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

AND IN THE MATTER OF THE APPEAL OF

STANDARDBRED OWNER/DRIVER/TRAINER RICHARD BAKER

Standardbred owner/driver/trainer, Richard Baker, appealed Judges' Ruling SB 35150 dated May 30, 2006, wherein he was fully suspended for 60 days and fined $1,000 pursuant to Rules 6.20(a) and (b) of the Rules of Standardbred Racing for having sodium edecrin and furosemide pills in his possession on October 18, 2005, at Georgian Downs Racetrack, for which he was unable to produce a prescription.

The ORC Panel hearing the matter consisted of Chair Lynda Tanaka and Commissioners Bernard Brennan, DVM and Jane Garthson. The Panel convened on September 27 and October 11, 2006. Aaron Dantowitz appeared for the Administration and Gerald Sternberg appeared for Mr. Baker.

On hearing the evidence of Charles Beirnes, Dr. Joel Mayer and Dr. Michael Weber, on reviewing the Exhibits filed, and on hearing the submissions of counsel for the Administration and for Mr. Baker, the Panel dismissed Mr. Baker's appeal.

The Commission's reasons for decision are attached to this ruling.

DATED this 13th day of December 2006.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Standardbred Owner/Driver/Trainer Richard Baker (“the Appellant”) appealed to this Commission from Ruling SB 35150 issued on May 30, 2006 by the Standardbred Judges at Georgian Downs in which Mr. Baker was given a 60 day full suspension and a $1,000 fine. The Ruling arose as a result of a search at Georgian Downs on October 18, 2005 and the reason stated in the Ruling for the finding of a violation of Rules 6.20 (a) and (b) is the allegation that Mr. Baker had in his possession Sodium Edecrin and Furosemide pills and he was unable to produce a prescription for these drugs.

The Commission conducted a hearing de novo. The Administration called four witnesses: ORC Investigator Charles Beirnes, Dr. Joel Mayer, Dr. Michael Weber, Mr. Troy Haripersaud, and Mr. Stephen Choo. The Appellant called no witnesses.

Rule 6.20 (a) and (b) reads as follows:

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

a) for any misconduct which is injurious to racing although not specified in these rules;

b) for any misconduct prejudicial to the best interests of racing…”

The Commission is required, under its statute, to exercise its powers, including its decisions on appeals from the judges’ rulings, in the public interest and taking into account the principles of honesty and integrity, and social responsibility. The following is the unanimous decision of the Commission.

The burden of proof on the Administration is the civil burden of proof on the balance of probabilities.

The allegations against Mr. Baker were made in testimony from witnesses called by the Administration. In arriving at our decision, we have carefully reviewed all the evidence from witnesses and documents in its totality.

A request was made by counsel for the Appellant for an order excluding witnesses. The order was granted and the witnesses duly cautioned as to the importance of their not discussing their evidence with any person who might be giving evidence in these proceedings or with any party.

The Administration presented a document brief with 17 tabs. Counsel for the appellant objected to the admission of the documents at Tabs 8, 9 and 10 which related to the drugs that were alleged to be found in Mr. Bakers’ possession and Tab 16 which included documents dealing with Mr. Baker’s past Rule violations.

Tabs 8, 9 and 10 were admitted on the undertaking by counsel for the Administration to establish relevance and Tab 16 was admitted on the basis that it would not form part of the panel’s deliberations unless and until a conclusion had been reached on the Rules violation and then only as to penalty. Subsequently the relevance of the three tabs in question was established in the evidence.

ORC Investigator Charles Beirnes testified with respect to a search he undertook on October 18, 2005 at Georgian Downs racetrack. Mr. Beirnes was formerly a police officer, until he joined the Investigations Unit of the ORC in 2003. Mr. Beirnes’ task at the track that day was to conduct searches of trucks, trailers and other vehicles and the property of licensees entering the backstretch area of the track. When the Appellant came to the backstretch with his horse in the trailer, Mr. Beirnes searched his truck, trailer and a driver’s bag.

