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

AND IN THE MATTER OF

STANDARDBRED OWNER/DRIVER/TRAINER KEVIN AUSTIN

Standardbred Owner/Driver/Trainer Kevin Austin appealed Judges' ruling SB 28196, issued against him on December 14, 2004, wherein he was fined the sum of $1,500.00 and suspended for 120 days and placed on probation for a period of two years for violation of Rules 6.20(b) and 6.38(f) of the Rules of Standardbred Racing, for providing urine samples that were improper and unacceptable for testing at Kawartha Downs Raceway on November 2, 2004.

A Panel of the Commission consisting of Chair Lynda Tanaka and Commissioners Bernard Brennan, DVM and George Kelly convened on May 3 and 26, 2005. Luisa Ritacca represented the Administration and Douglas Gosbee represented Kevin Austin.

On hearing the evidence of John McEachern, Associate Judge William Maertens, Kristin Ferris and Kevin Austin, and on reviewing the exhibits and on hearing submissions on behalf of the Administration and Kevin Austin, the Panel found that Mr. Austin had failed to provide a proper urine sample in violation of Rule 6.38(b) of the Rules of Standardbred Racing and dismissed the appeal. The Panel dismissed the appeal with respect to penalty and affirmed the penalty imposed in Standardbred Ruling SB 28196, as follows:

1. Mr. Austin is fined the sum of $1,500.00

2. Mr. Austin is fully suspended for a period of 120 days.

3. Mr. Austin shall be on probation for a period of two years commencing the date of this Ruling, during which time:

a.Mr. Austin shall present himself to the drug unit any time he is at a track in Ontario where the drug unit is operating;

b.Providing improper and/or unacceptable urine samples (specimens) shall result in an immediate full suspension for the remainder of the probation period, in addition to any other penalties as may be assessed at the time.

DATED this 6^th day of July, 2005.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

This appeal is brought by Standardbred owner/driver/trainer Kevin Austin from the Ruling of the Standardbred Judges at Kawartha Downs number SB 28196 dated December 14, 2004. The Judges found that Mr. Austin was in violation of Rules 6.38(f) and 6.20(b) for providing unacceptable and improper urine samples for testing at Kawartha Downs on November 2, 2004. The Judges imposed a penalty of a 120-day full suspension, a fine of $1500 and a 2-year probation period. The conditions imposed on the probation were that:

1. Mr. Austin shall present himself to the drug unit anytime Mr. Austin is at a track in Ontario where the drug unit is operating and

2. providing improper and or unacceptable urine samples (specimens) shall result in an immediate and full suspension for the remainder of the probation period, in addition to any other penalties assessed at the time.

The Rules violated by Mr. Austin in the Judges' view read as follows:

Rule 6.38(f)

Any licensee who refuses to provide a sample when properly requested to provide same shall forthwith have his or her licence suspended by the Director of racing or his or her authorized representative and shall appear before the Commission. The licensee shall not be reinstated until such time as the licensee who refused the test provides a negative sample at his or her own expense.

Rule 6.20

A participant shall be guilty of a violation of the rules:

(b) for any misconduct prejudicial to the best interests of racing.

The Commission heard evidence from Investigator John McEachern, Associate Judge William Maertens and Ms. Kristen Ferris of Maxxam Laboratories, called by the Administration and from Mr. Austin.

Mr. McEachern testified that on November 2 he attended at Kawartha Downs to undertake drug testing under the Commission program. He had a list of those licensees who are to be tested and he was satisfied that each had been advised of the need to present themselves for testing. The documents filed in Exhibit 2 include the records of the contact of the individuals, including Mr. Austin, who were scheduled to be tested and of the time at which they were advised that they were to be tested, as well as the time of testing.

