IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL OF
STANDARDBRED LICENSEE SANDY JONES
Whereas the licence of the driver/trainer Sandy Jones was suspended pursuant to Rule 6.38.05 (iii) of the Rules of Standardbred Racing on May 19^th^, 2006 for having tested positive for THC Carboxylic Acid on May 11^th^, 2006, Mr. Jones was required to appear before the Ontario Racing Commission.
Mr. Jones appeared before the Ontario Racing Commission on June 14^th^, 2006.
Chair Lynda Tanaka sitting alone convened a hearing into the matter and upon reviewing the exhibits filed and upon hearing the evidence of Mr. Jones and the submissions of the parties, the Commission ordered the following:
(a) In accordance with the terms of Mr. Jones probation imposed in ruling SB 253/2005, Mr. Jones is hereby fully suspended commencing immediately and continuing up until August 22^nd^, 2007.
The Commission’s oral reasons for decision form part of the transcript of the hearing which is attached to this Ruling.
DATED at Toronto this 29^th^ day of June 2006.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
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1ONTARIO RACING COMMISSION
STANDARDBRED HEARING
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IN THE MATTER OF THE Racing Commission Act,
3 2000, S.O. 2000, c 20
4
-and-
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6 IN THE MATTER OF: Standardbred Licensee: SANDY JONES
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BEFORE: Lynda Tanaka Chair
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Hearing Conducted in the Hearing
14 Room of the Ontario Racing Commission, 10 Carlson
Court, Toronto, Ontario, M9W 6L2, on the 14th day
15 of June 2006.
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APPEARANCES:
18
Luisa J. Ritacca Counsel for the
19 Administration
20 Garry J. Guzzo For Mr. Jones
21 William Fines Supervisor Standardbred Racing
22
Maureen Harquail In-house counsel for ORC
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25 TORONTO COURT REPORTERS - TORONTO - ONTARIO
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1 INDEX OF PROCEEDINGS
2PAGE NO.
3Opening Comments - Ritacca 4
Opening Comments - Guzzo 6
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Evidence - Administration 7
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6 SANDY JONES:
7 In-chief - Guzzo 10
Cross-exam - Ritacca 21
8 Re-exam - Guzzo 25
Questions from The Chair 26
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NANCY SEGUIN:
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In-chief - Guzzo 28
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12 Submissions - Ritacca 30
13 Submissions - Guzzo 33
14 Reply - Ritacca 42
15 Decision - The Chair 44
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2 EXHIBIT NO. PAGE NO.
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4 1: Document brief containing 10 tabs 6
5 2: Photograph of hair sample being
taken from Mr. Jones on May 23, 2006
6 20
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TORONTO COURT REPORTERS - TORONTO – ONTARIO
Decision - The Chair - 44
1 THE CHAIR: I'm going to take 10
2 minutes.
3 ----------SHORT RECESS----------
4THE CHAIR: This is an appeal from
5Ruling Standardbred 109/2006 in which the
6Director of Racing suspended the licence of
7Sandy Jones for a positive test for THC;
8Carboxylic Acid, and it is a suspension for
9 driving, training, warming up and parading
10 horses effective May 19, 2006 to August 22,
11 2007.
12 The Ruling follows a Ruling made
13 November 22, 2005 by the Commission in which Mr.
14 Jones was previously penalised by the Commission
15 with a suspension of his licence to February 22,
16 2006 from October -- sorry -- November of
17 2005.
18 Mr. Jones was the subject of an Order
19 that he enter an 18 month probation period
20 following February 22, 2006 when he got his
21 licences back and that, during that probationary
22 period, he would enrol in and attend a
23 rehabilitation program satisfactory to the
24 Director of Racing, present himself to the Drug
25 Unit to provide urine sample whenever random
Decision - The Chair - 45
1 testing is carried out at the race track where
2 he is programmed to be present and, finally,
3 that if he provided a positive sample he would
4 be fully suspended; that suspension continuing
5 until August 22, 2007.
