IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF
STANDARDBRED LICENSEE PATRICK HUDON
The Director ordered the Immediate Suspension of Standardbred licensee Patrick Hudon pursuant to section 23 of the Racing Commission Act, and further issued a Notice of Proposed Order imposing a suspension of Patrick Hudon's licenses, for ten years and by Ruling, imposed a fine of $100,000. Patrick Hudon requested a hearing concerning the Director's Order and Proposed Order and Ruling.
On March 9, 2007, a Panel of the Commission consisting of Vice-Chair, the Hon. James Donnelly, Commissioners Bernard Brennan, DVM and Jane Garthson, convened to hold the hearing. Brendan Van Niejenhuis appeared as counsel for the Administration and Gerald Sternberg appeared as counsel for Patrick
On the objection of counsel for Patrick Hudon to the admissibility of a statement sought to be tendered in evidence by the Administration, the Panel held a voir dire, on consent of all parties, at the outset of the hearing. On the voir dire, the Panel heard the evidence of Detective Sergeant Steve Schandlen, and Patrick Hudon. The Panel adjourned and directed that written submissions be provided on the voir dire.
On March 21, 2007, the Panel reconvened. On hearing the evidence and reading the exhibits, and on hearing and reading the submissions of counsel, the Panel ordered that the statement tendered by the Administration was inadmissible in evidence.
Vice-Chair Donnelly (Commissioner Brennan concurring) gave oral reasons for the ruling. Commissioner Garthson gave separate oral reasons for the ruling, concurring in the result.
On receiving the Ruling, the Administration advised that it would tender no further evidence. On application by counsel for Patrick Hudon, unopposed by the Administration, the Panel ordered as follows:
The Order of Immediate Suspension was set aside;
The Proposed Order of the Director was not confirmed;
The racing privileges of Patrick Hudon were restored to their status
prior to the Order of Immediate Suspension;
- The $100,000 fine imposed by the Director was cancelled and
rescinded.
The Commission’s reasons for decision form part of the transcript of the hearing and is attached to this Ruling.
DATED this 18th day of April 2007.
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
ONTARIO RACING COMMISSION STANDARDBRED HEARING
This is the continuation of the hearing heard before a panel of the Ontario Racing Commission re: PATRICK HUDON, in the above mentioned matter held before The Ontario Racing Commission, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, on the 21st day of March, 2007.
Heard before:
James Donnelly, Vice Chair
Bernard Brennan
Jane Garthson
Appearances:
Brendan Van Niejenhuis
for the Ontario Racing Commission Administration,
Gerald Sternberg,
for Patrick Hudon
TORONTO COURT REPORTERS - TORONTO, ONTARIO
Patrick Hudon - March 21, 2007 - 2
1Hearing commenced 10:00 a.m.
2MR. FINES: All rise please. This hearing
3 before the Ontario Racing Commission is now in session.
4 MR. CHAIRMAN: Please be seated. Counsel,
5 on behalf of the panel I thank you your careful
6 submissions which have been most helpful in this
7 difficult matter. Are there any preliminary matters?
8 MR. VAN NIEJENHUIS: I believe ... well, I
9 don't believe so.
10 MR. CHAIRMAN: You are ready for the ruling?
11 MR. VAN NIEJENHUIS: Yes.
12 MR. CHAIRMAN: Thanks. Is that so, Mr.
13 Sternberg?
14 MR. STERNBERG: Yes.
15 MR. CHAIRMAN: Mr. Reporter, I am going to
16 dictate reasons and for the benefit of counsel I don't
17 have them typed. I am dealing with my notes and for
18 that reason I reserve the right to improve the syntax
19 or the paragraph structure and that type of thing. The
20 result will not change nor will the substance of the
21 reasons. Thank you.
22 Notwithstanding the broad powers of
23 admissibility conferred by Section 15 of the Statutory
24 Powers Procedure Act the Patrick Hudon hearing
Patrick Hudon - March 21, 2007 - 3
1 opened with an unusual request. Counsel jointly
2 submitted that an admissibility hearing or a voire
3 dire be conducted for a written statement provided by
4 Mr. Hudon to Detective Sergeant Steve Schandlen of the
5 Ontario Provincial Police investigative unit seconded
6 to the Ontario Racing Commission.
7 One Sandy DiFlorio and his company
8 preracespecialist.com had been investigated with
9 respect to the supply of illegal pre-race supplements
10 to the racing community. In April 2006, under search
11 and seizure authority, computers, documents and
12 substances were seized from Mr. DiFlorio. Analysis of
13 the computer information disclosed products of interest
14 to ORC investigators and the names of persons in the
15 racing industry, one being Patrick Hudon.