Mr. Austin was told at 3:18 p.m. by Mr. McEachern, at 3:24 p.m. at the Paddock gate and at 3:26 p.m. by the paddock judge to present himself for testing. He came to see Mr. McEachern after the 6^th race. He provided a sample but the temperature strip on the sample jar indicated that the sample temperature registered less than 90 degrees F and also was less than the required 30 mil. Mr. McEarchern told Mr. Austin he had to come back later and give another sample. Mr. Austin came back after the 9^th race and he was unable to produce a sample at that time. Mr. Austin told Mr. McEachern that he would be back later. Later in the evening Mr. Austin went with Mr. McEachern to buy some water. Mr. Austin drank about a quarter of the bottle of water. Another effort by Mr. Austin was made to produce a satisfactory urine sample. Again this sample did not register on the temperature strip at the minimum of 90 degrees F. The strip showed a temperature of only 88 degrees F. The sample was sealed and the chain of custody form was filled out as required. The sample has been stored since and no testing has been done of it.

Mr. McEachern testified that none of the other samples from other licensees indicated a temperature of urine outside the temperature range. All the other licensees had provided samples earlier in the afternoon, compared to the time of Mr. Austin's efforts. Mr. Austin indicated that he was busy with drives during the evening and that prevented his giving his sample earlier.

Associate Judge Maertens gave evidence with respect to the Judges' proceedings. Mr. Austin had an earlier positive test in February 2004. If his urine had tested positive, his case would have been brought before the Commission under Rule 6.38 (e)(iii). In that event, a hearing would have been required before the Commission and, unless there was an effective defence to the positive test, a penalty would have been imposed. Judge Maertens also testified as to the basis for the penalty that was assigned.

Kristen Ferris is designated as Responsible Person by the Maxxam Analytics for the Human Drug Testing Department. Her Curriculum Vitae was marked as Exhibit 5. She was accepted as an expert qualified to give evidence in the interpretation and analysis of human urine samples. A letter she wrote to counsel for the Administration dated March 11, 2005 was marked as Exhibit 3.

Ms. Ferris testified that on the jars that are provided for the Commission human drug testing program there is a temperature strip that registers the temperature of the urine. The reading must be taken within four minutes of being filled and the strip turns green to indicate the temperature of the urine in accordance with the markings on the jar. She testified that since the urine is manufactured in the body, it is expected to be at or close to body temperature when the sample is taken. The range of 90 degrees to 100 degrees F, which is noted on the strip on the jar, is in accordance with the standard operating procedure for human drug testing both in Canada and the United States. Her evidence was that the rationale for the range is to prevent an adulterated or substituted sample. She had seen samples with a temperature below the range but knew of no reason for the temperature being lower than the range, other than that this was an adulterated sample or substituted sample. She also testified that there is a quality assurance program in place to ensure that the sample jars and temperature strips are properly prepared.

Mr. Austin who is licensed as an owner/trainer/driver testified as to his previous involvement in horse racing and his current responsibilities. He acknowledged that there was a three-hour gap between the time he was told that he would be tested and when he first went to Mr. McEachern for the test. He said he knew that Mr. McEachern followed him after the second test. He said he had no explanation for the temperature strips reading cold. He said that the drivers' room is usually cold. He said that Mr. McEachern was wearing a winter jacket, though he himself was wearing only his driver's suit over his underwear. He said he knew that he would have to submit to a test if the drug unit was at the track as he was on probation for an earlier drug offence. He denied altering the urine.

Mr. Austin was not asked and did not give any explanation for the low temperature reading. The closest he came was to refer to the drivers' room as usually being cold, though there is no dispute that the room is heated, as is the washroom, and none of the other drivers seem to have been affected by the cold in terms of the temperature of the urine they provided. If the coldness of the drivers' room were in fact an issue, one would expect that other drivers would have the same problems in submitting to the test, either on this afternoon or on other afternoons or evenings. Such is not the case on the evidence we have before us.

The Administration's position is that Mr. Austin failed on three occasions to provide a sample of 30 mil of urine at a temperature in the range required under the Maxxam Laboratories standards. The position is that, having failed to provide a proper sample, he is in breach of Rule 6.38(f) and 6.20(b).

The position of Mr. Austin is that:

1. it is admitted that it was next to impossible to suggest that 2 readings in a row were not in fact below the temperature guideline. It is admitted that on the evidence this Commission can make the finding that the urine temperature was lower than 90 degrees, i.e. was 88 degrees.