6 Therefore, in essence, this is an
7 appeal dealing with breach of the terms of
8 probation.
9The Commission relies on a certificate
10 of positive analysis issued by Maxxam
11 Laboratories, dated May 17, 2006, for a sample
12 taken May 15, 2006.
13 Maxxam Laboratory is an approved
14 testing laboratory within the meaning of the
15 Pari-Mutuel Betting supervision Regulations as
16 provided under Rule 6.38.01.
17 There was no notification given to the
18 Administration, that I've heard about, as to a
19 substantive attack on that certificate of
20 positive test.
21 During the course of the evidence an
22 argument was raised as to the issue of the lack
23 of a medical review officer. That individual
24 is referred to on the testing, custody and
25 control form issued by Maxxam Analytics for
Decision - The Chair - 46
1 their clients. It is not an ORC form. ORC is
2 listed as the employer.
3 Also raised was the possibility of a
4 mix-up of samples of urine because 12 licensees
5 were tested that same day; May 11, 2006.
6 Mr. Jones, in his evidence, did not
7 provide any basis on which one can conclude that
8 the normal processes of chain of custody,
9 including the sealing and identifying of the
10 urine sample, following collection were not
11 followed.
12 With respect to the medical review
13 officer, it is not the usual ORC process, at
14 this time, to involve a medical review officer
15 but, in any event, the medical review officer is
16 intended to determine if prescription or
17 non-prescription drugs could be the cause of the
18 positive test and there is no allegation, as
19 confirmed by Mr. Jones in his evidence, that he
20 blames the positive test on prescription or
21 non-prescription drugs.
22 In these circumstances, I accept the
23 Maxxam certificate as proof of the presence of
24 the drug metabolite in his urine on the day in
25 question.
Decision - The Chair - 47
1 With respect -- the Appellant relies
2 on a certificate which has been entered as tab 6
3 of Exhibit 1 and the private drug testing and
4 control form at tab 7 of Exhibit 1. The form
5 is stamped with a name R. J. Wahby; W-a-h-b-y,
6 MD with what is described as a verification date
7 of May 28, 2006. The collection site was MDS
8 Labs at 75 International Boulevard, Toronto,
9 Ontario and the laboratory is described as Lab
10One at 10101, look like Rennar; R-e-n-n-a-r,
11Boulevard and I can't read the municipality on
12 the form that has been provided. It is
13 described as a random test and that the donor
14 was negative.
15 There is no evidence provided to me
16 from anyone with any expertise with respect to
17 the testing methodology or any other significant
18 factors. Indeed, there was no expert evidence
19 called at all with respect to the certificate
20 and the person who signed it was not called.
21 Mr. Guzzo says that the Maxxam Lab
22 certificate has the same problems but the Maxxam
23 Lab is approved under the structure of the
24 Pari-Mutuel Betting Regulations and the
25 Commission has heard evidence, in many cases, of
Decision - The Chair - 48
1 the quality controls, equipment specifications
2 and other requirements imposed as part of the
3 regulatory structure for horse racing in Canada
4 to minimize the potential for false negatives
5 and false positives. I have no such evidence
6 here, nor has the Commission, with a similar
7 background.
8 Mr. Guzzo relies on a Court of Appeal
9 case in which a hair test, he says, was accepted
10 as an indication of substance use or abuse. He
11 did not have the case here to refer to.
12An indication, in my mind, is
13 something substantially less than a confirmatory
14 test. I know that there was a confirmatory test
15 on the Maxxam certificate because it is required
16 in their test protocols and referred to in the
17 test certificate.
18 I don't know that the hair test is
19 valid for single use -- for identification of
20 single use of a substance as opposed to a
21 consistent use.
