Bert Smith, 2004 CanLII 76161

RULING

A panel of the Commission consisting of the Chair and Commissioners Brenda Walker and George Kelly have commenced a hearing concerning appeals by Bert Smith from Rulings SB 244 and SB 31299 in each of which the Standardbred judges imposed a fine and suspension of Mr. Smith’s licence as an owner/trainer of Standardbred horses for violations of Rules 6.17(c) and (d) and 6.20(b) of the Rules of Standardbred Racing.

Four witnesses have testified so far. The exhibits filed include a Document Brief containing the Notice of Appeal and the grounds of the appeal (Exhibit 1, Tab 3, 3rd and 4th pages). The Administration wishes to call as a witness Senior Judge Gary Cahill to testify. The appellant objects.

The Administration says that the purpose of calling Judge Cahill is to establish what happened at the hearings before the judges and, as well, to speak to the penalty imposed by the judges in the Rulings. Judge Cahill was the Senior Judge on the panel of three with respect to both rulings.

Because there was insufficient time to complete the evidence in the matter on October 8, 2004 as had originally been intended, the hearing has been adjourned to October 27, 2004. There is an order excluding witnesses from the hearing.

The appellant’s counsel argues that since this hearing before the Commission is a hearing de novo, what happened at the judges hearing is irrelevant and any evidence from Judge Cahill is inadmissible. In the alternative, if what happened at the judges hearing is relevant to the facts of the case, then Judge Cahill is not the judge who should be called since there are no contemporaneous notes of his, other than the Senior Judges Report, that have been disclosed, but extensive notes from Judge Fraleigh have been produced. The appellant argues that it is Judge Fraleigh who should be called, not Judge Cahill. In addition the appellant argues that unless it receives disclosure of all the Judge Cahill’s rulings on violations of Rules 6.17 (c) and (d) and 6.20 (b) concerning any licensee since the first written warning given to Mr. Smith concerning his conduct in 2001 to date, he is not in a position to properly and fully cross-examine Judge Cahill on the penalty imposed.

The Commission is extremely reluctant to deny any party the ability to call the witnesses that the party believes are necessary to establish its case and to assist the Commission in arriving at its determination of the appeal, whether the party is the Administration or the appellant. Each party reaps the benefit and bears the cost of calling the witnesses it calls and not calling the witnesses it does not call.

It is the Commission’s normal procedure to hear evidence from the judges who held the hearing resulting in the Ruling appealed if the evidence is relevant to the matter before the Commission.

On the basis of the testimony we have heard to date, we do not agree with the Appellant’s submissions that the events at the judges hearing of April 29 are irrelevant to the matters before us. As the evidence has developed, the judges’ hearing on April 29, 2004 from which Ruling SB 31244 resulted has become one of the events in a series of events to which the witnesses already called have testified and which led to Ruling SB 31299. Two witnesses, neither of whom was at the judges’ hearing for the entire period, have testified and we are advised that Mr. Smith who was at the judges’ hearing (since it dealt with a complaint against him) will also be testifying. In those circumstances we believe the evidence of a judge who conducted the hearing on April 29 is relevant to the issues before us.

On the basis of the Notice of Appeal that was filed, we also assume that the appellant will testify with respect to those issues of procedure relating to the judges’ hearings referred to in that document. Therefore the evidence of Judge Cahill may be relevant to those issues as well.

In our view it is up to the Administration as to which of the judges who conducted the hearings should testify. We do not accept that a judge should not be permitted to testify on the basis solely that the individual did not take extensive notes of the events as they occurred.

We therefore refuse the objection raised to the calling of Judge Cahill on the grounds of relevance.

The appellant also complains of the lack of disclosure on the part of the Administration with respect to the issue of penalty. As is the normal course in our hearings, even though there has been no determination it is anticipated that we will be asked to deal with penalty in the course of the argument on the appeal of the Rulings. Counsel are free to request that the panel hear evidence and submissions as to penalty after the determination of the appeals. No such request has been made.

In all appropriate cases the Commission’s practice is to receive from the judges the evidence as to the reasoning that led to the penalty imposed in the Ruling appealed. The Commission’s practice has not been to ask the judges to provide a written rationale for penalty in the Rulings; rather the judges testify as to the rationale on any appeal of a Ruling.

The Commission panel is free to arrive at its own penalty and is not bound in any way by what the judges imposed, however good their reasons may have appeared at the time. The Commission panel frequently hears different and additional evidence that was never provided to the judges for their hearings as well as the argument of counsel and/or the parties on additional or other factors that should be taken into account.

The judges’ rulings indicate only the name of the licensee, the date, the track location, the penalty and a recital of the Rules violated. The specific details of the fact situations are not provided in the rulings. Summaries of the rulings are posted on the Standardbred Canada website on a daily basis. Again no details of the fact situations are provided.

The parties did not estimate how many rulings had been made either by the judges or by a Commission panel since 2001 but the number of rulings to be searched can be estimated since there is standardbred racing somewhere in Ontario 364 days per year. The appellant argues that administrative difficulties in locating the rulings are not to be taken into account in whether or not disclosure is to be made.

The Divisional Court has twice dealt with the issue of disclosure of judges’ rulings in judicial review applications from decisions of the Commission. The argument was made that disclosure of other penalty rulings is necessary because of the sentencing principle that similar cases should be treated similarly. In both cases, the Divisional Court rejected the argument. (See Robinson v. Ontario (Racing Commission) [2004] O.J. No. 1591 at para. 21 to 26, referring to Harris v. Ontario (Racing Commission) [2003] O.J. No. 1743 at para. 16). No contrary cases were cited to us.

The appellant referred us to the obligations of disclosure as described in the context of criminal proceedings, for the Crown, which deal with statements of witnesses that are the fruits of the investigation that are in the possession of the Crown, whether exculpatory or inculpatory, and whether the Crown intends to rely on them or not. If there are no statements, then notes should be given and if there are no notes, then all information in the prosecution’s possession relating to any relevant evidence the person could give should be supplied. The disclosure obligations are related to whether or not the charge has been made out against the accused or whether evidence that would tend to support the innocence of the person charged is made available to the defence even though it was obtained by the Crown.

Our understanding is that the Administration intends to lead evidence from Judge Cahill as to the basis on which the judges arrived at the penalties in their rulings of April 29 and June 21, 2004. The appropriateness of the penalty is an issue. It would be of assistance to us to understand the basis on which the judges arrived at the penalties. The issues before us are not whether the judges were right or wrong in what they did but rather on the evidence we have before us, whether or not the violations occurred. We then have to assess a fair and reasonable penalty.

This panel is in no way constrained by the receiving of the evidence from the judge(s) from arriving at a different penalty if Rule violations are found to be established on the evidence.

In our view the disclosure obligation is discharged by the disclosure to the appellant in a will say statement provided on or before October 25, 2004 of the rationale for the imposition of the penalty to be articulated by the witness. The Administration should provide copies of any previous judges’ rulings or decisions of this Commission that were taken into account by the judges in arriving at the penalties imposed in the Rulings before us. It is open to the appellant to cross-examine fully on the rationale put forward.

DATED this 19th day of October, 2004

______________________________

Lynda Tanaka

Chair