IN THE MATTER OF THE RACING COMMISSION ACT 2000, S.O. 2000, c.20;
AND IN THE MATTER OF
STANDARDBRED LICENSEE BRAD FORWARD
Brad Forward appeared before a Panel of the Ontario Racing Commission on July 6, 2005 in accordance with Rule 6.38.05(iii) of the Rules of Standardbred Racing. Chair Lynda Tanaka and Commissioners George Kelly and Brenda Walker convened to hear the matter. Brad Forward appeared on his own behalf and counsel Brendan Van Niejenhuis appeared on behalf of the Administration.
On hearing the evidence of Mr. Forward and Chaplain Les Riggs, and on reading the exhibits filed and on hearing submissions of the parties, the Commission ordered as follows:
Mr. Forward is suspended for a period of five (5) months, effective June 16, 2005 last;
One hundred and ten (110) days of Mr. Forward's suspension is hereby stayed, subject to the remainder of this Ruling;
Before the stay provided for in paragraph (2) may take effect, Mr. Forward shall provide proof of satisfactory completion of the residential addiction treatment program at Brentwood Treatment Centre in Windsor, Ontario, which shall be by means of a letter from a responsible person at Brentwood Treatment Centre addressed to Terry Stone, Director of Racing, Ontario Racing Commission;
Upon the conclusion of the suspension as served by Mr. Forward, Mr. Forward shall be placed on probation for a period of one (1) year and his licence shall, during the term of probation, be subject to the following conditions:
(a) He shall present himself for testing to the ORC Drug Testing Unit each time it is at a track where he is racing or programmed to race;
(b) He shall abstain from the use of all controlled substances, other than prescription medication in accordance with the prescription, and provide a written undertaking to Terry Stone, Director of Racing, Ontario Racing Commission, to do so;
(c) If during the period of probation he shall be found to be in violation of any of the drug or alcohol-related Rules of Standardbred Racing, including Rules 6.31, 6.32, 6.33 and 6.38, then the stay of the remaining one hundred ten (110) days of his suspension shall be lifted and that suspension shall go into immediate effect.
The Commission's reasons for decision form part of the transcript of the hearing and are attached to this Ruling.
DATED this 26^th^ day of July, 2005.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
ONTARIO RACING COMMISSION
STANDARDBRED HEARING
2
IN THE MATTER OF THE Racing Commission Act,
3 2000, S.O. 2000, c 20
4
-and-
5
6 IN THE MATTER OF Standardbred Licensee: BRAD FORWARD
7
8
9 BEFORE: Lynda Tanaka Chair
10 George Kelly Member
11 Brenda Walker Member
12
13
14 Appearance in the Hearing
Room of the Ontario Racing Commission, 7th
15 Floor, 20 Dundas Street West, Toronto,
Ontario, on the 6th day of July,
16 2005.
17 ------------
18
APPEARANCES:
19
Brendan Van Niejenhuis Counsel for the
20 Administration
21
Bradley Forward Unrepresented
22
Bill Fines Supervisor of Standardbred
23 Racing
24 Also Present: Chaplain Les Riggs
25
TORONTO COURT REPORTERS - TORONTO - ONTARIO
2
1INDEX OF PROCEEDINGS
2PAGE NO.
3Opening comments - Van Niejenhuis 3
4Brad Forward - Testimony 11
Brad Forward - Cross-Exam - Van Niejenhuis 18
5Questions from the Panel 22
6Chaplain Les Riggs - Testimony 24
7Submissions - Van Niejenhuis 29
Submissions - Forward 35
8
Reasons 48
9
10
EXHIBITS
11
EXHIBIT NO. PAGE NO.
12
1: Document brief with respect to 5
13 Brad Forward
14 2: Standardbred Canada printout of 21
15
16
17
18
19
20
21
22
23
24
25
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Opening comments - Van Niejenhuis - 3
1 -- Upon commencing, July 6, 2005 at 2:30 p.m.
2 THE CHAIR: Thank you. Be seated.
3 MR. VAN NIEJENHUIS: This is an
4 appearance before the Commission, rather than an
5 appeal, pursuant to 6.38.05. (iii) of the
6 Standardbred Rules and it arises from a positive
7 test for the cocaine metabolite benzoylecgonine;
8 b-e-n-z-o-y-l-e-c-g-o-n-i-n-e, which arose from
9 a sample given by the appellant Mr. Forward, who
10 is here today, on June 8th and the results from
11 which were reported to the Director of Racing on
12 June the 14th.
13 Now, this rule is the rule applicable
14 to second positive tests within a 24 month
15 period and the rule provides that when there is
16 a second positive test for a controlled
17 substance, including cocaine, the licensee is to
18 be referred to the Commission forthwith and that
19 the licensee is to be suspended forthwith upon
20 notification of the positive and that the
21 Commission is then to conduct a hearing and
22 there is restrictive terms on when that hearing
23 can occur.
24 Mr. Forward requested a hearing on or
25 requested a scheduling of the suspension hearing
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Opening comments - Van Niejenhuis - 4
1 on June the 23rd and that is in Exhibit 1, tab 1
2 and that is why we're now here.
3 Now, there is no dispute on the --
4 THE CHAIR: I'll take you a step
5 back. We have a brief of documents.
6 MR. VAN NIEJENHUIS: Yes.
7 THE CHAIR: I think you were referring
8 to Exhibit 1 but it hasn't formally been marked
9 as Exhibit 1.
10 MR. VAN NIEJENHUIS: You're quite
11 right.
12 THE CHAIR: And the licensee has a copy
13 of it, does he?
14 MR. VAN NIEJENHUIS: The licensee has
15 been given a copy.
16 THE CHAIR: Is there any issue with our
17 entering this as the first exhibit? Are you
18 using these documents or referring to them? Any
19 problem?
20 MR. FORWARD: Pardon me?
21 THE CHAIR: Is there any problem with
22 our marking these as Exhibit 1 and referring to
23 the documents?
24 MR. FORWARD: No.
25 THE CHAIR: So, Exhibit 1 will be the
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Opening comments - Van Niejenhuis - 5
1 Administration's document brief of 13 tabs.
2 MR. VAN NIEJENHUIS: Thank you.
3 Excuse that oversight.
4 EXHIBIT NO. 1: Document brief with
5 respect to Brad Forward.
6 THE CHAIR: That's all right.
7 MR. VAN NIEJENHUIS: Now, there is no
8 dispute on the essential facts as are plain from
9 the content of Exhibit 1. So what I propose to
10 do is take you through those essential facts in
11 terms of the documents in Exhibit 1.
12 Tab 2 is the positive test report from
13 Maxxam Analytics reporting the positive test in
14 respect of this licensee, analyzed on June 10th,
15 reported on June 14, testing positive for the
16 cocaine metabolite identified.
17 At tab 3 is the Maxxam Analytics
18 custody and control form associated with that
19 positive test and, as you'll see, this has been
20 signed by Mr. Forward as the donor.