16 Findings of fact: On November 14, 2006
17 Patrick Hudon was scheduled to drive at Georgian Downs
18 Raceway. At 7;12 p.m. as Mr. Hudon arrived at the
19 front gate he was met by Sergeant Schandlen who
20 identified himself as a police officer.
21 Sergeant Schandlen stated that on behalf of
22 the ORC he was investigating potential criminal charges
23 against Sandy DiFlorio. He required witness
24 information from Mr. Hudon who although not a suspect
25 could be a witness in the criminal proceedings.
Patrick Hudon - March 21, 2007 - 4
1 He told Hudon that as a Commission licensee
2 he was obliged by the Rules of Racing to provide a
3 truthful statement. He advised that the information
4 would be turned over to the ORC for their decision. No
5 threats were made, no inducement was explicitly
6 offered. Hudon displayed no sign of intoxicants or
7 memory difficulty. At no time did he request that the
8 interview stop. The issue of a lawyer was not raised by
9 either party.
10 Hudon appeared to understand the demand and
11 made no inquiry for details. His response was
12 described as friendly and extremely cooperative.
13 Displaying no reluctance, he agreed to the request.
14 At the raceway judges’ office a discussion
15 occurred. This was followed by a written statement in
16 question and answer format. The sergeant read the
17 statement aloud to Mr. Hudon who approved and signed
18 it. The interview which ended at 8:36 p.m. had been
19 interrupted by Hudon's absence of about a half hour for
20 racing duties, including the pre-race jogging of a
21 horse. Hudon then returned and the statement was
22 completed.
23 Sergeant Schandlen made skeletal notes in
24 his notebook recording time, place and personal
25 information. He made no notes of his explanations
26 preceding the written statement. By deliberate choice,
Patrick Hudon - March 21, 2007 - 5
1 Sergeant Schandlen made no audio tape of his
2 explanation relating to DiFlorio, the purpose of the
3 statement from Hudon, any regulatory concerns or the
4 reason underlying his final reference to the ORC. The
5 precise exchange is lost. The subtleties of the
6 conversation are irretrievably gone. The sergeant
7 stated that the written document was not the entirety
8 of the discussion, it was his depiction of the
9 discussion as best was possible. That depiction was
10 not precisely word for word but was as close as the
11 sergeant could come.
12 Patrick Hudon, age 35, gave evidence that
13 dyslectic and suspended from school for fighting after
14 a couple of weeks in grade 9, he went into full-time
15 harness racing and has so remained. He described an
16 accident in a qualifying race in April 2002 which
17 rendered him unconscious. Recovery from physical
18 injuries extended over four to five months. Since then
19 he stated that his memory has been horrible and his
20 speech bad. Thinking he was fine he continued to drive
21 horses but found he was unable to compete and has
22 concentrated on training horses.
23 From a lay perspective his evidence and
24 demeanour suggested a somewhat limited cognitive
Patrick Hudon - March 21, 2007 - 6
1 function. Hudon described his interaction with
2 Sergeant Schandlen. He was late arriving at the track.
3 When he was approached by the officer he thought it
4 must relate to some type of driving incident en route
5 to the track. His evidence was that Sergeant Schandlen
6 said: "I want to talk about Sandy. I just want to ask
7 you some questions." Schandlen led him to believe that
8 the inquiry was solely about Sandy and for that purpose
9 the information would go to the ORC. Hudon went on to
10 say: "If I had known that this was about the ORC
11 (Ontario Racing Commission) and Aranesp (a prohibited
12 substance) I would want my lawyer." His claimed state of
13 mind was, “I was not in any trouble, I just wanted to
14 get out.”
15 Several factors support the conclusion that
16 Mr. Hudon was misled. Foremost and decisive
17 amongst them is his conduct from which his state of
18 mind can be inferred.That conduct must be assessed
19 against his demonstrated mental ability and his
20 understanding of the events. In evidence he admitted
21 that his stable help had informed him about the April
22 2006 Commission directive identifying severe
23 consequences for EPO violations. Accordingly, at the
24 time of the Schandlen interview he knew of the
25 potential for serious consequences.