The Appellant’s horse, Armbro Token, was programmed to race in the 8th race that night, and as indicated on the program page marked as Exhibit 4 the appellant was listed as both driver and trainer. The program page also indicated that the horse would be given Lasix. The horse is an 8-year-old gelding with lifetime earnings of over $190,000. In 2005 by this date in October, the horse had only won $13,890 with one win and 2 third place finishes in 9 starts.

Mr. Beirnes testified that he found a Gravol pill bottle, containing drugs, in the driver’s bag. The Gravol pill bottle that he identified was marked as Exhibit 2. Exhibit 2 contained 23 pills in total. Mr. Beirnes seized the pill bottle and the pills and kept them in his locker to which only he has access. He removed from the locker and the pill bottle samples of each type of pill for testing. Exhibits 3B to 3F inclusive are each one pill of each type found in the pill bottle and Exhibit 3A is one half of the pill found of that one type. Exhibit 3A is the remaining half of the pill that is left after the chemists at Vita Tech took half for testing.

Mr. Beirnes testified that he took the pills to the Maxxam lab for testing. Mr. Beirnes carefully described each of the pills marked as Exhibits. In the case of Exhibit 3A it was a long narrow orange pill. Exhibit 3B was the largest of the white pills, round, disk shaped with no marks. Exhibit 3C is the second largest white disk shaped pill with a score through the middle and the letters “MSD” in an oval marked on the other side. Exhibit 3D is the smallest white pill with scoring in the centre of one side with N on one side of the scoring and 20 on the other side. The other side of the pill has no markings. Exhibit 3E is a long narrow orange pill with the marking “APO-600” on one side. Exhibit 3F is a yellow round disk shaped pill with 20 on one side and “Gravol” stamped on the other side.

Mr. Beirnes indicated that he eliminated Exhibit 3F from further consideration as it appeared from his knowledge to be a Gravol pill which is readily obtainable over the counter in pharmacies. He also recognized on his own personal knowledge Exhibit 3E as Motrin, also a drug readily obtainable over the counter.

He took Exhibit 3A and 3B to Maxxam Analytics Inc. (“Maxxam”) for testing, as he had no idea what they were and there were no markings on them. Exhibit 3A was tested and it was determined that this was a vitamin pill. Exhibit 3B was tested and it was determined that this was a pill containing codeine, caffeine and ASA. The report of the analysis was admitted as Tab 6 of Exhibit 1.

He testified that with respect to the remaining samples, staff at Maxxam indicated they could not undertake the testing of the other pills at their labs but that they would have to send the pills away for testing. Rather than proceed that way, Mr. Beirnes chose to take back the pills and attempt to identify them on a visual basis using a Compendium of Pharmaceuticals and Specialties, 1999 edition, of which there was a copy at the OPP Illegal Gambling Unit Offices. The purpose of having the Compendium at that office is so the officers of that unit have access to it for the purpose of identifying such drugs in the course of their work. A portion of the Compendium was photocopied and included as Tabs 8, 9 and 10 in Exhibit 1.

Mr. Beirnes testified that he is aware that the Compendium is used by pharmacies as well as the OPP. He indicated that his visual analysis based on his review of the pills and the Compendium indicated that Exhibit 3C is 50 mg pill of Sodium Edecrin. He also undertook an Internet search and, on that basis and consulting with Detective Sergeant Steve Schandlen of the OPP Illegal Gambling Unit, he identified Exhibit 3D as a Furosemide pill sold as Novo-Semide, manufactured by NovoPharm.

In the pill bottle at the time of the search therefore, there were six 50 mg Sodium Edecrin pills (for a total of 300 mg.) and six 20 mg Furosemide pills (a total of 120 mg).

Mr. Beirnes testified as to statements made by the appellant to him at various points in the investigation. At the time of the search on October 18, Mr. Beirnes asked the appellant about contents of the pill bottle and he indicated that it held “a little bit of everything”.