21 Tab 4 is the resulting ruling, which
22 is in accordance with the terms of the rule
23 which we'll come back to, but suspending Mr.
24 Forward as of June 16 until he provides a
25 negative urine sample at his expense and appears
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Opening comments - Van Niejenhuis - 6
1 before this Commission as he is doing today.
2 Tab 5 then is the requisite negative
3 urine sample result from Maxxam Analytics, dated
4 the 22nd of June, and tab 6 is again a Maxxam
5 Analytics custody and control form for the
6 re-test. As you'll see, it's been certified to
7 have been given by Mr. Forward by signature of
8Mr. McEachern and Mr. Forward has again signed
9 this as donor.
10 Now, as one of the requisite facts on
11 a hearing under this rule is that it be the
12 second positive. If you'll turn to tab 7,
13 there's a ruling in relation to the first
14 positive occurring within the 24 month period
15 and that is a ruling dated November 25, of 2004
16 suspending him. That is an order of the
17 Director of Racing suspending Mr. Forward until
18 he provides a negative urine sample. That is
19 under Rule 6.38 (e) (i) which of course governs
20 first positive test results.
21 As you'll see from tab 8, the positive
22 test result in that case was for THC or
23 marijuana and it was returned on November the
24 25th of last year.
25 The receipt form from Maxxam is at tab
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Opening comments - Van Niejenhuis - 7
1 9 and then the following negative test required
2 is produced at tab 10. So that requirement was
3 complied with. December the 3rd of 2004 is the
4 date of that.
5 Tab 11 was again the custody and
6 control form. At tab 12 then is the consequent
7 ruling under 6.38.(e)(i) which, by the way, is
8 simply the old lettering. The new 2005 rules
9 are slightly different but it's the same rule as
10 6.38.05(i) in substance.
11 This ruling recognizes that he has
12 provided his negative sample and suspended Mr.
13 Forward from driving, warming up and post
14 parading for 15 days and fined him $500. Again,
15 that is from December of 2004. Tab 13 is simply
16 the notice of hearing. So these essential
17 facts are, as I understand, agreed between the
18 parties and give rise to the hearing under
19 6.38.05(iii).
20 Now, just pausing on that rule a
21 moment, the requirements of that rule applicable
22 to a second positive test require that the
23 licensee not be permitted to resume his or her
24 functions until such time as he or she has
25 enrolled in a recognised substance abuse program
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Opening comments - Van Niejenhuis - 8
1 and demonstrates to the satisfaction of the
2 Commission that he or she has either
3 satisfactorily completed it or is progressing
4 satisfactorily, if the program has not been
5 completed, although the Commission retains a
6 discretion under that rule to dispense with that
7 requirement if appropriate.
8 Now, I'll ask Mr. Forward to confirm
9 this but I understand that these matters that
10 I've addressed so far are agreed. Mr. Forward
11 will be giving evidence, as I understand it, on
12 the issue of the substance abuse program and the
13 gentleman to his left whose name I've misplaced
14 --
15 CHAPLAIN RIGGS: Chaplain Les Riggs.
16 MR. VAN NIEJENHUIS: Chaplain Les Riggs
17 will, I understand, also be giving evidence but
18 in light of the fact that these matters are
19 agreed and are requirements of Rule 6.38.05
20 (iii), I'll ask Mr. Forward to confirm that and
21 be prepared to go ahead with that at this point
22 in time.
23 THE CHAIR: Mr. Forward, you've heard
24 the statement by counsel for the
25 Administration. Is there anything you wish to
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Opening comments - Van Niejenhuis - 9
1 correct or amend or disagree with
2 MR. FORWARD: I think -- I think
3 everything is what he said is good, I think.
4 THE CHAIR: All right. Now, having
5 put in this book in as an exhibit then, I take
6 it you're not going to call any other evidence
7 at this time at this stage?
8 MR. VAN NIEJENHUIS: I do not intend
9 to.
10 THE CHAIR: Then, Mr. Forward, it's
11 time for you to decide what you want to do in
12 terms of your case and counsel for the
13 Administration indicated you were going to
14 perhaps testify. Would you be taking the
15 stand?
16 Let me explain to you, you're a party
17 in these proceedings and you're entitled to do
18 these things: You're entitled not to take the
19 stand to give evidence at all. If you take the
20 stand, you'll be cross-examined. You give your
21 evidence under either an oath or an affirmation
22 which is binding on you.
23 You can call evidence from other
24 people as well and, in turn, they would be
25 cross-examined by counsel for the
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Opening comments - Van Niejenhuis - 10
1 Administration.
2 You are entitled, as a party, to make
3 submissions to us. Now, sometimes it's very
4 hard for lay people to understand the difference
5 between giving evidence and making submissions
6 but the easiest way to understand it is this: If
7 there are any facts that you want to give to us,
8 such as what you're doing in terms of your
9 substance abuse program or what you're not
10 doing, why you've done certain things or
11 haven't, that you intend to rely on in telling
12 us what we should do, then you should give that
13 information in evidence so that those facts are
14 on the record as evidence.
15 MR. FORWARD: Okay.
16 THE CHAIR: If you simply tell them to
17 us as submissions, without any evidence as an
18 underpinning to it, then we don't have to give
19 it any weight and you want us to give weight to
20 what it is you have to say. So, I think it's
21 up to you what you want to do. Once the
22 evidence in a case is completed and the
23 Administration will have an opportunity to
24 cross-examine you and to call other evidence if
25 they wish but, once you have done that, then
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Brad Forward - Testimony - 11
1 there will be an opportunity for both the
2 Administration and you to make separate
3 submissions to tell us what we should do; to
4 make recommendations to us as to what we should
5 do in this matter. Now, I understand you want
6 to give evidence and Chaplain Riggs wants to
7 give evidence. Is that correct?
8 MR. FORWARD: Yes.
9THE CHAIR: Then why don't we go ahead
10 with that and Mr. Fines will administer the oath
11 or take your affirmation and our witnesses
12 usually sit in the chair with the microphone.
13 MR. FORWARD: Do I go first?
14 MR. FINES: Yes.
15 ---------------
16 BRAD FORWARD, SWORN,.
17 THE CHAIR: Go ahead, please, sir
18 MR. FORWARD: Um, I'll just start right
19 from how I got involved and is that what I'll
20 do?
21 THE CHAIR: That's fine. I think it's
22 good for to you introduce yourself.
23 MR. FORWARD: Okay.
24 THE CHAIR: You're a licensee of the
25 Commission?
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Brad Forward - Testimony - 12
1 MR. FORWARD: Right.
2 THE CHAIR: And you're licensed as
3 what, sir?