Patrick Hudon - March 21, 2007 - 7
1 Sergeant Schandlen described him as
2 friendly, extremely cooperative, displaying no
3 reluctance. This is not the conduct of a man knowingly
4 sticking his head into the noose of a ten year full
5 suspension and a $100,000.00 fine (both of which were
6 later imposed by the ORC Director). Mr. Hudon's
7 conduct further threw light on his priorities at the
8 time. Had he been aware of the gravity of his own
9 situation his attention and priority might reasonably be
10 expected to be riveted on Sergeant Schandlen's
11 concerns. Instead, he gave priority to racing issues
12 taking the pre-race driver's breathalyser test, jogging a
13 horse and barn chores. After attending to those routine
14 matters he devoted his time to completing the
15 statement for Sergeant Schandlen.
16 With memory difficulties Mr. Hudon may not
17 be accurate in terms of precisely restating
18 conversations. I am satisfied that he can recall and
19 describe his state of mind regarding awareness of any
20 peril. My assessment of his evidence on that issue was
21 that it was honestly given, accurate and reliable. In
22 result, the conclusion is inescapable that Mr. Hudon
23 was totally unaware that he was under investigation,
24 that he was in an adversarial position or that he had
25 any personal stake in the investigation. Accordingly,
26 he was totally unaware of the potential consequences
Patrick Hudon - March 21, 2007 - 8
1 and acting on that misconception he made an
2 incriminating statement. There is no reason not to
3 accept Mr. Hudon's evidence that, "If I had known that
4 this was about the ORC and Aranesp I would want a
5 lawyer". Based upon that acceptance it follows that
6 Mr. Hudon would have sought legal advice before matters
7 proceeded further.
8 The following factors bear on the second
9 issue, whether Mr. Hudon was deliberately misled or
10 in a single word, deceived. The following
11 supplementary findings of fact are made.
12 By virtue of his ORC enforcement duties
13 Sergeant Schandlen knew of the April 2006 Commission
14 directive identifying the serious nature of EPO
15 breaches.
16 Sergeant Schandlen planned to intercept Mr.
17 Hudon as he arrived at the racetrack and deliberately
18 gave no advance notice to him.
19 Prior to speaking to Mr. Hudon, Sergeant
20 Schandlen was aware that computer records seized from
21 Sandy DiFlorio purported to record purchases by Mr.
22 Hudon of Aranesp, a trade-name for the prohibited drug
23 EPO.
24 Sergeant Schandlen was therefore aware of
25 the serious implications for Mr. Hudon relating to the
Patrick Hudon - March 21, 2007 - 9
1 DiFlorio information.
2 Sergeant Schandlen did and said nothing to
3 alert Mr. Hudon to the fact that he was in jeopardy,
4 much less to identify the nature and extent of the
5 jeopardy. He shaped the interview to induce the
6 misconception that any jeopardy was exclusively
7 DiFlorio's and Hudon's participation was solely as a
8 provider of information for that investigation.
9 In balance was a consequence far more
10 serious than in most criminal trials. To wit, a ten
11 year full suspension of Mr. Hudon's occupation plus a
12 fine of $100,000.00. The penalty for Mr. Hudon would
13 be more than loss of a job. He has no other marketable
14 skill. He would be difficult to retrain. The
15 probability is that he would be consigned to the
16 unskilled labour force.
17 The $100,000.00 fine has the capacity to
18 extend the ten year suspension. Rule 6.15 of the
19 Standardbred Rules of Racing provides "A licensee who
20 fails to pay such a fine may be suspended until the
21 fine is paid". Thereby imposition of such a
22 substantial fine has an oblique potential to result
23 in an indefinite suspension.
24 Sergeant Schandlen did not express a link
25 between the information supplied by Hudon and its
26 devastating potential impact on Hudon's status with the
Patrick Hudon - March 21, 2007 - 10
1 Racing Commission.
2 Sergeant Schandlen did not expressly state
3 that Mr. Hudon was not in trouble but he went to pains
4 to induce that state of mind. He may as well have
5 stated those words because the same result was achieved
6 by the manner in which he framed the setting and
7 conducted the interview. A significant feature
8 supporting a finding of willful deception and its
9 effectiveness is the fact that Sergeant Schandlen
10 introduced the reason for his attendance as relating to
11 a criminal investigation of Sandy DiFlorio.
12 He followed up with an explanation that he
13 required witness information from Hudon. That
14 characterization of Hudon's statement as witness
15 information relating to criminal proceedings against
16 DiFlorio actively and effectively contributed to Mr.
17 Hudon's grave misconception.
18 A further factor supporting the finding
19 of deception is Hudon's own testimony that “if I had
20 known that this was about the ORC and Aranesp I would
21 want my lawyer”. – “I was not in any trouble and I
22 just wanted out” - “he made me feel like they were
23 just asking about DiFlorio.”