Later that same evening Mr. Beirnes met with the appellant and asked him about the pills. In that interview, the appellant identified the pills as Gravol, aspirin, Motrin and, with respect to either Exhibit 3C or 3D, Robaxin. Both of Exhibit 3C and 3D are physically small pills but each has markings. Mr. Beirnes was unable to recall and his notes did not record which of the pills Exhibit 3C or 3D were identified by the appellant as Robaxin.

In February 2006 Mr. Beirnes served the appellant with a notice to produce documents and records pertaining to this matter. So far as the panel was informed, no documents were produced.

Subsequently on March 7, 2006 Mr. Beirnes and another investigator interviewed the appellant. At this interview, the appellant confirmed that the pills seized were for his own use and were for the treatment of gout and back pain. He identified the pills correctly as including Edecrin and Furosemide. He told the investigators he had obtained them from the late Dr. Clair Holmes, a veterinarian who also provided prescriptions for people. He said that he had obtained the prescription about a year ago from Dr. Holmes and had had it filled at a pharmacy in Barrie but he could not remember which one. He identified one of the pills as Furosemide. He said he did not have the prescription and he could not get a copy or confirmation because Dr. Holmes was dead and he could not remember which pharmacy he went to. He said the drugs were for his own personal use. He recognized that Furosemide is also sold as Lasix, which is a diuretic used for racehorses.

The appellant was clear in his statement that he knew the difference between the Lasix program for racehorses controlled by the Canadian Pari-Mutuel Agency and the use of Furosemide in humans. He said that the pills seized from him were not for use on the horses. He explained to the investigators that he did not know why he brought the pills to the track; they were just all in one bottle. When the appellant was asked about the pill identified as Exhibit 3B, he could not identify it and he indicated to the investigators that he did not know what it was for.

Mr. Baker in the interviews acknowledged that the pills were his.

Council for the appellant aggressively cross-examined Mr. Beirnes. The focus of the cross-examination was in the areas of:

a) security of the exhibits when seized by him, and therefore continuity;

b) his failure to note in his notes of his October 18 interview which of the white pills the appellant had identified as Robaxin and also his inability to recall this part of the interview beyond the fact that he showed the appellant at least one of the white pills;

c) his decision not to have the testing to identify the contents of the two pills done by a lab when Maxxam indicated it could not test the other 2 pills; and

d) his reliance on the Compendium and his Internet search and not on testing to identify Exhibits 3C and 3D.

Mr. Beirnes was adamant that the appellant had indicated that he had Robaxin among the pills that were seized when he was questioned in October and that by the time of the March interview the appellant was clear as to the correct names of the drugs, Edecrin and Furosemide.

The Administration called Dr. Joel Mayer who is Deputy Director of the Centre for Forensic Sciences in Toronto. Dr. Mayer was accepted as an expert qualified to testify as to toxicology and pharmacology, based on his academic and work experience qualifications in those fields. He was careful to confine his answers to the questions to those matters on which he felt qualified. Dr. Mayer testified that the Canadian Compendium of Pharmaceuticals and Specialties referred to by Investigator Beirnes is published by the Canadian Pharmaceutical Association to assist pharmacists, doctors and the public with respect to substances available by prescription or over the counter or used in medical treatment for their therapeutic effect. The Compendium provides information as to recommended dosage, intended use, contraindications, and route of administration. He said it was used by police forces and by members of the public. He identified the pages of photographs, copies of which were provided to us, and which indicated visual identification markers put on “solids” for identification purposes.

Dr. Mayer indicated that Edecrin and Novo-Semide were diuretics intended to stimulate the human’s body’s production of urine. There are slight differences between the two drugs in the level of action in the kidneys. Both are designed to alleviate the accumulation of fluids associated with congestive heart failure, kidney or liver failure. Furosemide is used to treat hypertension.

