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

AND IN THE MATTER OF THOROUGHBRED JOCKEY RAYMOND SABOURIN

AND OWNER ARTHUR SILVERA

Thoroughbred Jockey Raymond Sabourin and Owner Arthur Silvera appealed Ruling TB 2003-193 of the Stewards at Woodbine, dated June 19, 2003, wherein Mr. Sabourin was suspended for twenty calendar days for careless riding and the horse GEMINI DREAM was disqualified from 1st position and declared unplaced, in accordance with Rules 11.07, 11.09.1, 11.09.3 and 11.09.5 of the Rules of Thoroughbred Racing.

On October 21, 2003, Chair Lynda Tanaka and Commissioners Patricia Bullock and Bernard Brennan, DVM, of the Ontario Racing Commission convened to hear the appeals.

Peter Howard appeared on behalf of Mr. Sabourin and Mr. Silvera, and Don Bourgeois appeared for the Administration.

Upon hearing the testimony of Steward Richard Grubb, Emile Ramsammy, Raymond Sabourin, Larry Attard and Robin Platt, upon reading the exhibits filed, upon hearing submissions on behalf of the parties, the Ontario Racing Commission dismissed the appeal but reduced Mr. Sabourin's suspension to 15 days.

The Commission’s reasons for decision are attached and form part of this Ruling.

BY ORDER OF THE COMMISSION

Jean Major

Executive Director

REASONS FOR DECISION

On October 21st, the Commission convened to hear the appeals by the TB jockey Ray Sabourin and the owners of the horse Gemini Dream (the #7 horse) with respect to the decision of the Stewards at Woodbine Racetrack dated June 19, 2003 suspending Mr. Sabourin for 20 days for careless riding in the 8th race on June 14th, 2003, in the Victoria Stakes, and disqualifying the #7 horse and declaring it unplaced. An order was made excluding witnesses, as requested by the appellants.

Our decision is to dismiss the appeal of the disqualification and the appeal of the suspension but to reduce the suspension period of Mr. Sabourin to 15 days.

Rule 11.07 provides "When clear, a horse may be taken to any part of the track, but if the horse swerves or is ridden to either side so as to interfere with, intimidate or impede any other horse, such horse may be disqualified".

Rule 11.09.1 provides "If a horse or jockey bothers another horse or jockey, the aggressor may be disqualified provided that the bothered horse or jockey or an additional horse or any jockey/s was/were not a major contributor to the incident."

Rule 11.09.3 provides "For fouling, interference, or careless riding a rider may be fined or suspended, or both, by the Stewards according to the nature and seriousness of the offence".

The Administration called as witnesses Steward Richard Grubb who testified as to his observations of the race based on his extensive experience as a jockey and Steward, and the jockey of the horse interfered with, the #2 horse StormtheBarricade, Emile Ramsammy. Mr. Ramsammy has been licensed as a jockey for over 20 years and has ridden in and won many races. The race video tapes indicate that after entering the turn, the #2 horse clipped heels with the #7 horse which had pulled in front, resulting in the #2 horse falling. It is agreed that the front hooves of the #2 horse and the rear hooves of the #7 horse clipped and caused the #2 horse to fall, throwing Ramsammy to the ground and under the hooves of the following horses.

Mr. Ramsammy suffered a concussion and facial injuries in the incident. He did not regain consciousness until he was hospitalized. He was described by counsel for the appellants as groggy at the Steward's hearing into the incident and he was unable to ride for three weeks after the incident. He testified before us to the effect that he was uncertain that his initial impressions of the incident upon waking up in the hospital were accurate. Indeed the speed at which the events happened, the extent of the injuries and the sheer volume of people with differing views as to what happened in the race, and the prestige of many of them would cause a reasonable person to perhaps second guess initial impressions. He testified that his horse in training sometimes did not change leads properly on turns. The evidence indicates that this sometimes happens with 2- year- old horses who are really at early stages of their training for their racing careers. His recollection now is that he stood up to keep his horse from lugging out.

Steward Grubb testified as to his observations as Steward of the race including the lack of any sign that the jockey of the #7 horse, Mr. Sabourin, checked to his left as he moved across the paths of the other horses. Steward Grubb was questioned on the form of the two horses as indicated in the program for the race which includes the workout history of the two horses. At five furlongs, the #2 horse had trained at quicker speed than the #7 but Steward Grubb indicated that work out performance did not necessarily mean that the horse with the faster work out would race faster. We do note however that the workout information is important enough to be included in the program for the wagering public as an indication of the ability of the horses. The #2 horse was favoured to win.

Perhaps it is most accurate to say that the #7 and the #2 horses were well matched, recognizing that this is a sport where wins are by fractions of seconds and inches. In this case the tactic for the #7 horse was to move aggressively in front of the rest of the field early.

