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

AND IN THE MATTER OF STANDARDBRED DRIVER RAY McLEAN

Standardbred driver Ray McLean appeared before the Commission pursuant to the operation of Rule 6.38.06 of the Rules of Standardbred Racing as a result of Ruling SB 31398 finding that he had refused to produce a sample when properly requested to do so, whereby he was indefinitely suspended pending his appearance before the Commission, effective May 2, 2005.

The Vice-Chair of the Commission, Larry Todd, convened on May 19, 2005. Brendan Van Niejenhuis represented the Administration, and Ray McLean appeared on his own behalf.

On hearing the evidence of John McEachern and Colin Coleiro and of Ray McLean, on reading the exhibits filed and on hearing the submissions of the parties, and on the basis that Ray McLean did not substantially contest the finding of liability, the Commission imposed a penalty of twenty days suspension, including credit for time served of eighteen days as of the date of the hearing, resulting in a further two-day suspension, for a violation of Rule 6.38.06 of the Rules of Standardbred Racing.

The Commission's reasons for decision form part of the transcript of the hearing and are attached to this Ruling.

DATED this 17^th^ day of June, 2005.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

ONTARIO RACING COMMISSION

PRELIMINARY HEARING

IN THE MATTER OF STANDARDBRED LICENSEE

RAY MCLEAN

REASONS FOR DECISION

Hearing conducted in the Hearing Room of the Ontario Racing Commission, 7th Floor, 20 Dundas Street West, Toronto, Ontario, on Thursday the 19th day of May, 2005.

DISCIPLINE COMMITTEE PANEL:

L. Todd Vice Chair

APPEARANCES:

B. Van Niejenhuis Counsel for the Administration

Appellant For Himself

Also Present:

B. Fines

INDEX OF PROCEEDINGS

--- Upon commencing May 19th, 2005, 9:10 a. m.

REASONS FOR DECISION:

THE CHAIR: The following are my reasons for decision.

Mr. McLean appears here this morning as a consequence of a urine test taken as one of the many required of him in the last several years since an order of Mr. Stone, as the Director of Racing, dated April 15, 2003.

I've heard evidence that -- Mr. McEachern has various names at the track, but as the chief human urine tester, that a sample was taken in April and we have the results of same from the lab at tab number 2 of Exhibit 1.

Mr. Van Niejenhuis is correct when he says that Mr. McLean, other than trying to provide an explain regarding water and lack of food, has not substantially challenged the finding of liability. I do, in some of these cases, have some concern when the Administration, as Mr. Van Niejenhuis has acknowledged, does bear the onus of proving their case. I have concerns in two respects. Number one: there isn't anything that I'm aware of in the rules, nor have I been pointed to, that make the maximum certificate, i.e. at tab 2, Exhibit 1, prima facie proof of the contents thereof. I did hear in part from both of the investigator witnesses as to what the certificate means, but that again is second, if not third-hand evidence albeit admissible evidence.

The other concern I do have is that we're taking another bit of a quantum leap when we go from concluding that -- and the evidence was that it was policy that an improper sample equates a failure to provide a sample. Again, I think that's taking a bit of a leap. It has been the practice here for a number of years, and at some point those issues that I've addressed could be directly dealt with in either of the rules and not just exist as by inference or by policy. On the evidence before me, I do have a concern that, albeit I'm not particularly happy with some of the evidence, but I do have a concern that the creatinine levels, here, leave something to be desired.

Mr. McLean has served an 18 day suspension. The Administration seeks 30 days in total, giving him credit for the 18 days. I specifically do take cognizance in considering the submissions on penalty of the relatively rigorous conditions that still appear extant on Mr. McLean's licence, that being the last page of tab 7, Exhibit 1, and those conditions appear to involve Mr. McLean in some rigorous scrutiny by the Administration with regard to drug testing.

In all of those circumstances and for the reasons that I've given, I would conclude that a suspension of 20 days would be appropriate with credit for the 18 days already served and I would only hope, Mr. McLean, that if water consumption or anything else you proffered to me, here today, has a basis for the difficulty that we're dealing with, here today, that you talk to your physician so it doesn't happen again.

Mr. Stone has a lot of powers under the licensing and provisions of the Director of Racing and I'm sure you consider the conditions of the April 12th order a pain in the posterior and that they were probably intended to be a pain in the posterior. They could get worse or there could be a notice of proposed order that you have too many problems, so be careful. That's all I have to say. Thank you.

--- Whereupon proceedings adjourned at 10:17 a. m.

I HEREBY CERTIFY THE FOREGOING

to be a true and accurate transcription

of a cassette tape recording

to the best of my skill and ability.

MAUREEN BYNOE, Stenomask Reporter

B. A., Commissioner of Oaths