2. the problem with the Administration case is that while the temperature suggests an altered sample, a "suggestion" is insufficient to support a finding of a rule violation.

3 there is no expert evidence that 88 degrees was not a proper sample, that there could not have been an innocent explanation such as hypothermia.

4. there is no onus on Mr. Austin to explain why his urine is colder than most.

5. the Rules Committee did not provide a specific level as in the "over 80" breathalyser test that is used for alcohol, and could have.

6. the investigator was deficient in that he did not use the direct observation method to ensure the licensee did not tamper with the sample.

Based on the evidence before us, it is standard practice in both Canada and the United States that urine provided by humans for the purposes of a drug testing program should register a temperature between 90 degrees and 100 degrees F measured within 4 minutes of exiting the body in order to constitute a proper sample for the purposes of being tested. Ms. Ferris' evidence in Exhibit 3 was that if the temperature is outside the acceptable range, that temperature constitutes a reason to believe that the individual may have altered or substituted the specimen. If the temperature is below that range, then this Commission is entitled to draw the conclusion that the sample has been altered in some way and is not a proper sample. That standard practice is well recognized and uncontroverted by any of the evidence.

We find that the evidence before us is not merely a "suggestion" that there has been tampering or altering of the sample but rather provides an appropriate evidentiary basis for a finding that a proper sample was not provided.

The Administration does not have to prove that there is no innocent explanation for such a temperature reading. If there are persons whose urine is usually, without alteration, at such a low temperature, then the situation must be quite specific to them. Only the licensee would know if he or she is such a person. Further, since urine is the product of what is consumed by the individual, only the individual has control of that or the knowledge of that. To set an obligation on the Administration to prove that there is no innocent explanation for the cold temperature reading would be to set an impossible burden, whereas the licensee could easily provide the "innocent explanation". No such explanation was provided.

Mr. Austin's counsel argued that since the Maxxam Analytics procedures specified that in the event that a sample registered too low as to the temperature, the tester should conduct a direct observation of the person giving another sample. The argument is that Mr. McEachern did not do that and therefore the appeal should be granted.

Mr. McEachern testified that on two of the three occasions when Mr. Austin tried to give a proper sample (specifically the first and the third), Mr. Austin had his back turned towards Mr. McEachern, ostensibly for privacy, and he could not undertake a direct observation procedure.

To give effect to the defence would mean that direct observation is required to confirm that a proper sample has been given in each case. In our view the obligation is on the licensee, based on the wording of the Rule, to provide a proper sample. Direct observation may be appropriate in some circumstances but we reject the defence that the failure to conduct direct observation is a ground for relieving Mr. Austin of his obligations under the Rules of Racing to provide a proper sample.

With respect to the argument that the Rule is deficient because it does not specify the temperature reading, as the breathalyser reading of "over 80" is specified, this argument confuses two measurements. The "over 80" reading is a measure used to identify the amount of alcohol in the human system. In the case of a human urine sample, the temperature reading provides assurance that the specimen is unaltered urine direct from the person's body. It is not a measurement of the amount of any substance that has been consumed. The measurement comparable to the breathalyser reading is in fact provided in the 50 ng minimum for a cannabis positive test in the Rule. We find that the Rule is not deficient for the lack of the temperature reading.

We find that Mr. Austin did not provide a proper urine sample when properly requested to do so as required by Rule 6.38(b) and that the appeal is denied.

With respect to penalty, we agree with Judge Maerten's testimony that this is a serious violation of the Rules related to licensee conduct, and that the drug testing program is an important component of the regulatory system, instilling public confidence in that system and, as well, addressing the significant safety issues with respect to horse racing participants. The suspension of 120 days is considerably less than the six months that was imposed in another instance of failure to provide a proper sample, referred to as the Gagnon case, from 1999. Mr. Austin's Standardbred Canada record with respect to Rule violations was filed with us as well.

We therefore dismiss the appeal as to penalty and impose the same penalty with the same conditions that were ordered by the Standardbred Judges in Ruling SB28196.

DATED this 6^th day of July, 2005.

Lynda Tanaka

Chair