24 Earlier I stated that I accepted the first
25 sentence dealing with the ORC and Aranesp. I now add
26 that I accept as truthful and reliable the latter two
Patrick Hudon - March 21, 2007 - 11
1 sentences. Sergeant Schandlen's second reference to
2 the ORC was nebulous and obscure. One thing is
3 certain, it did not connect the dots for Mr. Hudon nor
4 am I able to find that it was intended to do so.
5 Given Sergeant Schandlen's supervisory
6 capacity with the ORC investigative unit it would be
7 naive to conclude that Mr. Hudon's misconception
8 came about by pure happenstance. Rational inference
9 dictates that this was a result achieved by
10 forethought and skill. The misconception was induced.
11 To “deceive” is to deliberately mislead or to
12 create a mistaken impression. Mr. Hudon was deceived.
13 The error was neither failure to disclose investigative
14 information nor failure to draw attention to any
15 necessity for a lawyer. The issue was simply willful
16 deceit.
17 It is an error to become too engrossed in
18 incorporating legal concepts of admissibility in an
19 administrative setting. This is recognized by Section
20 15 of the Statutory Powers Procedure Act: "A
21 tribunal may admit evidence whether or not it is
22 admissible as evidence in a court". Absent
23 compelling reasons for exclusion the effective and
24 efficient alternative is to admit the challenged
25 evidence. Once admitted it should be carefully
Patrick Hudon - March 21, 2007 - 12
1 assessed and its cogency or otherwise noted in the reasons for
2 the decision.
3We deal not with the criminal law issue of whether the
4 investigative “dirty trick” shocks the community conscience.
5 The issue is whether the ethical standard of the Racing
6 Commission and its employees and agents takes the high road.
7 To apply criminal law trial standards would be to
8 convert administrative hearings into an interminable morass of
9 motions following the current mode of criminal trials. Concepts
10 of prompt efficient regulatory disposition would be ancient
11 history.
12 So also it is a mistake to import criminal investigative
13 procedures into the administrative context without careful
14 thought. As has been so often stated, the detection of crime
15 is not bound by the Marquis of Queensbury rules. Sting
16 operations, reverse stings, other undercover operations and the
17 like are common and not improper in the war on crime on such as
18 drugs. That activity is not cast as entrapment because that crime
19 with an endless unknown source of criminals is difficult to detect.
20 Considerations justifying that type of investigative
21 activity in the criminal setting do not apply to regulation and
22 governance of Commission licensees. The reasons are:
23 Regulatory provisions are being enforced not
24 criminal laws.
25 Investigators are dealing with a closed
26 system. There is a limited number of licensees. All
Patrick Hudon - March 21, 2007 - 13
1 are identified. The whereabouts of each is
2 largely known. Their horses are known and for the most
3 part their stabling locations. Entry dates for the
4 horses to race are known. Past performance chart lines
5 for the horses are available. Wide investigative
6 powers are conferred by the Rules of Racing including
7 power to take statements from licensees who are obliged
8 to make full and truthful disclosure. There are wide
9 powers to take blood and urine tests on horses, both in
10 and out of the racing context. There are powers of search
11 and seizure. As well, there are the routine investigative
12 techniques such as surveillance in its various forms,
13 informants who may be developed through other
14 investigations and the like. If those powers in their
15 totality prove inadequate there remains the option
16 of seeking supplementary powers by amendment to racing
17 rules.
18 Given that full investigative support
19 structure, is it in the public interest for the Racing
20 Commission to exercise or condone deceitful practice
21 through its investigators? If investigators use
22 deceitful means, trust and respect vanish. That
23 tarnish on the investigative branch will indelibly
24 transfer to the Commission. Any concern that the
25 Commission may have about its public image is best
26 addressed by conducting operations at a high level of
Patrick Hudon - March 21, 2007 - 14
1 ethics and efficiency. The solution is not to demean
2 the Commission by resort to deceit of Commission
3 licensees.
4 What purpose is there in extending full
5 adjudicative fairness to a licensee in the hearing room
6 if he has already been impaled by an investigation
7 tainted by unfairness, deceit and the lack of honesty
8 and integrity. The result would be, rendering the
9 adjudicative process as a rubber stamp of the
10 inevitable.