He testified that the drugs were not designed for the treatment of gout and that there are drugs specifically designed to attack the body’s production or accumulation of uric acid which is the issue with gout.

He also testified that in Canada a prescription is required to secure both Edecrin and Novo-Semide.

He also testified that the effect of consuming these drugs would be to dilute the urine so that a lower concentration of drugs would be secreted in the urine than would normally be excreted. As the concentration of drugs in the urine is lowered, the ability to test the urine for other drugs would be impaired.

Counsel for the appellant asked Dr. Mayer about the use of these drugs to remove the fluid associated with gout. He specifically refused to comment on the choice of treatment but indicated that there are drugs available specifically designed to deal with that condition, rather than these two diuretics.

Dr. Michael Weber, the Manager of the CPMA Research Facility, testified on issues related to the drug testing program in racehorses. Counsel for the appellant consented to Dr. Weber providing expert opinion evidence to the Commission. At the Research Facility, Dr. Weber oversees a program which involves testing blood and urine of racehorses for drugs.

Dr. Weber indicated that the total quantity of Furosemide identified as being in the pill bottle found by Investigator Beirnes in the appellant’s possession would be sufficient to induce diuresis in a racehorse. He testified that he could detect the diuresis in a racehorse after that dosage. He further testified that the Lasix program is specifically designed for the administration of Furosemide 4 hours prior to racing to assist racehorses. That program includes fixed dosages and route of administration, in addition to the fixed timing of the dosage. Giving a diuretic later than the four hours prior to racing would extend the diuresis beyond the period anticipated under the program in the case of a horse racing on the Lasix program, or in the case of a horse not on the program, would cause diuresis. The route of administration of any diuretic would have an impact on whether or not the diuresis would be detected and whether the drug would be detected, when the diuresis would occur and how long a period it would last. In terms of the testing of the urine of a horse to which such a substance had been given orally prior to racing, there might be a masking effect caused by the dilution of the urine, depending on what drug you were testing for. The drug testing program does include testing for furosemide in the urine taken post race on a random basis under the CPMA testing program.

Letters setting out the expert opinions of Dr. Mayer and Dr. Weber were filed as Tabs 12 and 14 of Exhibit 1.

The only evidence provided by the appellant was a copy of the race program page indicating that the appellant’s horse raced under the Lasix program, so it would have received a Lasix injection four hours prior to racing.

Submissions

The Administration asked that the appeal be dismissed. The submission was that the heart of this matter was the public interest, specifically the issue of the presence of controlled drugs on the backstretch and that they are only there for legitimate purposes and not for use to defeat either the CPMA testing program for race horses or the human drug testing program. The Administration submitted that any conduct that had the potential to undercut the effectiveness of either of those programs should attract censure and that it was fair and reasonable to expect licensees to provide proof that they have controlled drugs on a proper basis.

The Administration submitted that the panel should be satisfied that the evidence submitted proved that the pills that were found in the appellant’s driver’s bag were in fact controlled substances, Sodium Edecrin and Furosemide, even in the absence of destructive testing, as had occurred in the case of Exhibits 3A and 3B. With respect to the Compendium that was referred to by Investigator Beirnes, the Administration submitted that under Section 15 of the Statutory Powers Procedures Act the Commission is entitled to receive it as an exhibit and to rely on the information contained in the copy provided to us, based on the evidence in this case. At the very least, the material filed creates a presumption that has not been rebutted and which was strong enough to require responding and contradicting evidence.

The Administration submitted that we should reject the explanation given in the interviews of the appellant as to his having the drugs in question in his driver’s bag on the backstretch. The explanation in the interviews related to gout and back pain suffered at least several months prior to the search in question and though he had been given ample opportunity, the appellant had produced no supporting evidence of the prescription or the condition.

The appellant submitted that the appeal should be granted, that there is no rule prohibiting him from bringing controlled substances onto the backstretch. According to the appellant, if the Administration intends to assert an intention to defeat the human or equine drug testing program as misconduct under the broad wording of Rule 6.20, then the onus is on the Administration to prove the allegations on clear, cogent and convincing evidence. The appellant submits that the evidence provided through Investigator Beirnes, Dr. Mayer and Dr. Weber is not sufficiently clear, cogent and convincing.

