IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
THOROUGHBRED LICENSEE RODERICK DACOSTA
Thoroughbred licensee Roderick DaCosta was required to appear before the Ontario Racing Commission following a second positive test within twenty-four months, pursuant to Rule 15.26.03 of the Rules of Thoroughbred Racing. At the hearing, the Administration further alleged that Mr. DaCosta had attempted to provide an adulterated sample.
On October 16, 2006, a Panel of the Commission consisting of Chair Lynda Tanaka, and Commissioners George Kelly and Jane Garthson, convened the hearing. Brendan Van Niejenhuis acted as counsel for the Administration, and Roderick DaCosta represented himself.
On reading Exhibit 1, filed, and on hearing the evidence of Investigator Jeremy Locke, and on hearing the submissions of counsel for the Administration and of Mr. DaCosta, the Panel made a finding that Mr. DaCosta had violated Rules 15.26.03 and 15.26.01(e) and ordered as follows:
Mr. DaCosta is fully suspended for one year, effective August 25, 2006, subject to the remaining terms of this ruling;
There shall be no stay of the suspension for the first seven months thereof, running from August 25, 2006, until March 25, 2007;
There shall be a stay of the suspension such that Mr. DaCosta shall be permitted to be an exercise rider for one month beginning March 26, 2007;
Mr. DaCosta shall, between March 26, 2007, and April 25, 2007, provide a negative sample within the meaning of the Rules of Thoroughbred Racing, by arrangement with the Supervisor of Thoroughbred Racing;
Provided that Mr. DaCosta provides such negative sample, there shall be a stay of the remaining period of suspension, from April 26, 2007 until its expiry on August 25, 2007;
Mr. DaCosta shall be subject to a period of probation for twelve months beginning August 26, 2007 and ending August 25, 2008;
During Mr. DaCosta's period of suspension that is stayed, and during his period of probation, he shall present himself to the drug testing unit whenever it is present at a track in Ontario where he is programmed to ride;
Mr. DaCosta is fined the sum of $1,500; and
Of that fine, Mr. DaCosta shall pay the sum of $750 on or before December 31, 2006; and the remainder of $750 on or before April 30, 2007.
DATED at Toronto this 19^th^ day of October 2006.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
ONTARIO RACING COMMISSION THOROUGHBRED HEARING
IN THE MATTER OF RODERICK DACOSTA:
These are the oral reasons in the above mentioned matter held before The Ontario Racing Commission, Re: RODERICK DACOSTA, taken before Toronto Court Reporters, Suite
1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Mississauga, Ontario, on the 16th day October, 2006.
PANEL MEMBERS:
Ms. Lynda Tanaka, Chairman
Ms. G. Garthson, Commission member
G. Kelly, Commission membery
Appearances Brendan Van Niejenhuis for the Ontario Racing Commission Administration
Roderick DaCosta, unrepresented
TORONTO COURT REPORTERS - TORONTO, ONTARIO
Hearing continued ...
MR. HALL: All rise please.
MR. VAN NIEJENHUIS: Mr. Da Costa
has been in and out but he seems to be out.
MR. HALL: Does he smoke?
MR. VAN NIEJENHUIS: He testified
that he did not.
MADAME CHAIR: Thank you. We are ready to issue our ruling and it the unanimous decision of the panel. We are dealing with the hearing which is invoked pursuant to Commission rules 15.26.03 and 15.26.04 of the Rules of Thoroughbred Racing.
Mr. Da Costa was suspended on August 25, 2006 for testing positive for a prohibited substance, specifically THC. In the intervening period Mr. Da Costa has continued to be suspended but has made numerous attempts to produce a negative sample, including an attempt on September 13, 2006 and we will come back to that situation later.
Actually, I will deal with it right now. On September 13th, 2006 Mr. Da Costa attended at the Maxxam laboratory and provided a sample which the investigator described as being unsatisfactory. He testified that when he took the urine cup which had the sample in it from Mr. Da Costa it felt hot to the touch and he observed the thermometer on the sample container showed a temperature at least as high as 102 degrees or higher. He informed Mr. Da Costa that it was an unsatisfactory sample and that he would be required to give a further sample. Ten to fifteen minutes later after Mr. Da Costa had consumed some water he provided a second sample. Of those two samples the first sample, that is, the excessively
TORONTO COURT REPORTERS - TORONTO, ONTARIO
Roderick DaCosta October 16, 2006
hot sample, tested negative and the second sample which was at normal temperature tested positive. Mr. Da Costa then re-attended and provided a third sample in October and it is following that negative sample in October 2006 that we have this hearing.
Mr. Da Costa has had a previous positive sample in September 2004; again, for THC and therefore two positive samples within a 24 month period, leaving aside the events of September 2006. Now Mr. Da Costa testified before us with respect to his medical history which has included a very painful period coping with kidney stones going back some years and in 2004 or prior he commenced taking a herbal remedy which had been prepared for him by a person he described as a bush doctor in Jamaica. He brought the compound into the country. It consists of a boiling of this compound and drinking the substance. He says it makes him feel better, keeps his weight down but as of 2004 his first positive test he was aware that or appears to have been aware that this substance was in fact the cause of a positive test for THC for which he was suspended for fifteen days and fined $500.00. He testified that he stopped using the substance for a period of time but his kidney stones came back and in face of surgery and what he described as care which did not seem to meet his needs and included partial removal of the thyroid he reverted again to using the medication that he obtained in Jamaica from his bush doctor.