11 Prior unfairness is properly cured by
12 fairness at the hearing stage. A full hearing was
13 convened for the purpose of taking evidence and hearing
14 submissions. The hearing proceeded not in appeal form
15 but as a de novo hearing. A full hearing on the
16 admissibility issue was convened upon the joint request
17 of counsel. Evidence was heard, submissions were made
18 orally, followed by written submissions. That
19 procedural fairness alone is not an adequate remedy.
20 Overall fairness in the adjudicative process may
21 require exclusion of the tainted evidence.
22 Section 6 of the Racing Act establishes the
23 standard of Commission conduct: "The Commission shall
24 exercise its powers and perform its duties in the
25 public interest and in accordance with the principles
Patrick Hudon - March 21, 2007 - 15
1 of honesty, integrity and social responsibility.
2 By Standardbred racing rule 6.27 the
3 Commission imposes an equivalent high standard of
4 conduct on licensees by making it a violation to
5 "knowingly mislead investigators".
6 Should an equivalent standard be exacted
7 from Commission investigators requiring them to not
8 knowingly mislead licensees. Innocent licensees may be
9 investigated. Should they be dealt with, in the words
10 of Section 6, in accordance with principles of honesty,
11 integrity and social responsibility. Should they have
12 the right to rely on investigators not to knowingly
13 mislead them by deceit. Can the Commission have a dual
14 standard, in effect, a standard of convenience - saying
15 for licensees who are perceived not to require
16 investigation the standard will be of the highest
17 order, one of integrity. However, for licensees
18 perceived to require investigation but as yet neither
19 convicted of nor found in breach of a rule, the
20 standard will be lowered by incorporating or at least
21 condoning deceit.
22 If Commission policy supports or condones
23 investigative deceit then the Commission is a party to
24 the deceit. Given the statutory duty of integrity
25 impressed upon the Commission there can be no place for
26 deceit in Commission operations. More so, there can be
Patrick Hudon - March 21, 2007 - 16
1 no place for covertly condoning deceit.
2 If a policy of deceit is to exist, should it
3 be made known and promulgated. That could be achieved
4 by supplementing Standardbred Rule 6.27. The rule
5 provides:
6 "If in any investigation or case, whether or
7 not an oath is administered, if the participant
8 knowingly withholds information or misleads the
9 investigators or the judges it shall constitute a
10 violation". The supplement to the rule could read:
11 "Investigators may willfully deceive or mislead
12 licensees". Somehow that supplement seems unlikely.
13 All of which supports the conclusion that willful
14 deceit ought not to be a part of the discharge of
15 Commission duty.
16 There is no need for rhetoric, surveys
17 or opinion polls. Declining attendance and mutuel
18 handles are the barometer that triggers the alarm.
19 Doping horses is an anathema or for those who prefer,
20 accursed. Standardbred racing has two alternatives,
21 clean up doping or play to empty houses. The long
22 suffering public has had enough. That eliminating
23 drugs from horse racing is necessary is axiomatic but
24 never at the expense of Commission integrity.
Patrick Hudon - March 21, 2007 - 17
1 Offenders should be identified and dealt with according
2 to the measure of the wrongdoing but only in accordance
3 with principles of honesty, integrity and social
4 responsibility which are required of the Racing
5 Commission.
6 Although in the administrative setting the
7 Panel is not bound by strict legal standards,
8 nonetheless, those standards are sound and
9 instructive. The requirements of natural justice will
10 depend on such as the circumstances of the case, the
11 nature of the inquiry, the rules of the tribunal and
12 the subject matter. The dominant circumstance of this
13 case is that although Mr. Hudon's liberty interest is
14 not at stake in the sense of penal servitude, his
15 ability to earn a living in a regulatory industry is
16 at issue. A high standard of justice is required
17 when the right to continue in one's profession or
18 employment is at stake. Kane v. U.B.C. (1980)
19 S.C.J No. 32 S.C.C.
20 The gravity of the issue renders applicable
21 the standard identified in COATS and Registrar of Motor
22 Vehicle Dealers (1998) 1988 CanLII 4555 (ON HCJ), 65 O.R. (2nd) 526 which adopts
23 Bernstein and College of Physicians and Surgeons on
24 this issue: "Nothing short of clear and convincing
25 proof based upon cogent evidence will justify an
26 administrative tribunal in revoking a license to
Patrick Hudon - March 21, 2007 - 18
1 practice medicine or to gain a livelihood in business".