The appellant’s counsel submitted that there was no proof that the pills Exhibit 3C and 3D were even part of the pills found in the pill bottle. He alleged a lack of continuity of the possession of the pills that were seized and urged us to reject the concept of the security of the locked locker that only Investigator Beirnes could access. He characterized the evidence of Investigator Beirnes as to whether Exhibits 3C and 3D were in fact controlled drugs as not being the evidence of an expert on which we could rely. He argued that Dr. Mayer could have been asked to identify the pills and since he was not asked to do so, we should draw an adverse inference, i.e. Dr. Mayer would not have substantiated Investigator Beirnes testimony if he had been asked.

The appellant also argued that Investigator Beirnes could have requested a urine sample from the appellant and the judges could have ordered the horse tested after racing. Neither was done. The difficulty with this argument is that the drugs were seized at the gate of the racetrack, so that drugs the appellant wanted to take onto the backstretch were seized before he could do so. Also, Investigator Beirnes did not know at the time of seizure of the drugs what the drugs were. Targeted testing for those drugs would not have been possible since the investigator could not tell the lab what to test for.

In response the Administration argued that under Rule 10.03 they have the power to order the testing of substances but they do not have to test in all cases where they are confident of the identification by other means. The Administration’s position is that Investigator Beirnes properly identified the drugs and the appellant in fact confirmed it at the March 7 interview when without prompting he named the drugs correctly, despite giving the name of a different drug in October at the initial seizure. Also, if the Compendium was designed to be used by lay people in part to help them identify the drugs they have in their possession prior to taking them, then it was surely reliable enough for the investigator to use in these circumstances.

The Administration also rejected that an adverse inference applied to Dr. Mayer’s evidence. The inference can only arise when there is some evidence to respond to and given that there was no evidence other that of Investigator Beirnes as to the identity of the drugs, there is no adverse inference in this case to be drawn from Dr. Mayer not having specifically identified the pills.

Conclusions

We have carefully considered the evidence and the rules of racing.

We recognize the onus on the Administration to prove the rule violation on clear cogent and compelling evidence. In our view the Administration has proven the rule violation as alleged.

We agree with the Administration’s position with respect to the argument as to an adverse inference applying to the evidence of Dr. Mayer and the identification of the drugs.

We agree with the Administration that the appellant’s explanation to the investigators for having the drugs in his possession is not plausible. On the surface it is not an unexpected occurrence for people to mix in one pill bottle several medications that they have to take, or to have medications that are no longer needed at that particular time mixed in with others needed more recently. The practice carries some risks. The difficulty here is the significant risks for horse racing from such a practice. This is a heavily regulated industry. In the racing industry it is well known among participants that the issue of medication and its illicit use is regarded as a matter affecting the integrity of the sport and constituting a danger to the horses and human participants. There is therefore an onus on all licensees with respect to drugs or medications to be alert to the potential harm that can come from what would otherwise be acceptable practices and specifically to be very careful as to what is brought onto the backstretch.

Whether intended or otherwise, bringing such substances onto the backstretch increases the potential that the substances will end up in a horse.

Further it is not reasonable for the appellant to have taken no steps to locate the pharmacy where the prescription was filled to obtain some documentation to support his claim that he had a prescription for the drugs in question. There is not an unlimited number of drugstores in Barrie, Ontario, and only the appellant would know how to eliminate those drugstores he had never visited. We have no evidence of any effort being made at all to locate the drug store in question. The information is entirely within the control of the appellant.

