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

AND IN THE MATTER OF

STANDARDBRED LICENSEE LEON MANSFIELD

Leon Mansfield requested a hearing with respect to the Director's Notice of Proposed Order dated May 2, 2005, in which the Director proposed to revoke Mr. Mansfield's license as a Standardbred Owner/Trainer/Driver pursuant to section 21 of the Racing Commission Act, 2000.

On August 16, 2005, a Panel of the Commission consisting of Chair Lynda Tanaka and Commissioners Jane Garthson and George Kelly convened for the hearing. Brendan Van Niejenhuis acted as counsel for the Administration, and Philip Morrissey acted as counsel to Mr. Mansfield.

On reading the Exhibits, including the Agreed Statement of Facts, and on hearing the evidence of Leon Mansfield, Sue Mansfield, Neeley Douster and Erin Flynn, and on hearing the submissions of counsel, the Panel upheld the determination of the Director that there were reasonable grounds to believe that Mr. Mansfield will not act in accordance with law or the public interest, but found that it was unable to conclude that Mr. Mansfield will not abide by the rules or the terms of his licence.

The Panel determined that the Order proposed by the Director to revoke the licence of Mr. Mansfield should not be made and substituted the following Order:

(a) Mr. Mansfield's licence will be suspended in all categories for a period of three months;

(b) Mr. Mansfield's licenses as an owner and as a trainer will be suspended for an additional period of three months;

(c) Mr. Mansfield shall serve a probationary period of a further twelve months;

(d) Mr. Mansfield shall pay a fine of $5,000.00;

(e) Mr. Mansfield shall continue to take counselling of the nature recommended in the Report of Mr. Len Kushnier contained at Tab 2 of Exhibit 4 to the proceedings;

(f) At the conclusion of the three month full suspension, Mr. Mansfield shall provide proof satisfactory to the Director of Racing that he has completed the programs recommended by Mr. Kushnier in that Report and has implemented the operating procedures recommended in that Report;

(g) The Director of Racing may undertake any investigation appropriate to corroborate the materials provided in accordance with paragraph (f), and Mr. Mansfield and Mrs. Sue Mansfield will co-operate in this regard.

The Panel further ordered that the suspensions referred to above shall not take effect for fifteen (15) days from the date of this Ruling.

The Panel gave written reasons for decision, which are attached to this Ruling.

DATED this 5^th^ day of October, 2005.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Leon Mansfield requested a hearing with respect to the Director’s Notice of Proposed Order dated May 12, 2005 in which the Director proposed to revoke Mr. Mansfield’s licence as a Standardbred Owner/Driver/Trainer pursuant to Section 21 of the Racing Commission Act, 2000.

The particulars which formed the basis of the proposed order refer to Mr. Mansfield’s two convictions or findings of guilt under the Criminal Code for sexual assault, the latest of which is October 19, 2004. Both the convictions were related to assaults against female grooms in his employ. Further, it is alleged that Mr. Mansfield did not disclose outstanding criminal charges in his application for licence in 2002.

An Agreed Statement of Fact was filed as Exhibit 2. In addition, a document brief was admitted as Exhibit 1 on consent.

It is not contested that Mr. Mansfield was convicted in 2002,after pleading not guilty, of sexual assault on a groom in his employ. He has served his penalty (45 days intermittent incarceration plus one year probation) with respect to that conviction. The second conviction resulted from a guilty plea and concerned incidents during his probationary period. Again he has served his term of 6 months conditional sentence (what is commonly known as house arrest) and is now serving his one-year probationary term. During the period of conditional sentence Mr. Mansfield was permitted to continue to earn his living in the racing industry under the terms of the Court’s order, including travelling to attend races.

Mr. Mansfield’s counsel provided to us a brief of documents that included the transcript of the court proceedings on the second conviction. This transcript indicates an admission of inappropriate touching of the groom. It was agreed by counsel at the court hearing in 2004 that Mr. Mansfield had made on other occasions over a number of months a series of inappropriate comments that had a sexual connotation to the groom who had complained. The comments which contained sexual connotation, apparently also accompanied the incidents of inappropriate touching. Both counsel on the criminal prosecution in 2004 apparently agreed that the inappropriate touching was of a nature that is lower on the scale of intrusiveness than some other cases dealt with in the criminal context. The court in determining sentence took into account the fact that Mr. Mansfield pled guilty and would co-operate with counselling. A counsellor’s report indicating a low potential to re-offend was also supplied to the court and to this panel.

