parliament. Indeed in this very case the breach of the rules is not a crime. Having possession of a syringe or hypodermic needle in a race track does not in itself violate any provision of law. By applying for and obtaining a license and functioning as an owner, trainer or driver at a track Ozubko and Chabot in common with all other licensees give tacit consent to the reasonable enforcement of the rules. It does, not now lie in their mouths to argue that the search and seizures were unreasonable.

A parallel can be drawn to other licensees in other areas of human endeavour. Lawyers who are licensed to practice law must submit to a set of rules established by a body, namely a law society, which is given statutory authority to establish those rules. The rules imposed upon a lawyer, the duty to keep proper accounts. A search warrant based on reasonable and proper grounds that an offense against the law of the land is being committed is simply out of place. The offence, if any, may not be a crime but beyond that all licensees recognize that there must be procedures to ensure that the rules are being obeyed and consequently spot checks to confirm compliance with the rules are so manifestly reasonable that to argue otherwise on the basis of section 8 of the charter becomes unthinkable.

In the present cases, as noted, the investigating authority is not a police department or government enforcement branch but rather a body responsible for the enforcement of rules with which the licensees have agreed to comply. No crime is involved. Ozubko and Chabot can own and possess as many syringes and hypodermic needles as they wish outside the gates of the race track with perfect impunity. They were exercising no freedom guaranteed by the charter when the search took place. Rather they were participating as licensees in the business of horse racing. Those wishing to avoid the kind of search and seizure to which they were subjected simply need not apply for a license.

I should add that even if I were to conclude that the search and seizure violated Section 8 of the charter, for one reason or another, the evidence would in my opinion still be admissible at the hearing to determine whether Ozubko and Chabot had violated the commission's rules. Section 24(2) of the charter contemplates that evidence obtained as a result of an infringement of the charter will continue to be admissible save in those instances where its admission would bring the administration of justice into disrepute.

As more and more cases involving the interpretation of the charter are decided the juris prudence becomes more settled. Whether the admission of evidence obtained in violation of charter would bring the administration of justice in disrepute depends upon the circumstances of each case, including the nature of the charter violation and by whom it was violated. In this case the violation is with respect to Section 8. The search was being conducted by a man who is not a police officer. Presumably neither he nor the commission had reason to believe that what he was doing in any way violated anyone's charter rights. Mr. Langois saw a syringe in the truck. When he opened the door and took the materials out it merely confirmed that he has observed and can testify to without entering the truck. He did not use force or threat in obtaining the evidence. As has been noted Ozubko and Chabot were licensees who were required to comply with the rules and they should have expected that the commission would take steps to detect disobedience of the rules. Finally, of course the search was productive in that articles providing a violation of the rule were found. Given the circumstances of this case the exclusion of the evidence rather than its admission would bring the administration of justice into disrepute".

While this case was decided in 1988 just four years after the Charter came into force and while there have been many cases decided subsequently as is so evident in this Motion, the Ozubko case not only provides an accurate description of that all important context relating to the horse racing industry but it deals with the application of the Charter in the horse racing context and the remedy.

Having found that the Charter has no application in the circumstances of this case, we turn finally to Mr. Roth's argument that the principles of administrative law, fairness and fundamental justice should preclude us from admitting the tendered evidence in question. He argues that the applicants would not receive a fair trial or hearing if this evidence was admitted.

We disagree for many of the reasons previously stated. We see nothing unfair in requiring licensees to respond to the requests of the regulator for information including relevant business records. Licensees in the horse racing industry know how heavily regulated it is. They know that the regulator is charged with the principle task of insuring its integrity. They know that from time to time they be asked to provide information in pursuit of this end. In our view, there is a very low expectation of privacy with respect to information regarding their participation in and records relating to their horse racing activity. Finally, licensees must expect that their statements and the documents produced by them, whether exculpatory or inculpatory, may be used in an effort to enforce the rules of racing. In our view, there is no element of unfairness and no denial of fundamental or natural justice in these circumstances.

If we are wrong in our conclusions regarding the application of the relevant Sections of the Charter and, if any provision of the Charter has been violated in this case, we would nonetheless admit the evidence tendered under Section 24(2) of the Charter. To admit such evidence in the context of the horse racing industry would not bring the administration of justice into disrepute having regard to the nature and extent of regulation that is required in this unique industry. The voluntary participation of the licensees and the low expectation of privacy all support this conclusion.

In sum, the evidence tendered by the Administration is not precluded on Charter grounds nor as a result of the breach of any principle of administrative law. This ruling does not prevent counsel for the applicants from raising any other objections on the receipt of any particular piece of evidence as they may be advised. That is our ruling on the Motion.

DATED this 30th day of April, 2002.

Stanley Sadinsky, Q.C.

Chair