4 MR. FORWARD: Okay, I'm Brad Forward,
5 I'm a driver. I've been driving now for
6 approximately about 16 years. I've never had
7 any trouble with like this before other than
8 last November and it's probably for about almost
9 the last two years I've been -- I can't blame
10 it on anyone else what I've been doing. It's
11 -- I haven't -- I've been just getting out a
12 little bit probably I could say with the wrong
13 crowd and I'm -- you know, don't get me wrong;
14 I'm not a drug user but I got picked up on it
15 but I am -- I do have a drinking problem and
16 when I go drinking it's everything that seems to
17 happen is always to a point late at night, and
18 I've known that for some while, and I did speak
19 to my wife a few times about it and in the past
20 eight months is when I've got introduced to
21 cocaine and I'm not a regular user of it but I
22 did -- as I told my counsellor, it's been five
23 or six times that I did use it.
24 I've been struggling with some
25 problems at home. I've been having really good
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Brad Forward - Testimony - 13
1 success in my career as for racing but as for
2 myself I -- I haven't been happy with myself in
3 some while. I don't know. They are the
4 problems I'm struggling with right now at
5 counselling.
6 When this all happened, it was time
7 for me -- it was time for me to go seek some
8 help and when I'm -- it was a struggle. It
9 really was struggle to go in and stay there. I
10 got three girls at home. That was the hardest
11 part. That was the hardest part of all this
12 happening, to realise what I was doing not only
13 to my career but to my family. They all depend
14 on me in many ways and until I got into this
15 program I always thought I was a great father
16 and I was always there for them but until I got
17 into this program I realised how much that I --
18 that I wasn't there and I can honestly say this
19 program is doing an awful lot for me as a person
20 and I'm learning -- I'm going to have to learn
21 quite a bit and it's not over yet and I am an
22 alcoholic and I don't think -- I don't think
23 there's in a month's time this will be over
24 either. It's I plan on doing my meetings
25 because I really enjoy the person that I am
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Brad Forward - Testimony - 14
1 today and what it's doing for me.
2 We just bought a home two months ago
3 and my wife she doesn't work and it's now all I
4 got now is just my own troubles on my shoulders
5 that I created and it's been a pattern. It's
6 been a pattern for me the last probably year.
7 You know, I spoke to my wife sometimes
8 about going seeing a doctor. You know, I don't
9 know if I have depression or what it is. My
10 family says how can you not be happy with what
11 you got and I never understood it but it's this
12 program has really helped me out and I don't
13 want -- I really don't to give this program up
14 and they know that. And it doesn't matter if --
15 it doesn't matter what I get; I'm not going to
16 give that program up and if it helps to get my
17 career back on, if I have to go twice a week or
18 I'll go do a urine sample at my own cost
19 anywhere, any time because this is all I got and
20 if I lose this I'll lose a lot.
21 CHAPLAIN RIGGS: What's the name of the
22 program and how long are you going for?
23 MR. FORWARD: It's I have my sheet
24 here.
25 THE CHAIR: Can you read it out to us;
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Brad Forward - Testimony - 15
1 what the name of the program is?
2 MR. FORWARD: It's Brentwood. Do you
3 want me to read the whole letter?
4 THE CHAIR: Well, maybe you should show
5 Mr. Van Nienjenhuis and he can help you.
6 MR. VAN NIEJENHUIS: I think it might
7 be useful if the witness would read the letter
8 into the record, just so that it is all clear.
9 MR. FORWARD: "To whom it may concern:
10Administration date and program. This is
11 confirmation that Bradley Forward was admitted
12 to the Brentwood residence program on June 20,
13 2005 for treatment.
14 Our program is highly structured and
15 consists of daily meetings, one-on-ones, intense
16 group therapy and individual counselling in a
17 residential setting.
18 Bradley is responsive and receptive to
19 treatment and is making every effort to
20 surrender to his way of life and applying the
21 principles of the program to his own life.
22 Each client is assessed on an ongoing
23 basis throughout the program. Length of
24 program is determined by a client's individual
25 needs and programs are streamlined according to
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Brad Forward - Testimony - 16
1 what types of treatment each individual
2 requires.
3 Aftercare: It is our experience here
4 at Brentwood that aftercare is a critical
5 element of recovery in maintaining sobriety.
6 Aftercare consists of attending alumni meetings
7 at least once a week, seeking counselling on a
8 regular basis and attending group therapy
9 sessions. Aftercare program is outlined and
10 highly recommended to all our clients. We find
11 that this added support is of great benefit to
12 our clients further developing the tools and
13 coping skills learned while on this program.
14 If you require any information or have
15 any questions, please do not hesitate to contact
16 our office."
17 THE CHAIR: Thank you.
18 MR. FORWARD: Thank you.
19 THE CHAIR: Is there anything else you
20 would like to add?
21 MR. FORWARD: I'm just a pause of mind
22 right now.
23 THE CHAIR: Can I ask you a couple of
24 questions?
25 MR. FORWARD: Sure.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Brad Forward - Testimony - 17
1 THE CHAIR: You're licensed as a
2 driver. And how long have you been licensed as
3 a driver?
4 MR. FORWARD: Approximately 16 years.
5 THE CHAIR: 16 years. And where did
6 you race?
7 MR. FORWARD: In Newfoundland it was
8 Avalon Raceway; changed names many times.
9 Through Nova Scotia, Prince Edward Island,
10 Delaware, Maryland, Virginia and Michigan and
11Ontario.
12THE CHAIR: In Ontario, are there
13 certain tracks you're at?
14 MR. FORWARD: There's quite a few
15 tracks.
16 THE CHAIR: So, you're at quite a
17 few. South-Western Ontario mostly?
18 MR. FORWARD: Mostly, yes.
19 THE CHAIR: And you've just bought a
20 new home?
21 MR. FORWARD: Mhmn.(affirmative).
22 THE CHAIR: And in a week, in Ontario,
23 how often would you drive?
24 THE DEPONENT: Probably about 50 to 75
25 drives.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Forward - cross-exam - Van Niejenhuis - 18
1 THE CHAIR: Now, in November the drug
2 positive was a marijuana and this one in June is
3 a cocaine and you indicated that you are an
4 alcoholic. And is the drug use then after
5 you've had a lot to drink?
6 MR. FORWARD: Yes.
7 THE CHAIR: Okay. Counsel, do you
8 have some questions?
9 MR. VAN NIEJENHUIS: Just a couple.
10 ---------------
11 BRAD FORWARD,
12 EXAMINATION BY MR. VAN NIEJENHUIS:
13Q. The program at Brentwood, is it
14 -- you're not in residence there? You're just
15 attending there daily?
16 A. No; I'm in residence.
17 Q. You're in residence there. Was
18 it from June 20 that you've been in residence
19 continuously since?
20 A. Ever since.
21 Q. Except for today?
22 A. Except for today and when I had
23 to come for a urine sample to Mississauga and I
24 got out for a couple of hours to see my
25 daughter's graduation.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Forward - cross-exam - Van Niejenhuis - 19
1 Q. And, just so I'm clear, how long
2 is the residential period expected to be at
3 Brentwood in this program? I may have missed it
4 in the letter?
5 A. Says in the letter -- can I read
6 it again to him?