During the backstretch run, the #7 horse steadily moved across the paths of the other horses towards the inside. The #2 horse was about 2 wide of the rail running straight with the #3 horse in his lane beside the #2 horse, also running straight.

The controversy arises then as to what occurred in the few strides prior to the clipping of heels. The Administration's position is that the #7 horse continued across the front of the field, clearing all the horses, but when it came in front of the #2 horse, there was insufficient room and that was the cause of the interference.

The defence has put forward a number of theories as to the cause of the incident.

The defence called Mr. Sabourin to testify, as well as Robin Platt and Larry Attard who provided their opinions as successful experienced jockeys on the basis of their review of the tapes. Mr. Platt testified he would have ridden the horse no differently than Mr. Sabourin had.

In addition, a volume was filed consisting of 24 statements from experienced successful jockeys and trainers, most of whom apparently viewed the race videos at the request of the appellants. The majority of these statements addressed the issue of whether Mr. Sabourin's suspension was appropriate, and focussed on the unfairness of suspending him in the circumstances. The views expressed also provided several frequently contradictory views as to the cause of the interference.

We carefully listened to the evidence and observed the tapes with the assistance of Steward Grubb, Mr. Ramsammy, Mr. Sabourin and Mr. Attard, and again as a panel alone, at full speed, slowed speed and stopping at specific points. We looked carefully to see if the conclusions of the witnesses who testified were consistent with the videotapes. As noted above, we have decided to dismiss the appeal.

Contrary to several of the written opinions provided by the defence, Mr. Sabourin testified that the tape shows that the #2 horse did, in fact, correctly change lead to the left entering the turn. By looking at the harrow marks over the course of the race leading up to the fall, the horse did not lug or drift out in changing leads. The #2 horse switched to the right lead again at the point when Mr. Ramsammy is standing, trying to pull his horse back from the #7 horse which has been ridden in front of his path.

With respect to the volume of written statements, some of the statements clearly had not been well thought out or were clearly in error such as the one had the numbers of the horses wrong. At least one, that was written by the #2 horse's trainer, can be given little weight, as he is the father of one of the owners of the #7 horse. Indeed he will only go so far as to say the #2 horse did contribute. Finally, none of the authors was called to testify.

One of the statements by an experienced jockey said it was difficult to tell who was at fault.

Mr. Attard testified that Mr. Ramsammy made little effort to keep his horse from lugging out which he attributed to the failure to change to the left lead. Mr. Sabourin testified and the tape clearly indicates Mr. Ramsammy standing and pulling back on his horse, making considerable effort.

Mr. Attard's evidence, and some of the written statements, was to the effect that Mr. Sabourin's horse ran a straight path until a point just before the clipping of heels and therefore Mr. Sabourin could not be at fault. This evidence is contradicted by the tape.

It became clear as we listened and viewed the tape that the point at which the #7 horse started to run a straight path was irrelevant to the events.

Did Mr. Ramsammy take hold because his horse was veering out because it did not change leads? Given Mr. Sabourin's and our own observation that the #2 horse did change leads to the left inside, this explanation does not make sense.

Did Mr. Ramsammy try to take his horse to the outside?

We followed the path of the #3 horse which was being passed by the #2 horse at the relevant time. The nose of the #3 horse overlapped the headquarters of the #2 when the #7 came inside. Looking right and trying to find room to avoid clipping heels would be an obvious reaction. We could not in fact see Mr. Ramsammy look right though others claim to have seen it in the tape. We did not see the #2 horse lug out towards the #3 horse in the stride on the turn prior to the #7 horse pulling in front.

Our finding is that the #7 horse, early in the backstretch, came across the field and the jockey misjudged the speed of the #2 horse and his own. Where he had enough speed to clear all the other horses, he did not have enough to clear the #2 horse unless that horse took hold or went tighter into the turn. The jockey on the #2 horse is under no obligation to do either.

Our finding is that the #7 horse interfered with the #2 horse. The #2 horse did not drift or lug out because of its failure to change leads or because Mr. Ramsammy pulled it out. We also find that even if we are wrong in finding that the #2 horse did not drift out, that contribution was not a major contribution as provided in Rule 11.09.1, and therefore the disqualification stands.

Some seemed to be of the view that there was an obligation of Mr. Ramsammy to stay clear. The obligation under the Rules was clearly on Mr. Sabourin who was moving across the field and path of the other horses to do so with caution. The evidence of all the witnesses was consistent that Mr. Sabourin's obligation was to ensure he stayed clear.

Bearing in mind the widely diverging views as to the causes, fairness and the outcome, we reduce Mr. Sabourin's suspension to 15 days.

DATED this 31st day of October 2003.

Lynda Tanaka

Chair