There is on the basis of the evidence here a clear violation of the rules and while we have a great deal of sympathy for someone who suffers from kidney stones and similar ailments and concerns about adequacy of treatment there is a clear violation of the rules and it
TORONTO COURT REPORTERS - TORONTO, ONTARIO
Roderick DaCosta October 16, 2006
calls for a lengthy suspension. Mr. Da Costa has been suspended in fact since August 25, 2006. The Administration has asked for a one year suspension and has suggested a six month stay of suspension. They have also requested a twelve month probationary period and certain conditions on the probationary period.
With respect to the September sample which was too hot and tested negative followed by a second sample at regular temperature with a positive outcome they have asked for a finding that Mr. Da Costa attempted to provide an adulterated sample or an inadequate sample and have asked for a $750.00 fine and a further two month suspension on top of what else is given.
We have carefully reviewed the facts and the background on this case and Mr. Da Costa's evidence. In our view he has been aware for two years that the substance that the bush doctor gave him would bring him into violation of the rules if he were tested and he has not taken any steps to address that concern satisfactorily. This is a regulated industry and the rules are clear that you cannot take or test positive for marijuana or its derivatives or metabolites and participate in horse racing. So we have decided this should be the appropriate penalty. We are imposing a one year full suspension but staying it in part. The suspension will commence August 25, 2006. Therefore Mr. Da Costa has already served almost two months of that. There will be a seven month full suspension which will bring us to March 25, 2007. At that point the full suspension will be lifted and he will be able to participate as an exercise rider and therefore not as a jockey in races on which there is wagering
TORONTO COURT REPORTERS - TORONTO, ONTARIO
Roderick DaCosta October 16, 2006
wagering but he would be able to exercise or gallop horses as an exercise rider. At the conclusion of that month he must provide a negative sample to the Commission to establish that in returning as a jockey he is not continuing to consume marijuana.
The four months remaining on the penalty is stayed unless he tests negative – tests positive subsequently. He must present himself whenever the testing unit is at the track and he is scheduled to race. In addition, he will serve a one year probation period. If he tests positive then he will serve the additional four months that have been stayed in addition to any other penalty that has been imposed.
We have been asked to impose a term of rehabilitation. We don't think this is a situation of someone taking a substance because he addicted to it. We think he is taking it because it is the only thing he has found in his search to date to alleviate a medical condition and we don't think the rehabilitation programs are designed to provide a full medical analysis. He needs to look after that himself so that he comes back to racing without the potential for testing positive. The assurance that he must do that is the fact that he must have a negative sample before he resumes his work as a jockey. Administration has asked for half of the penalty imposed in Austin and then a two month suspension we think that the suspension period we have given is enough to send a message to Mr. Da Costa that he must find a different way to deal with his issues than continuing to take marijuana but an important message must be sent and therefore rather than an additional suspension we are going to impose a fine of $1500.00 but we are going to break the payment timeframe so that $750.00 is paid.
TORONTO COURT REPORTERS - TORONTO, ONTARIO
Roderick DaCosta October 16, 2006
Are there any questions about the terms? If so, those can be dealt with when you draft up the ruling Mr. Van Niejenhuis. We can deal with it on a conference call kind of basis but I think we have been fairly clear about our timing and dates and the payment terms and conditions.
MR. VAN NIEJENHUIS: I think so. I have no questions.
MADAME CHAIR: All right. Do you understand clearly, sir, what we have done?
MR. DA COSTA: Yes. Just one question. When I will be able to race, race riding?
MADAME CHAIR: You will not be able to race ride until April 25, 2007.
MR. DA COSTA: April 25, 2007?
MADAME CHAIR: 2007.
MR. DA COSTA: Next year, okay.
MADAME CHAIR: And our understanding is that Jamaica is a member of the Licensing Commissioners International.
MR. DA COSTA: I can't ride there.
MADAME CHAIR: And will respect our ruling.
MR. DA COSTA: I can't ride down there. Once I am suspended anywhere in the world I can't ride down there. So I am not able to gallop horses on the track now? March?
MADAME CHAIR: Not until next spring.
TORONTO COURT REPORTERS - TORONTO, ONTARIO
Roderick DaCosta October 16, 2006
MR. DA COSTA: March and then I can race ride in April
MADAME CHAIR: In April assuming you produce a negative urine sample.
MR. DA COSTA: Okay, that's okay. Thanks a lot.
MADAME CHAIR: Thank you very much.
MR. DA COSTA: I appreciate it.
CERTIFIED CORRECT: RAYMOND P.MACDONALD, B.A., CVR COMMISSIONER OF OATHS
TORONTO COURT REPORTERS - TORONTO, ONTARIO