7 THE CHAIR: Mhmn.(affirmative)
8 BY MR. VAN NIEJENHUIS:
9 Q. Sure.
10 A. "Bradley is responsive and
11 receptive to treatment and making efforts --
12 -- each client is assessed on an ongoing basis
13 throughout their program. Length of program is
14 determined by a client's individual needs and
15 programs are streamlined according to what types
16 of treatment each individual requires."
17 Q. Okay. So, do you have an
18 expectation or a sense of how long you expect or
19 have been told how long your individualized case
20 will be in residence at Brentwood?
21 A. He told me -- he told me two days
22 ago that I was progressing really well. He
23 said: Most people don't get this for a while.
24 He said: You're getting this really good.
25 As for when I'm -- it looked like it
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Forward - cross-exam - Van Niejenhuis - 20
1 was going to be a month is what it looked like I
2 was going to be in it in for and then I'm
3 supposed to keep going back for meetings. He'd
4 actually want me to come back for meetings more
5 than once a week.
6 Q. He was suggesting twice a week
7 was he?
8 A. Yes.
9 Q. So, you expect to be a resident
10 in Brentwood say towards the end of this month?
11 A. I'm running into my third week
12 now, so approximately another ten days.
13 Q. Okay. Just want to -- I've
14 given you a copy earlier of your licensing
15 history with Standardbred Canada. It was this
16 printed out document. I just want to know if
17 you can just confirm that that is what that is
18 and I'm going to ask to make that an exhibit so
19 the Panel can also refer to your licensing
20 history in making their decision.
21 A. Say it again?
22 Q. Do you have any difficulty with
23 this document as being your Standardbred Canada
24 history?
25 A. No, no.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Forward - cross-exam - Van Niejenhuis - 21
1 Q. I'm going to ask to make this an
2 exhibit at this point.
3 THE CHAIR: Exhibit 2. This is the
4 Standardbred Canada printout?
5 MR. VAN NIEJENHUIS: Yes.
6 THE CHAIR: Of licensee history.
7 EXHIBIT NO. 2: Standardbred Canada
8 Printout of history with regard to
9 Brad Forward
10 BY MR. VAN NIEJENHUIS:.
11 Q. Mr. Forward, do you have a copy
12 of this document in front of you?
13 A. Yes.
14Q. Can I just ask you, sir, on this
15 document I don't see any prior rulings in
16 Ontario relating to positive drug tests but,
17 could you just advise me, have you had previous
18 rulings for positive drug tests, first of all,
19 in any of the American jurisdictions?
20 A. I've been tested for drugs. I
21 never ever got no positive test for drugs up
22 until November.
23 Q. That includes in the U.S. and all
24 the Canadian jurisdictions?
25 A. Yes. I've been tested.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Questions from the Panel - 22
1 Q. Those are all my questions.
2 THE CHAIR: Is there anything else you
3 wish to say?
4 MR. FORWARD: I've been tested probably
5 ever since I came to -- ever since I came to
6 Ontario I think, which is approximately about
7 six years, every time they ever came to Windsor
8 Raceway. I don't think there was never a time
9 that I wasn't on a test and I've passed it every
10 time and except for November and this time here
11 and I think since November -- I'm not sure exact
12 but it was right around 15 times that I've got
13 tested since then and it's, again, I just want
14 to point out that I'm not a drug user. I know I
15 got picked up on it but I just want to let you
16 know that I'm not going to admit that I don't
17 have problems. I know I've got problems.
18 THE CHAIR: Questions, Mr. Kelly?
19 MEMBER KELLY: Just one question. You
20 mentioned at one point in time you got involved
21 with the wrong crowd. Have you been able to
22 separate yourself from that crowd?
23 MR. FORWARD: It was just recently that
24 I did that.
25 MEMBER KELLY: Okay.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Questions from the Panel - 23
1 MR. FORWARD: When I was -- I have many
2 support people calling me and showed up at
3 Brentwood. Those so called friends, I never
4 had a phone call or visit from them, so it's --
5 I need to keep my friends to a minimum and I
6 need to keep myself home.
7 Every year that I've been at the race
8 track, for the first four years I went home
9 afterwards. I went home, I watched Discovery
10 channel every night, my wife had something on to
11 eat and it's just -- almost in the last two
12 years I just took a U-turn and, like I say, I
13 didn't realise what I was actually into until I
14 was went to Brentwood and I had a lot of time to
15 think about what I did.
16 THE CHAIR: Any questions, Mrs Walker?
17 MEMBER WALKER: Just a couple;
18 Brentwood, is it in Guelph? Where is Brentwood?
19 MR. FORWARD: No. It's right in
20 Windsor.
21 MEMBER WALKER: It's right in Windsor.
22 So, you live in Windsor?
23 MR. FORWARD: I live in Amherstburg.
24 MEMBER WALKER: When your program is
25 over, will you be going to Brentwood for the
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Chaplain Riggs - Testimony - 24
1 meetings?
2 MR. FORWARD: Yes.
3 MEMBER WALKER: Okay.
4 THE CHAIR: You're going to have to
5 adjust your driving schedule to accommodate
6 those meetings. You don't see a difficulty in
7 doing that?
8 MR. FORWARD: No.
9 THE CHAIR: Thank you very much.
10 MR. FORWARD: Thank you.
11 THE CHAIR: Chaplain Riggs?
12 ---------------
13 CHAPLAIN LES RIGGS, SWORN:
14 THE CHAIR: Thank you. Now, I'm going
15 to assume that Mr. Forward isn't going to ask
16 you questions and elicit answers?
17 CHAPLAIN RIGGS: Correct, yes, Ma'am.
18 THE CHAIR: He isn't familiar with our
19 process.
20 CHAPLAIN RIGGS: Yes, Ma'am.
21 THE CHAIR: So I'm going to invite to
22 you make your statements and if there are any
23 questions that's fine. Even, actually, Mr.
24 Forward if you want to ask some questions after
25 Mr. Riggs makes his statement, that's fine.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Chaplain Riggs - Testimony - 25
1 We'll give you that opportunity, okay. Is that
2 a fair way of going forward?
3 MR. FORWARD: That's fair. I got no
4 questions, though.
5 THE CHAIR: Well, we'll see, okay.
6 CHAPLAIN RIGGS: I am Chaplain Les
7 Riggs and I'm with the Race Track Chaplaincy of
8 America. I've been invited come up here and
9 start a chaplaincy program with OHHA and I've
10 been travelling around to all the race tracks
11 trying to get to know all the people.
12 I've travelled to 14 of the race
13 tracks so far and I came to Windsor on June the
14 6th, I believe it was, and I met Mr. Forward at
15 that time and then the next night I was at
16 Hiawatha, and I seen him at Hiawatha again that
17 night, and I had talked to him for little bit
18 and I happened to see him out on the race track
19 a few races later; I happened to be standing on
20 the rail by myself and he made a pass by me and
21 just kind of acknowledged that I was there and
22 he came back around and he kind of pulled up and
23 he looked at me and he says: You know, one of
24 the hardest things for a person to do sometimes
25 is to talk to somebody. And I could tell that
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Chaplain Riggs - Testimony - 26
1 at that moment that he was reaching out to me
2 and wanted to share some stuff that was going on
3 in his life.