In each of these situations, the groom was a young woman employed by Mr. Mansfield. The incidents occurred in a barn on a farm where Mr. Mansfield has stalls for horses he trains. The environment is one in which foul language is frequently heard and in which there are at times many people around and at other times, a groom could find herself alone with her employer in confined space.

Counsel for Mr. Mansfield called as witnesses two young women who are currently grooms for Mr. Mansfield and his wife Sue Mansfield who is also a licensee. Both testified that they are comfortable working for the Mansfields and they believe that they have a good enough relationship that if they had any concerns about their working conditions they could talk to Sue Mansfield. While the two young women were both aware that Mr. Mansfield had a criminal conviction, neither seemed to be fully aware of the circumstances of the convictions. One had attempted to distance herself from one of the victims. Both testified that they felt that the Mansfields were “friends of the family”. The phrase “friend of the family” carries the implication of a higher expectation of care for the well being of the members of the family than a mere employee/employer relationship, as well as the potential for severe punishment by virtue of the loss of a valued friendship and social isolation in the event of misconduct.

Both Mr. and Mrs. Mansfield testified before the panel. Since 1982 training standardbred racehorses has been Mr. Mansfield’s sole means of support. He has limited education. The business presently provides a living for them but a heavy fine would be crippling for the business and there is no indication that Mr. Mansfield could readily find employment outside the industry. Mrs. Mansfield has been employed in office work prior to working fulltime in the horse racing industry. In fact she met Mr. Mansfield when she was employed by him as a groom. Mr. Mansfield’s record of rule violations shows seven violations over a span of 22 years, two of which relate to not having the chinstrap fastened. He has one positive test that is over 20 years old and one violation for having injectibles on the track that is over 10 years old. His most recent violation is as a driver in April 2005. Neither Mr. nor Mrs. Mansfield regarded the two other witnesses or their families as “friends of the family”, though they acknowledged some social context to the relationship with the young women or their families.

Mr. Mansfield has, according to his probation officer, complied with the terms of his most recent probation. His testimony clearly established that his periods of intermittent confinement and house arrest have shaken him and he dreads the prospect of imprisonment. He testified that he has apologized to the victims and has undergone 8 to 10 sessions of assessment with one Len Kushnier who provided the assessment included at Tab 2 of Exhibit 4. He has received counselling from Mr. Kushnier on appropriate ways to conduct himself on how and when to speak. He has also successfully completed the first level of counselling, including the written work, in a structured government program of counselling for persons who have been convicted of offences such as these. The purpose of this program is to assist the individual to realize the mistakes that he has made, to learn how to correct his own behaviour, to account for the wrongs done to other individuals and to develop barriers between himself and others so as to prevent any further incidents. He intends to complete the next two levels. This program is part of his probation terms.

Mr. Mansfield’s testimony indicates that he is still resistant to the concept of his having committed offences. He testified that the victim in the second conviction was deeply troubled and that she was very difficult to work with, as if this explained her complaining to the police of his conduct. He continues to deny that there was any physical contact that was intentional with the first victim, though he acknowledges that he made inappropriate comments. He testified that he has conducted himself as required by his probation terms, yet his second conviction arose from a complaint of comments and actions that started shortly after his first conviction. Despite his genuine fear of further punishment, he remains apparently confused and uncertain as to what he did wrong. He apparently believes that he can play a role in assisting young people who are confused or in difficult circumstances in their personal lives. Nothing could be further from the truth.

There are many people who grew up in or worked as young people in an environment that condoned and even encouraged sexual innuendo in comments made in the workplace by senior men to younger women or where fellow workers turned a blind eye to sexual assault. That such conduct is no longer tolerated and that there are protections in place to prevent that type of conduct is often “news” to individuals who do not see the harm in such conduct either in the past or in the future. We assess Mr. Mansfield as one of those genuinely confused by the change in the standards of conduct appropriate in the workplace and unaware of his own vulnerability to serious penalties in the event of allegations being made.

We are concerned about the potential for further incidents, especially given the employment relationship between Mr. Mansfield and the victims. Mrs. Mansfield testified that she is alert to the potential issues if Mr. Mansfield and a female groom are to be alone in the barn. Her testimony indicates that she attempts to be present in the barn to prevent unwarranted allegations being made against her husband. She presented herself as open to whatever counselling or other steps that need to be taken to clear her husband’s name and to allow them to go on with their lives in the industry.

The Administration also relies on an error in Mr. Mansfield’s application for his 2003 licence in which in 2002 he failed to disclose the charges pending for the first sexual assault case. His 2004 licence application included the particulars of the conviction.