22 I have no evidence as to the
23 importance of the timing of the test but, based
24 on the technicalities of urine and blood
25 sampling that I am aware of from my background
Decision - The Chair - 49
1 on the Commission and hearing evidence with
2 respect to the chemistry and the chemicals and
3 the requirements of testing, I'm aware of the
4 potential for pre-test treatment and handling as
5 well as equipment and quality assurance to
6 impact on false positives or false negatives.
7 The hair test may well be an
8 indication of something but the question is
9 whether a regulator acting in the public
10 interest should accept a hair test without proof
11 as sufficient evidence that a positive test
12 certificate issued by Maxxam was wrong or to
13 remove the probability that the certificate of
14 urine analysis is correct. My finding is that
15 it is not sufficient in this case on the
16 evidence that has been given to me.
17 Mr. Jones has a lengthy history of
18 drug use, if not drug abuse. He blames the last
19 two positive test on contacts with his
20 brother-in-law and a close friend.
21 I'm not satisfied he has dealt head-on
22 on with his drug use problem. I am reminded of
23 my Ruling last November because it is included
24 in Exhibit 1.
25 I see no reason to modify the penalty
Decision - The Chair - 50
1 imposed for breach of terms of probation. The
2 suspension to fully -- the full suspension was
3 almost half of what others were receiving at the
4 time for similar drug tests within similar
5 periods.
6 I gave Mr. Jones a break; providing a
7 minimal suspension for about three or four
8 months and impose lengthy probationary terms on
9 the basis of his evidence that it was a one-off
10 stress related situation.
11 I have no evidence, other than a very
12 limited evidence, of a rehabilitation program.
13The only evidence that I have is that he calls
14Mr. Rose every two or three weeks and goes in to
15 see him when his calendar provides.
16 I therefore see no reason to modify
17 the penalty imposed for breach of the terms of
18 probation. Therefore, the suspension is a full
19 suspension until August 2007 as provided in the
20 Ruling. Thank you?
21 A. It's a joke.
22 MS RITACCA: Madam Chair, can I just
23 clarify that in your earlier Ruling, at 3.(c) of
24 the probation, it says: Mr. Jones will be fully
25 suspended. Then I see that Mr. Stone, in his
Decision - The Chair - 51
1 May 19th Ruling, said that Mr. Jones was
2 suspended from driving, training, warming up and
3 parading horses. I don't believe that is a
4 full suspension.
5 THE CHAIR: No, it isn't.
6 MS RITACCA: So, my understanding of
7 your terms of probation, it would have been a
8 full suspension?
9 THE CHAIR: It was a full suspension.
10 MS RITACCA: And that's what you're
11 saying today?
12 THE CHAIR: That's what I'm saying
13 today.
14 MR. GUZZO: Well, let me see if I have
15 this straight: He's here on a breach of the
16 Order, that you made, and you're now suggesting
17 that it is more than that?
18 THE CHAIR: The provisions of Ruling SB
19 109/2006, 3.(c): Should Mr. Jones fail to
20 provide a sample when required, or should he
21 provide a positive, improper and/or unacceptable
22 sample during this period, Mr. Jones will be
23 fully suspended, commencing immediately and
24 continuing until August 22, 2007.
25 MR. GUZZO: Where did the information
Decision - The Chair - 52
1 come in about training, driving? That was from
2 --
3 THE CHAIR: That was Mr. Stone's
4 exercise of his discretion.
5 MR. GUZZO: One moment, please.
6 Thank you very much.
7 THE CHAIR: Thank you.
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25 TORONTO COURT REPORTERS - TORONTO – ONTARIO
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5 I hereby certify the foregoing to be
6 a true and accurate transcript as taken
7 by me to the best of my skill and
8 ability.
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11 _____________________________
12 Christine McAlister, B.A.,C.S.R.
13 Toronto Court Reporters
14 1410 - 65 Queen Street West, Box 69
15Toronto, Ontario M5H 2M5
16 (416) 364-2065
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