4 And being new here in the area and
5 trying to get this program together I wasn't
6 able to get back with him like I felt like I
7 needed to and so when I heard that he was in
8 this kind of problem one of the guys that has
9 been helping him a lot asked me if I would talk
10 with him and so I met with him here last week
11 the day that he was out seeing his daughter
12 there.
13 I was able to go to his house, and I
14 was able to meet his wife and children, and we
15 had a long talk and he begin to share with me
16 some of the things that had been going on with
17 him in the last couple of years and how his
18 priorities had changed and how some of the
19 pressures was building upon him and sometimes
20 it's easy to get into drugs and alcohol and
21 relieve some of that pressure.
22 But, as I began to talk to this young
23 man, I began to realise he's got a lot of future
24 ahead of him, that he is a good driver and he's
25 a dedicated person but he's picked up the wrong
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Chaplain Riggs - Testimony - 27
1 set of friends and they have kind of distorted
2 some of his values and I could see he was
3 reaching out trying get back to some of the
4 values that he originally had.
5 He's got a wonderful family. They
6 love him dearly. But sometimes in this
7 business we do get pressed harder than we like
8 to get pressed and I think that Brad has done
9 quite well in the program for the sheer fact
10 that he's opened up his eyes and he's seen what
11 he's been doing to himself, what its cost him,
12 what its has cost him in the industry and he
13 desires to get back on track, get rid of some of
14 them old friends and some of that old baggage
15 that he's got. And I believe that he can do it
16 and I believe that he'll be responsible for
17 himself for taking the responsibility that it
18 takes to prove to the industry that he's worthy
19 to have his licence back.
20 He needs his licence back and I
21 believe that he'll be an example of what can
22 happen in this industry when things do go wrong
23 and I believe that he'll be a spokesperson for
24 it. That is one the hardest things he's had,
25 is being able to speak, and I spoke to his
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Chaplain Riggs - Testimony - 28
1 friend earlier and he said he wouldn't hardly
2 shut up on the way up here and I said that's
3 what he needs, that's exactly what he needs.
4 And I believe that is what this
5 program is doing for him is learning how to vent
6 some of the things that he has so he can be
7 responsible for the things that he is doing
8 right now. I believe he is responsible and he
9 showed me that he is willing to take the
10 responsibility to do whatever it takes to face
11 this problem that he has in his life and I just
12 pray for as much leniency for him as you can
13 give him. I appreciate it.
14 THE CHAIR: Thank you.
15CHAPLAIN RIGGS: Thank you.
16THE CHAIR: Mr. Forward, do you have
17 any questions?
18 MR. FORWARD: No, thank you.
19 THE CHAIR: Counsel?
20 MR. VAN NIEJENHUIS: I don't think I
21 have any questions if the witness.
22 CHAPLAIN RIGGS: Just one more thing.
23 I would like to say that, in the chaplaincy,
24 we're going to be here and we're going to be
25 here for him and we're going to kind of look
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Van Niejenhuis - 29
1 over these kind of situations so we can get
2 involved with these guys lives and we want to
3 get involved in his life.
4 THE CHAIR: Questions from the panel?
5 Mr. Kelly?
6 MEMBER KELLY: No, thank you.
7 THE CHAIR: Mrs Walker?.
8 MEMBER WALKER: No, thank you.
9 THE CHAIR: Thank you very much.
10 Anything else? Any other witness you would like
11 to call?
12 MR. FORWARD: No thanks.
13 THE CHAIR: Okay.
14 MR. VAN NIEJENHUIS: Well then, if
15 there is no reply evidence, I guess we'll go to
16 submissions. Just get your indulgence for one
17 moment.
18 THE CHAIR: Yes.
19 ---------------
20 MR. VAN NIEJENHUIS: I've provided Mr.
21 Forward earlier today with three cases, which
22 I'll provide to you in a moment, which are just
23 submitted by way of example and precedent as to
24 what has been done in previous cases involving
25 second offences within 24 months.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Van Niejenhuis - 30
1 One of them is the matter of Robert
2 Bodkin, one of them is the matter -- the recent
3 matter of Russell Lowry and one is a decision
4 from last Fall called Allan Cullen. So, I'll
5 hand those up now.
6 Now, there is a fair amount of
7 discretion under Rule 6.38.05 in terms of the
8 positive penalties that are imposed. There is
9 slightly less discretion or I should say there
10 is more direction in the Rules with respect to
11 the imposition of a program of treatment.
12 What I'll do, I suppose, is just
13 briefly go through each the three rulings and
14 look at the features that tend to be considered
15 appropriate in the case of second offences
16 bearing in mind that each case is different.
17In Mr. Lowry's case, the offence which
18 was a second offence in 24 months gave rise to a
19 6 month suspension; 180 day suspension, as well
20 as a 1 year probationary period at the
21 conclusion of that during which time Mr. Lowry
22 was required to present himself to the drug unit
23 whenever it was present at the track and
24 providing that if Mr. Lowry were to provide a
25 positive or other improper sample he would then
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Van Niejenhuis - 31
1 be suspended for the full term of the
2 probation. And those are the sorts of terms
3 that are commonly imposed.
4 If you look at the Bokdin ruling, it's
5 a similar set of terms. In this case, what was
6 done is what is directly contemplated by the
7 rule in that Mr. Bodkin was suspended sine die,
8 as it were, continuing until -- continuing until
9 he proved to the Administration that he had
10 successfully completed a treatment program and
11 forwarded the assessment report from the program
12 to the Administration and, at that point, the
13 Administration would take responsibility for
14 reinstating the licence in that case.
15 Again, this is another particular set
16 of facts but it was again a second positive.
17 On reinstatement, Mr. Bodkin was made subject to
18 similar conditions of presenting himself to the
19 drug unit every time it was at a track that Mr.
20 Bodkin was at, abstaining from the use of
21 controlled substances, and in fact he was
22 required to provide an undertaking, and again
23 failure to comply with the terms would have
24 resulted in an immediate suspension of the
25 licence similarly to what was done with Mr.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Van Niejenhuis - 32
1 Lowry.
2 Then finally we have a case from last
3 Fall which is again a lengthy suspension imposed
4 in this case of about 10 months for a second
5 positive offence. In this case, before the
6 conclusion of that 10 month period of suspension
7 Mr. Cullen was required to prove that he had
8 started and finished a drug rehabilitation
9 outpatient program and again he was put on a
10 probationary period for a period of about 18
11 months running to the end of 2006.