We have been referred to the following decisions of the Commission for guidance:

Re Turcotte [1997] O.R.C.D. No. 40 Series No. SB 228/1997

Re Chabot [1998] O.R.C.D. No. 4 Series No. SB 296/1997

Re Forgie [1999] O.R.C.D. No. 1, Series No. SB 20/1999

Re Martino [2000] O.R.C.D. No. 20 Series No. SB 178/2000

Re Waples [2000] O.R.C.D. No. 10 Series No. SB 97/2000

Re Waples [2000] O.R.C.D. No. 33 Series No. SB 156/2000

Re Mailhot [2000] OR.C.D. No. 58 Series No. TB 17/2000

Re McLean [2002] O.R.C.D. No. 54 Series No. COM SB 10/2002

In addition we were referred to the “Report of the Disposition of the Justices of the Peace Review Council Respecting a Complaint Against Justice of the Peace G. Leonard Obokata” in which the Justices of the Peace Council reported on a complaint of misconduct against His Worship G. Leonard Obokata and to inquire as to whether or not he should be removed from office. The report indicated clearly inappropriate conduct on the part of His Worship but did not recommend his removal from office. In argument counsel advised us that His Worship’s misconduct related to an incident that was established to be the sole such incident and involved a peer, rather than an employee. The penalty imposed was a formal reprimand for his conduct and the discredit that his conduct had brought to the bench, the imposition of a condition that he undergo assessment and where required treatment and counselling with proof in writing to the satisfaction of the Justice of the Peace Review Council. That Council retained discretion to determine whether or not the evidence provided is satisfactory with respect to the necessity of treatment or the course of treatment eventually followed. Further His Worship was suspended without pay but with benefits for a period of 30 days, the maximum period provided under the relevant statute.

There are important distinctions on the facts between that case and Mr. Mansfield’s case. The complainant was not a peer of Mr. Mansfield, and the incident that gave rise to the complaint against Justice of the Peace Obokata was a single incident on one evening outside the time frame when he was carrying out his duties as a justice of the peace, not a complaint related to a course of conduct followed over an extended period of time and occurring during business.

Of the other cases referred to, Mailhot, McLean and the Waples [2000] ORCD No. 10 are related to positive urine tests. In each of these cases the licensees were required to attend a rehabilitation program. In Forgie, the licence was reinstated on the condition that the licensee submits to future drug testing being done and not on a random basis. In none of these were there criminal convictions. Rehabilitation counselling and monitoring was required of the licensees.

The other cases referred to provide guidance as to the Commission’s handling of various types of misconduct. In the Waples case, the allegations related to aggressive conduct after a race towards another race participant and were not proven to the satisfaction of the panel. The appeal by Mr. Waples was allowed.

The case of Mr. Chabot involved his appearing before the Commission to ask for reinstatement of his licence. He was declared ineligible to be licensed until such time as he appeared before the Commission and submitted evidence as to what he had done to remedy his offence against racing, his fellow horsemen and the community. The violations that had lead to the cancellation of his licence included criminal charges. The panel of the Commission found:

“It is clear that as a driver, Mr. Chabot has a record of offences for not driving to the extent of the ability of the horse or for slowing down and causing disruption to a race. He also has offences with respect to the possession of injectibles on a racetrack. He has offended the rules with respect to wagering and in his dealing with the investigators. His record clearly reflects in the past a fundamental disregard for the interest of the wagering public and the protection of the public image of racing as a sport where athletes compete to the best of their ability in a fair contest. Drivers who do not compete to the best of their horses’ ability rob the racing fan of the excitement of the contest that draws them to the track and the teletheatres. Disregard for the Rules respecting wagering attracts the condemnation of the public and jeopardizes the well-being of the sport.”

The Commission panel rejected his application, based on the panel’s assessment of his application and what he needed to do to re-enter the racing community as a licensee.

In the Turcotte case, The Commission was dealing with an appeal of the Deputy Director’s order denying Turcotte’s application for a Standardbred owner/driver/trainer licence.

Over the history of Turcotte’s efforts to be licensed, he had falsified his application in terms of his answers to questions about criminal convictions and that licenses had been suspended or withdrawn. His owner/trainer/driver’s licence had been suspended for 14 years. He had secured a groom’s licence two years earlier than this hearing before the Commission and had worked under the supervision of his brother. The driver’s licence was the most important one for Mr. Turcotte. The suspensions issued starting in 1983 related to serious driving offences.

