IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
STANDARDBRED OWNER/TRAINER MALCOLM LYNN
Standardbred owner/trainer Malcolm Lynn appealed from SB 385325 dated July 12, 2006, in which Mr. Lynn was found to have violated Rule 22.38 of the Rules of Standardbred Racing, fined $5,000 and suspended for 1 year as a result of a positive test for elevated TCO2 in a blood sample taken prior to racing of the horse CYBERMAN.
By Ruling Number COM SB 002/2007, a Commission Panel consisting of Chair Lynda Tanaka and Commissioners Jane Garthson and Brenda Walker dismissed Mr. Lynn’s appeal. A teleconference hearing was convened on February 6, 2006 to deal with the penalty.
Aaron Dantowitz appeared on behalf of the Administration. Josee Paquette appeared on behalf of Mr. Lynn. On reviewing the exhibit filed and on hearing the submissions of counsel, the Commission varied the Judges’ ruling by imposing a fine of $7,500 and a two-year suspension to commence on February 12, 2007 and continue until February 12, 2009.
The Commission gave written reasons for the decision, a copy of which is attached to this ruling.
DATED at Toronto this 12th day of February 2007.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
Penalty
A teleconference hearing for evidence and submissions on the penalty to be imposed on Malcolm Lynn convened on February 6, 2007. In oral reasons delivered January 26, 2007, the Commission had dismissed Mr. Lynn’s appeal from Judges’ Ruling SB 35325 issued at Sudbury Downs July 12, 2006, imposing a fine of $5,000 and a one year suspension. The Ruling was the result of a finding of violation of Rules 22.38 and 26.02, because of a TCO2 positive test of blood taken pre-race from the horse Cyberman which raced on July 12, 2006 in the 12th race and placed first.
At the conclusion of the hearing on January 26 the Commission gave directions as to the filing of evidence and submissions with respect to penalty. The Administration provided additional documents which were marked Exhibit 6 in these proceedings. No additional evidence was filed on behalf of Mr. Lynn.
At the teleconference Ms. Josee Paquette appeared on behalf of Mr. Lynn, who was present with her at the teleconference.
The Administration requested a penalty consisting of a two-year suspension and a fine of $10,000. Exhibit 6 consisted of the Commission Guidelines for Penalties for Equine Drug and TCO2 offences effective March 30, 2001, as well as a Standardbred Canada printout printed January 26, 2007 of previous violations by Mr. Lynn, and rulings issued by the Saskatchewan Racing Commission and the Quebec Regie des Alcool, des courses et des jeux, dated November 20, 2006. The Saskatchewan case dates back to August 30, 1991 but the Quebec decision related to a positive test from January 2006, some six months prior to the positive test at Sudbury Downs. In addition, there was a positive test on February 24, 2004 at Georgian Downs for which Mr. Lynn was fined $2,500 and suspended for almost four months.
The Administration submitted that in view of the fact that this was Mr. Lynn’s third positive test in three years, the penalty should be at the high end of the range provided under the Guidelines. Further there was an additional positive test in February 2003. The Regie imposed a penalty of 75 days for the violation in January 2006 by its decision released last November, but the reasons make it clear that the Regie was of the view that Mr. Lynn had no previous rule violations for medication offences. That is not the record as disclosed by the Standardbred Canada printout.
Mr. Lynn’s counsel submitted that a fine of $5,000 was appropriate and not a lengthy suspension. Mr. Lynn trained five horses last year and had a very limited income. Unfortunately Mr. Lynn’s counsel chose not to provide an evidentiary basis for this statement.
The judges at Sudbury Downs had imposed a one-year suspension and a $5,000 fine. They were unaware of the medication rule violation in Quebec that occurred in January since the Regie did not issue its order until November 2006. The judges thought the violation at Sudbury Downs was a second violation in three years, not the third.
We accept that Mr. Lynn’s stable is not large, based on the submissions of his counsel. He has, however, a significant record of medication violations. Therefore it is appropriate in our view to impose a suspension of 2 years, the top of the range for Class III drugs for a third offence in three years.
In addition, given the history of Mr. Lynn’s repeated violations of the rules with respect to medication in horses, a significant fine must be imposed to discourage his continuation of this conduct. We believe, however, that given the size of his stable, it is appropriate to adjust the fine to less than the $10,000 requested by the Administration. The $5,000 fine suggested by his counsel is too low and will not have the effect of discouraging Mr. Lynn. He was fined $2,500 for his February 2004 violation in Ontario. He was given no fine in Quebec last fall when he pleaded guilty to the medication violation. The Regie thought it was his first office. In 1991 in Saskatchewan he was fined $1,500 total on three medication violations and suspended 120 days. We therefore impose a fine of $7,500, to be paid in total prior to his returning to racing.
Mr. Lynn’s suspension will commence at the conclusion of the suspension imposed by the ruling of the Regie, that is February 12, 2007 and continue until February 12, 2009.
If any clarification is required, the panel may be spoken to.
DATED this 9th day of February 2007.
Lynda Tanaka