12 So, there is a variety of remedies
13 available but the ordinary course, in my
14 submission, of this rule is to suspend the
15 licensee either for a fixed period of time or to
16 continue the suspension that arises as a result
17 of the Rules until the substance abuse program
18 has been completed or a similar term involving
19 appropriate steps in a substance abuse
20 program.
21 In this case, you've heard the
22 evidence from Mr. Forward of the fact that he
23 voluntarily entered into a substance abuse
24 program following on the initial suspension and
25 you've heard the opinion from evidence from
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Van Niejenhuis - 33
1 Chaplain Riggs as to the efficacy of that and
2 the Administration doesn't take fundamental --
3 doesn't have a fundamental problem with the
4 nature of the program that has been put in
5 evidence. It's a residence program and it is
6 conceded that that program is one that is a
7 recognized substance abuse program within the
8 meaning of this rule.
9 Now, the appropriate penalty in the
10 Administration's submission would ordinarily be
11 something along the lines of what was imposed in
12 Mr. Lowry's case and the conditions arising
13 there.
14 This is, notwithstanding the
15 compelling statement by Mr. Forward, a second
16 violation and the integrity of the industry and
17 the public interest in maintaining the image of
18 the industry requires that -- requires that a
19 significant penalty be imposed, particularly in
20 cases of repeat violation by drug offenders.
21 It affects not only the image of the industry
22 but the confidence that the public has in the
23 integrity of the athletic performances.
24 Now, in this case, particularly in
25 view of the fact that Mr. Forward has
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Van Niejenhuis - 34
1 voluntarily entered into the program as
2 described, the Administration's submission is
3 that the period of suspension it would otherwise
4 seek of 6 months should be reduced to a period
5 of 5 months and that is the rationale for the
6 Administration's request that the Panel order a
7 suspension of 5 months of Mr. Forward's licence.
8 It is also the Administration's
9 position that there should be appropriate terms
10 and conditions placed upon Mr. Forward's licence
11 upon the resumption of his entry into the
12 industry and in particular the Administration
13 asks that the following conditions be imposed:
14 First, that upon successful completion, assuming
15 successful completion of the residential phase
16 of the program at Brentwood, that confirmation
17 from a responsible person at the Brentwood
18 facility as to the satisfactory completion of
19 the program be provided to the Administration
20 forthwith.
21 Second, that Mr. Forward continue in
22 the recommended non-residential component of the
23 Brentwood program on the terms suggested to him
24 or advised to him by a responsible person at the
25 Brentwood facility. From Mr. Forward's
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Forward - 35
1 testimony it appeared that that would be a twice
2 weekly commitment.
3 Third, that Mr. Forward should be on a
4 one year period of probation following the
5 conclusion of any fixed suspension period and
6 that, during that time, Mr. Forward should be
7 required to present himself to the drug unit to
8 provide a urine sample whenever testing is being
9 carried out at a race track at which he is
10 present or programmed to be present in
11 Ontario.
12 And, finally, that should Mr. Forward
13 provide a positive, improper or unacceptable
14 urine sample during the period of the probation
15 that he will be subject to a full suspension for
16 the remainder of the probationary period.
17 Those are the submissions on penalty,
18 by the Commission, subject to any questions you
19 may have.
20 ---------------
21 THE CHAIR: All right. Mr. Forward,
22 what is being asked by the Administration is
23 that we make an order that your licence would be
24 suspended for 5 months, starting today, and that
25 you would have to satisfy, by getting a letter
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Forward - 36
1 from Brentwood, that you have completed the
2 residential program and that you've been
3 following their recommendations for the
4 non-residential program, I guess you can call
5 it; the twice a week group sessions and
6 counselling and that at the completion of the 5
7 months you would get your licence back but you
8 would then be on a one year probationary period
9 in which you would have to be tested each time
10 the drug unit is there and, if you were tested
11 by the drug unit and there was a positive test
12 or there was an unacceptable sample or improper
13 sample, that you would serve a suspension for
14 the rest of the probationary period. The
15 probationary period would be one year.
16 By way of example if, for instance, 6
17 months into that probationary period you had a
18 positive test or there was an unsatisfactory
19 sample, or whatever, you would then be suspended
20 for 6 months then.
21 Now, you have an opportunity to tell
22 us what you think is an appropriate penalty.
23 Mr. Van Niejenhuis has asked us to look at the
24 order that was imposed on Russell Lowry and the
25 order for Alan Cullen and the order for Robert
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Forward - 37
1 Bodkin.
2 Now, I sat on Alan Cullen's case and
3 Alan Cullen has tested positive for cocaine five
4 times since 1998 and I don't think that is your
5 situation. I would regard that as a very
6 extreme penalty for you, given the fact that
7 you've only ever had one marijuana and one
8 cocaine positive, as compared to Mr. Cullen who
9 has had a series of them since 1998. He is
10 making efforts to get himself turned around.
11 He's appeared before me and I've been satisfied
12 he is making considerable efforts but he has a
13 history that you don't have, so I would regard
14 that as a very severe penalty for you; just
15 speaking for myself, the other two members they
16 can decide what they think but I'm just telling
17 you from my perspective that's a very severe
18 penalty for you.
19 The other two are more comparable to
20 your situation and Mr. Lowry whose licence was
21 suspended for 6 months and then he had a 1 year
22 probation and the conditions are there.
23 Mr. Bodkin was not suspended for any
24 period but he had to -- well, he was suspended
25 indefinitely. He was reinstated once he had
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Forward - 38
1 provided proof to the Administration that he had
2 successfully completed a treatment program. If
3 it took him 6 months to successfully complete
4 it, that is how long his licence was
5 suspended. If it took him 5 month or 4 months,
6 then the sooner he completed it, then the sooner
7 he got his licence back. So there was a
8 pressure on him to do what the counsellors
9 wanted so that the letter that would be sent
10 sooner rather than later.
11 Now, in your case, you have a
12 residential program which won't go on forever;
13 you're not going to live there for ever. It's
14 going to go on for a 30 day period; you've got
15 about another 10 days, and then there is group
16 sessions, individual counselling, et cetera,
17 recommended program that will go on for quite a
18 period ever time.
19 But your program really has two parts
20 to it; completion of a residential part and then
21 you have the ongoing counselling and they may
22 say you're finished and on your way subject to
23 perhaps AA meetings once a week in 6 months, 8
24 months whenever.
25 MR. FORWARD: I want to continue.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Forward - 39
1 THE CHAIR: Yes, you want to continue;
2 that's what you told us.
3 MR. FORWARD: Right.
4 THE CHAIR: So, with that background,
5 can you tell me what you think your penalty
6 should be?
7 MR. FORWARD: Compared to these three
8 cases?
9 THE CHAIR: Mhmn.(affirmative).
10 MR. FORWARD: Robert Bodkin Jr.'s
11 THE CHAIR: You prefer to have it in an
12 indefinite suspension and then, when the
13 counsellor, or the responsible person at
14 Brentwood, says this person has successfully
15 completed a portion of the program then you
16 could come back?