The Commission agreed to licence him as a trainer and as a driver on conditions. In disposing of the appeal, the Commission panel referred to the decision of the Commission in R. v. Philion SB 1171/1990 in which the Commission wrote:

“No sport or entertainment relies as heavily on the public perception of its honesty and integrity as racing.

For the lifeblood of the sport is the bettor. A bettor simply will not wager, or risk his money if he feels the race is not honestly carried out… If betting is the lifeblood of racing, then honesty and integrity are its soul, or life force… Those who choose to be in racing are required to have a level of conduct that is of the highest calibre.” (At p. 4).

The Commission panel also referred to the concept of rehabilitation:

“The Commission is also firmly committed to rehabilitation of offenders. There is no assumption that once an offender, always an offender. Fundamental to the time limited suspensions as a method of enforcement of the rules is the assumption that the offender may return to the community and will abide by the rules in the future.”

The Turcotte decision was decided under the old Racing Commission Act. The Racing Commission Act, 2000 is the legislation which empowers the Director to refuse to issue or to revoke a licence that is the basis of the appeal before us. The principles of protection of the public interest and the honesty and integrity of the sport are no less important now than when Turcotte was decided. The legislation provides for a specific period of two years before a person whose licence has been revoked can apply again. There is no automatic right to a licence at the end of the two years. We find in this legislative provision a time limit that is supportive, albeit indirectly, of the principles of rehabilitation, while protecting the Director’s (and the Commission’s) right in appropriate circumstances even after two years to refuse to readmit a person to the sport.

In the Martino case, Mr. Martino appealed the suspension of his Standardbred owner’s licence for conduct contrary to the public interest. Mr. Martino had pleaded guilty to charges of conspiracy under the Criminal Code and two charges under the Excise Act with respect to cigarette smuggling. He was sentenced to serve 18 months in the community and assessed a penalty of $45 million for taxes owned on the smuggled goods by the federal authorities. Mr. Martino also owned racehorses which the Commission found he continued to train without a licence. His record as owner did not have any violations of the Rules of Racing. In assessing whether or not to grant the appeal, the Commission referred to its decision in Flamboro Downs Holdings and the Belmont Hotel, SB 129/1995, July 14, 1995, in which the Commission held:

“Horse racing must be conducted and be seen to be conducted with the utmost integrity. The future of the industry depends on maintaining the public’s confidence that it is being operated totally ‘above board’”.

The Commission held that those participants involved in horse racing must be people of honesty and integrity in whom the public has confidence. It referred to a decision of the Alcohol and Gaming Commission, Kristine Elizabeth Cowan, File No. 677729, June 2, 1999 and adopted by the Commission in the case of Frank Pugliese, SB 18/2000 January 28, 2000, in which the Alcohol and Gaming Commission held as follows:

“Lawful gaming is a highly regulated industry which is properly under close scrutiny given its cash intensive nature and a rational public perception that if poorly controlled it will attract criminal conduct. The Gaming Control Act and the mandate of the Commission are predicated on the need to protect the public interest in lawful regulated gaming through constant vigilance and exclusion of those who could reasonably be expected to seek improper gain or to in any way stray from the highest standards of honesty and integrity and thereby bring the industry into disrepute. Consequently those who would benefit from participation in this industry must meet and be seen to meet rigorous standards of behaviour.”

The Commission has also indicated in decisions that it will not tolerate abusive or improper conduct as between licensees of the Commission or towards the Judges or Stewards. (See Re Samuel Quaranta, John Quaranta and Nicholas Luca COM TB 006/2005 and Re Bert Smith COM SB 001/2005). In neither of those cases were criminal convictions in play. Significant periods of suspension were imposed in both those decisions as well as fines. Samuel Quaranta was found to have violated Rule 15.11.1 of the Rules of Thoroughbred Racing, was suspended for 30 calendar days commencing at the beginning of the 2006 racing season, and fined the sum of $1,000.00. John Quaranta was found to have violated Rule 15.11.1 of the Rules of Thoroughbred Racing, and was fined the sum of $500.00. Nicholas Luca was found to have violated Rule 15.11.1 of the Rules of Thoroughbred Racing, and was fined the sum of $500.00.