Further, the evidence of Dr. Mayer responds to the explanation of the appellant that the drugs were given for the treatment of gout and back pain. These drugs are not designed to treat those conditions and other drugs are available to treat the conditions. There is no evidence that the appellant in fact suffered from gout or back pain from any source other than the statements to the investigators. Even if the appellant went to the late Dr. Holmes for treatment of these symptoms, one would normally expect that someone else in the appellant’s life would be aware that he was suffering from these conditions in March 2005 when he said that the late Dr. Holmes prescribed these drugs. No one was called to provide that evidence.

Under the Rules of Racing, there is a positive obligation on a licensee to provide information for the judges and investigators. Given the evidence led by the Administration and the fact that only the appellant could respond with his own personal knowledge to give the explanations, we draw an adverse inference from the fact that he did not testify.

The case for the Administration certainly has a shortcoming. It is not “best practice” for the investigator not to have a note of which of the two pills Exhibit 3C or 3D, was shown to the appellant and identified as Robaxin. Despite aggressive and at some points antagonistic cross-examination by counsel for the appellant, we are satisfied that:

a) the pills marked as the exhibits were in fact in the pill bottle seized by Investigator Beirnes;

b) the pills Exhibits 3C and 3D are controlled substances and no valid credible explanation for having those substances on the backstretch has been provided.

c) the continuity of the pills that have now been marked as exhibits has been satisfactorily proven.

d) the Compendium referred to by Investigator Beirnes is a recognized publication used for the identification of solid medications such as the pills in this case.

e) despite the absence of testing of Exhibits 3C and 3D, the drugs Sodium Edecrin and Furosemide were among the pills contained in the pill bottle in the possession of the appellant without a valid explanation;

f) the drugs Sodium Edecrin and Furosemide could, if improperly used, impair the urine testing program for both the horses and human participants in racing; and

g) the appellant either intended to bring those drugs onto the backstretch or was careless as to whether or not he brought them onto the backstretch, even if harm resulted.

The public interest in this case is affected because of the issues of the integrity of the testing programs, the health of the horse and the safety and welfare of the human race participants. In addition, the Rules of Racing place a heavy onus on all trainers to guard and protect their horses. The appellant brought those drugs onto the backstretch not in their proper containers, and, his counsel would have us believe, apparently without appreciating what he had in his possession. Whether by accident or intentionally, the presence of such substances outside of their proper containers and without proper documentation on the backstretch raises the potential of accidental or intentional tampering with the horses, such as might well cause difficulties for the other trainers in the paddock. The strict liability burden of the trainer responsibility rule requires that the regulator and tracks be vigilant in taking steps to prevent drugs from getting onto the backstretch. Further the public interest in fair racing contests requires that same vigilance. Such vigilance is, however, potentially ineffective without a disciplinary consequence for those who would run the risk of accidentally or intentionally giving a horse a controlled substance prior to a race or providing the same to a human who might be tested for marijuana and cocaine.

We are therefore satisfied that the appellant is in violation of the Rules of Racing, Rule 6.20(a) and (b) as found by the judges.

We will not change the penalty imposed by the judges by way of fine and suspension as both appear to be appropriate in all the circumstances.

Finally, the appellant submitted that there was something amiss with this case that it had dragged on for so long. The search was in October 2005. Interviews occurred in October 2005 and March 2006. The letter from Maxxam concerning Exhibits 3A and 3B is dated in January 2006. The service of the notice to produce documents was in February 2006. Investigator Beirnes testified as to why it took from October to January to obtain an analysis from Maxxam.

While the Commission attempts to schedule cases as soon as possible, the process may be delayed by the obligations of disclosure of documents and experts’ reports and will say statements, and further by the unavailability of counsel or witnesses, the hearing room or a panel. No argument was brought to us that there could have been other witnesses called who were not available because of the timing of the hearing. In our view while it would have been preferable to hold the hearing earlier in 2006, there is no prejudice to the appellant in that delay. We therefore find the allegation that there was something amiss as to the handling of this matter based on the timing of this investigation and hearing of this matter to be unfounded.

DATED this 13th day of December 2006.

_________________________________

Lynda Tanaka

Past Chair