17 MR. FORWARD: Yes.
18THE CHAIR: That's what you prefer?
19MR. FORWARD: Yes.
20THE CHAIR: All right. A limited time
21 one might mean that, once you complete the
22 residential portion, then you would have say a
23 period of suspension but you could continue to
24 take your program long after that and you
25 wouldn't have to be limited.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Forward - 40
1 For instance, if we said a 3 month
2 limited suspension that kicks in starting when
3 you are outside or as of a specific date, for
4 instance, then you wouldn't have to wait for a
5 letter to be written to be reinstated. That's
6 another alternative.
7 MR. FORWARD: Okay.
8 THE CHAIR: But it's more risk on you
9 though because if you don't feel really feel
10 confident that you've taken this program and --
11 MR. FORWARD: I'm very confident.
12 THE CHAIR: -- and you're ready to go
13 back on the race track, then there is a
14 disadvantage there and we can't tell; it's up to
15 you.
16 MR. FORWARD: I'm very confident. I
17 know what I was losing and, like I say, it's
18 more than my driving career; it was my family
19 and I know what I was losing. I ain't going to
20 lose it again; I can guarantee you that.
21THE CHAIR: All right. Are there any
22 -- so you would prefer the Bodkin one which is
23 the indefinite or do you want the time limited?
24 MR. FORWARD: I'm not really -- this is
25 going a little bit over my head.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Forward - 41
1 CHAPLAIN RIGGS: How many days on the
2 time limited?
3 THE CHAIR: Well, we could agree with
4 the Administration's 5 months. We could say
5 we'll take into account in that 5 months the
6 period since the original suspension. We could
7 say -- and it will depend on how we discuss it,
8 how we've received your evidence. And so if it
9 were 5 months from June 20th, if we said 5
10 months starting June 20 say, you would then get
11 your licence back the end of October; October
12 20th. If we said, no, we're really impressed
13 with his evidence, we might put a shorter time
14 frame on it.
15 We want to be sure you have your
16 residential period and if the counsellor wants
17 you to spend a little more time in the
18 residential period, we don't want you to feel,
19 well, you've got your licence back; why aren't
20 you out there earning an income kind of thing.
21 MR. FORWARD: Right.
22THE CHAIR: But, on the other hand, you
23 need to be guided. So, it's tough for us too.
24 So, what do you think?
25 MR. FORWARD: Let the treatment centre
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Forward - 42
1 make the choice. Can you do that?
2 THE CHAIR: Yes. We can leave it as
3 they have in Mr. Bodkin's case that, when
4 they're ready to provide proof that you have
5 successfully completed the treatment program and
6 they forward an assessment report saying that;
7 we can do that too.
8 MR. FORWARD: So, I can either pick
9 this or I can just leave it up to you?
10 THE CHAIR: We actually would do the
11 picking. We're just asking for your input.
12 Chaplain Riggs, do you have some suggestions?
13 CHAPLAIN RIGGS: Yes. On that, with
14 the treatment centre doing it, does that mean
15 the in-house treatment or the follow-up
16 treatment also?
17 THE CHAIR: Well, that is something
18 else we can consider. We could say he's
19 suspended until we get a letter to Mr. Fines
20 that says he's finished his in-house program and
21 he's started into the group therapy or the twice
22 a week visits, and we can do that and then put
23 on terms and conditions, or we can -- which will
24 probably be the shortest one.
25 Or we can say no, you know, we think
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Forward - 43
1 this is really serious; cocaine and marijuana
2 around the back stretch are a real problem.
3 You're not the first driver from Windsor to come
4 forward and one of them has said to me: You have
5 no idea about the availability of drugs on the
6 back stretch and the kind of pressure there is
7 on drivers to purchase drugs. So that's
8 something we would have to think about; is
9 whether or not giving you that shorter
10 suspension would send the wrong message because
11 we have to think about the message it sends out
12 to other drivers.
13 MR. FORWARD: Okay.
14 THE CHAIR: So, you want to leave it up
15 to the treatment centre?
16 CHAPLAIN RIGGS: And then the
17 restrictions afterwards.
18 THE CHAIR: Yes, there would be a
19 probationary period, sure.
20 CHAPLAIN RIGGS: You would get your
21 licence back at the end of the treatment and
22 then you would have to have the follow-up
23 afterwards. Am I right in saying that?
24 THE CHAIR: Yes, I think that's right,
25 that's one of the options.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Forward - 44
1 MR. FORWARD: Okay.
2 THE CHAIR: That's the best scenario
3 for you is -- the best scenario for you is that
4 we issue an order that says, as soon as he
5 finishes the residential treatment, he can have
6 his licence back on condition that and then it
7 would be continues the twice weekly.
8 You recognize that, when you have
9 twice weekly sessions, that's going to cramp
10 your style in terms of the driving. It's going
11 to be tough for you to work on driving and to
12 turn down drives and opportunities because there
13 will be opportunities that you'll have to turn
14 down in order to attend your counselling and
15 you're going to have to make some decisions
16 there yourself as you go along the way. But
17 that's clearly the one that's to your advantage
18 assuming that you continue to satisfy Brentwood
19 that you're making good progress.
20 MR. FORWARD: Okay.
21 THE CHAIR: Do you have any submissions
22 on that alternative which, as I interpret it,
23 would be that at the completion of the
24 residential program the Administration will get
25 a letter from them saying he's completed the
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Forward - 45
1 program, he's making good progress, he's
2 committed to continuing treatment through the
3 twice weekly sessions and then we impose a
4 probationary period that has conditions such as
5 Mr. Bodkins' 1, 2 and 3 and we might tighten
6 them up or not but the Bodkin one is 2002.
7 MR. VAN NIEJENHUIS: Without resiling,
8 obviously, from the Commission's position, the
9 tweak I think I would see in terms of the
10 conditions would be that Mr. Forward be required
11 to continue -- be expressly required, as a term
12 of the probation, to continue if it's twice
13 weekly if that's what the responsible person at
14 Brentwood says, then twice weekly and that there
15 could be a consequence for failing to keep that
16 up.
17 THE CHAIR: Yes. The thing I would be
18 concerned about is he comes out of the
19 residential program and there is a transition
20 then back with his family and if he is back
21 driving right away then it makes it there are
22 three different things he has to balance; family
23 and reintegrating with the family; that may not
24 be as easy as Mr. Forward would assume if there
25 have been real problems there and it is probably
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Forward - 46
1 worth some time.
2 Then there is the issue of getting
3 established with the twice weekly and in the
4 meantime there is somebody coming to him and
5 saying I've got $100,000 race and you, Brad, are
6 the guy. And so there are those different
7 demands. So that's what's bothering me a
8 little bit is whether we shouldn't at least have
9 completion of the residential plus a period of
10 suspension when he's getting established in the
11 twice a week
12 MR. FORWARD: If I may, it's the
13 program is -- the doors are open six days of the
14 week and Monday through Friday is from 8 o'clock
15 to 6 o'clock and I never race on Monday,
16 Tuesday.
17 THE CHAIR: So there would be times
18 when you could get in.