Bert Smith was found by the Commission, with respect to one appeal, to have violated Rules 6.17 (c) and (d) and 6.20(b). The Commission ordered his licence to be fully suspended for 10 racing days. With respect to the second appeal, Mr. Smith was found by the Commission to have violated Rules 6.17 (c) and 6.20(b). The Commission ordered his licence to be placed on probation for one year, that his licence be suspended for 30 racing days, 20 of which are stayed, which stay is to be lifted and the 20 days suspension applied in addition to any penalty in the event Mr. Smith is found to be in violation of the Rules as a result of any occurrence within the probationary period, and he was fined $3,000.00.

In each of these cases the violations related solely to the Rules of Racing and occurred either on the backstretch or in the public areas of the grandstand where other licensees or members of the public could observe the events and where the Commission’s jurisdiction could be relatively easily exercised. In Mr. Mansfield’s case the matters that give rise to the Director’s decision are criminal in nature and relate to events on private property where scrutiny either by the police or by the Commission is severely limited and enforcement depends entirely on complaints to either of them and successful prosecution.

Rick Zeron was fined $25,000 for misconduct and was suspended for 35 days. Mr. Zeron is a highly successful standardbred driver. The fine was sufficient to attract his attention to the need to change his behaviour and the suspension represented a considerable impingement on his ability to earn a living. In this case Mr. Manfield’s earnings either as a driver or as a trainer total in gross less than $150,000 per year. In his entire lifetime his earnings as a trainer barely exceed $1,000,000. The evidence of Mrs. Mansfield is that any significant fine would cripple the business and would be the same as the revocation of the licence.

We accept that Mr. Mansfield is remorseful and is taking active steps to correct his conduct by participation in counselling and rehabilitation programs. We cannot, however, ignore the need to ensure that trainer/groom relationships are governed by the appropriate standards of conduct. Mr. Mansfield’s conduct was criminal in nature and attracted the sanction of society. We agree with the Director that the convictions for sexual assault provide reasonable grounds to conclude that the licensee will not act in accordance with law or in the public interest. Based on the testimony his misconduct is not necessarily of a continuing nature, but we cannot be certain he will not re-offend and we note that his second conviction arose from incidents during the period he was on probation from the first conviction. Based on his record of Commission rule violations, we cannot, however, conclude that he will not abide by the rules or the terms of his licence.

We therefore grant the appeal to the extent that Mr. Mansfield’s licence is not revoked. By not revoking the licence the Commission retains power to supervise Mr. Mansfield’s conduct in regards to the grooms he employs.

Mr. Mansfield’s licence is suspended for all categories for 3 months, his owner and trainer licence for an additional 3 months, and he will serve a probationary period of an additional 12 months. In addition, Mr. Mansfield will pay a fine of $5,000.

While the fine is significantly less than that imposed on Mr. Zeron, the financial information we have indicates that the fine is nonetheless a significant deterrent, as is the suspension which is much longer than Mr. Zeron’s suspension. The fine is also greater than that imposed on Mr. Bert Smith or on the Quarantas and Mr. Luca, none of which cases involved criminal convictions. We are allowing Mr. Mansfield to return to driving sooner than to owning or training racehorses because his activities as a licensed driver will be under the supervision of others and open to the oversight of the race officials and judges, thereby limiting the opportunities for difficulties to arise.

We further order that in the course of the suspension and the probationary period, Mr. Mansfield is required to continue to take counselling of the nature recommended in the Report at Tab 2 of Exhibit 4. The Report of Mr. Kushnier indicates that Mr. Mansfield would benefit from further therapy to help prevent him relapsing to patterns of abusive communication and/or behaviour in the long term. The Report also recommends that new operating procedures, guidelines and boundaries to the workplace be established to promote staff safety. The Report also recommends an instructional program for Mr. Mansfield that addresses sexual harassment in the workplace. The completion of the recommended programs and the ongoing therapy are an important condition of our decision to allow Mr. Mansfield to continue in the industry much sooner than proposed by the Director in the proposed order and therefore the terms that provide for ongoing support and monitoring are a condition of his returning to the industry in any capacity.

The suspension shall not commence until 15 days after the release of this decision. At the end of the three month suspension period imposed on all his licences, Mr. Mansfield will provide proof satisfactory to the Director of Racing that he has completed the programs recommended by Mr. Kushnier as set out in the Report and that he has implemented new operating procedures guidelines and boundaries in the workplace also as recommended in that Report. The Director of Racing will undertake whatever investigation he believes is appropriate to corroborate the material provided in satisfaction of the terms of this decision and Mr. and Mrs. Mansfield will co-operate with the Director in this regard.

DATED this 5^th^ day of October, 2005.

_____________________________

Lynda Tanaka

Chair