19 MR. FORWARD: I can go every Monday and
20 Tuesday.
21 MEMBER WALKER: Well, you can go in the
22 morning too. It's open 8 o'clock in the
23 morning.
24 THE CHAIR: Yes. What is Mr. Fine's
25 concern?
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Submissions - Forward - 47
1 MR. VAN NIEJENHUIS: Concern is that of
2 course if there is a -- if there is to be
3 conditions relating to ongoing requirements and
4 I think this maybe touches a bit on what your
5 concern was, Madam Chair, a moment ago but that
6 it is very difficult for the Administration to
7 police a weekly obligation of course.
8 THE CHAIR: Yes.
9 MR. VAN NIEJENHUIS: And to ensure that
10 letters get here. And likewise difficult for
11 Mr. Forward to ensure, if there is some sort of
12 a weekly reporting, that that occurs if it is
13 somewhat out of his control being in Brentwood's
14 hands.
15 THE CHAIR: I'm not a big fan of the
16 weekly report or the weekly drug test; those
17 kind of things which create a lot of paper for
18 the Administration and a difficulty that you
19 throw your hands in the -- you know, has the
20 mail got there kind of thing, can I race
21 tonight, and it's hard on Mr. Forward because he
22 wants to make commitments to drive.
23MR. VAN NIEJENHUIS: That's right. So,
24 to the extent that there might be a condition
25 that ties it back to continuing the program, I
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - 48
1 would think it should be somewhat more broadly
2 construed and not impose an obligation either on
3 the Administration to actually make a
4 determination weekly but simply be a condition
5 whereby if it were shown that Mr. Forward had
6 simply not complied with the condition to
7 continue the program on those terms, that there
8 would be a suspension that would be subject to a
9 determination having to be made that he had not
10 continued with it.
11 THE CHAIR: Okay. Anything further?
12 If not, then we'll withdraw to come to a
13 decision on it. Thank you very much.
14 MR. FORWARD: Thank you.
15 ---------------
16 THE CHAIR: Thank you. Please be
17 seated.
18 We've had an opportunity to review the
19 materials that are before us and we've come --
20 the Panel has come to a conclusion and I want to
21 say first at the outset how much we appreciate
22 Chaplain Riggs coming here and speaking on your
23 behalf, Mr. Forward, and we want to thank you,
24Mr. Forward, for being so frank with us in terms
25 of your evidence.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - 49
1 We regard the breaches of the rules
2 with respect to alcohol use and drug violations
3 as very serious violations of the Rules of
4 Racing. What we have determined is that -- and
5 the date we're using is June 16, 2005 which was
6 the original suspension date. Okay?
7 We determined that we'll suspend your
8 licence for 5 months June 16, 2005 but we will
9 stay 110 calendar days of that penalty. It's,
10 sort of, 4 and a half months of it is stayed.
11 We require that to have your licence
12 reinstated you must provide proof that you have
13 successfully completed the residency program at
14 Brentwood and that you are progressing
15 satisfactorily in any further program
16 recommended by that institution and that proof
17 should be provided by letter addressed to Mr.
18 Stone; the Director of Racing here at the Head
19 Office.
20 Following reinstatement, you will be
21 on a one year probationary period. When your
22 licence is reinstated, and during the period of
23 that probation, you will present yourself for
24 testing at the ORC drug testing units each time
25 it's at the track where you're working for
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - 50
1 testing, you'll abstain from the use of all
2 controlled substances, other than prescription
3 in accordance with the prescription, and provide
4 a written undertaking, directed to Mr. Stone in
5 wording satisfactory to him, that you will do
6 so.
7 Now, if you're in breach of the drug
8 or alcohol rules, which are 6.31., 6.32, 6.33 or
9 6.38., during the period of that probation, then
10 the remaining 110 calendar days of the
11 suspension will immediately be served together
12 with any penalty that might be imposed as a
13 result of the further violation. I think that
14 is sufficient to give the Administration the
15 basis on which to do a ruling. All right?
16 MR. FORWARD: Okay.
17 THE CHAIR: Shall we go through the
18 dates so that Mr. Forward understands it?
19 MR. VAN NIEJENHUIS: I think that would
20 be good.
21 THE CHAIR: It's a 5 month suspension
22 but we're staying the last 110 days of it. So,
23 you were suspended June 16, so June to July,
24 July to August, August to September, September
25 to October, October to November; November 16
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - 51
1 count back 110 days should take you sometime in
2 sort of early August; early to mid August,
3 because we think it's important, since you've
4 recently moved to a new house, you've been away
5 from your family. You have to get used to
6 getting into the new program and you still have
7 to complete the program, and the letter from
8 Brentwood didn't give us precisely a day, so we
9 wanted you to have time to complete that
10 residential program, get established in a new
11 program and have time with your family before
12 you come back into the other pull of driving.
13 So, our calculation puts it sometime
14 in the first half of August that you would be
15 back with your licence. So long as you can get
16 that letter from Brentwood that you've finished
17 the residential program and you've started on
18 whatever they recommended for a further
19 program. Okay?
20 There is a one year period; let's say
21 you get your licence back August 10, there is
22 then a one year period of probation and during
23 that probationary period you must be tested by
24 the drug unit but also, as a driver, you know
25 you have to be tested by the Breathalyzer.
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - 52
1 Alcohol is, according to you, your
2 real problem and, in our experience, if alcohol
3 is your problem you have to stay away from it
4 entirely. So if you blow on the Breathalyzer,
5 and you're over, that means you're still into
6 alcohol which you would be fooling yourself to
7 think that you're succeeding if you're still
8 into alcohol.
9 So that's why we said it's not just
10 the drug offence, because you've told us you're
11 not a drug taker. What happens is you get into
12 the alcohol and then you get into the drugs. So
13 we put in the Breathalyzer rule as an additional
14 rule that if you violate then you have to serve
15 the 110 days. All right? Is that clear
16 enough?
17 MR. FORWARD: It's clear.
18 THE CHAIR: Now, Mr. Fines will be able
19 to take you through those terms and if you have
20 questions about what you're obligated to do then
21 Mr. Fines or one the assistant supervisors or
22 the judges can respond to those questions. All
23 right?
24 MR. FORWARD: Okay. Thank you.
25
TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - 53
1 THE CHAIR: Thank you very much.
2
3 -- Upon concluding at 4:10 p.m.
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TORONTO COURT REPORTERS - TORONTO - ONTARIO
Reasons - 54
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5 I hereby certify the foregoing to be
6 a true and accurate transcript as taken
7 by me to the best of my skill and
8 ability.
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11 _____________________________
12 Christine McAlister, B.A.,C.S.R.
13 Toronto Court Reporters
14 1410 - 65 Queen Street West, Box 69
15 Toronto, Ontario M5H 2M5
16 (416) 364-2065