2 It has not been disclosed whether the
3 statement attributed to Mr. Hudon comprises an
4 essential element of proof of his claimed breach of the
5 rules. If so, there may be an elevated burden of proof
6 of admissibility beyond the mere preponderance of
7 probability.
8 Simply in passing and pure obiter I note the
9 following. It is argued that the statement was free of
10 inducement and therefore voluntary and so admissible.
11 If it were to be found that the true nature of the
12 conduct of the interview was to present opportunity for
13 a consequence-free statement that immunity, expressed
14 or implied, could be an inducement. Continuing in the
15 obiter comments, by commonlaw, statements made by an
16 accused person under compulsion of law were not
17 inadmissale because of the compulsion alone. R. v.
18 Fitzpatrick 1995 CanLII 44 (SCC), [1995] 4 S.C.R. 154. It is noted that the
19 state compulsion is somewhat muted by Mr. Hudon's
20 voluntary participation and thereby consent to be
21 governed by the rules of a regulated enterprise.
22 However, conscription of an individual to generate
23 self-incriminating evidence under adversarial
25 compulsion by the state may lead to consideration of
26 self-incrimination, one of the principles of
Patrick Hudon - March 21, 2007 - 19
1 fundamental justice protected by Section 7 of the
2 Charter. In that context, issues of use immunity and
3 derivative use immunity arise.
4 Currently the extent of the evidence, other
5 than the statement, is undisclosed so the result of the
6 exclusion is unknown. If the exclusion results in
7 dismissal of the charge which otherwise might have been
8 proven two results flow.
9 Firstly, on principle it is of fundamental
10 importance that the statutory standard imposed on the
11 Commission has been maintained: "To exercise its powers
12 and perform its duties in the public interest and in
13 accordance with principles of honesty, integrity and
15 social responsibility".
16 Secondly, on a pragmatic level the licensee
17 back from the brink of his cold and silent professional
18 grave may thereby be instantly rehabilitated - not
19 given the opportunity for rehabilitation over a ten
20 year interval. Rehabilitation is a universal good,
21 much to be desired.
22 The challenged statement, even if excluded from
23 evidence, would constitute an incriminating
24 admission which would warrant further scrutiny by
25 investigators. That would constitute stern motivation
26 not to offend in the future.
Patrick Hudon - March 21, 2007 - 20
1 In this case the undisclosed adversarial
2 context was so prominent and energizing and the
3 unperceived consequence so significant that there would
4 be a profound breach of the principles of natural
5 justice if this statement were to be included in evidence.
6 There would have been a total failure of that high
7 standard of justice identified in Kane and U.B.C.
8 On the basis of that breach of principles of natural
9 justice, in my view, the statement should not be
10 received in evidence.
11 The record must disclose that I neither
12 find nor suggest knowing and willful wrongdoing by
13 Sergeant Schandlen. The point in issue is a fine one.
14 The conduct may be within the ordinary ambit of
15 criminal investigation. I am not called upon either to
16 comment or make a decision in that matter.
17 In the administrative setting the issue has
18 the capacity to induce different points of view. Our
19 view points differ. As this matter unravels Sergeant
20 Schandlen may well found to have been correct. No
21 precedents on the issue were cited. In my short
22 exposure to Commission affairs none have come to my
23 attention. Absent authority, resort must be had to
24 analysis and so I have proceeded. This is my first ORC
25 Hearing as chairperson or otherwise, against a background
26 of being a spectator at one Commission meeting and a
Patrick Hudon - March 21, 2007 - 21
1 Commission member at a second meeting. As well, I
2 have read a mass of material. These are my views. If
3 they are wrong they should be corrected by Judicial
4Review. Thank you very much.
5 Well, excuse me, I understand that my
6 associate Commissioner Brennan agrees with the ruling
7 and the reasons. I understand that Commissioner
8 Garthson wishes to be heard.
9 MS. GARTHSON: Thank you, Mr. Donnelly. I
10 find myself in disagreement that there was any willful
11 attempt to deceive. I find that Detective Sergeant
12 Schandlen told Mr. Hudon that he was investigating on
13 behalf of the Ontario Racing Commission as well as in a
14 criminal matter and that it would be reasonable for him
15 to expect that someone holding a trainer's license in
16 this highly regulated industry; in other words a
17 position of very high responsibility, would understand
18 the following points. That he could have asked to
19 reschedule the meeting until after racing and he did
20 not testify that he made any such request. That Mr.
21 Hudon could have asked to reschedule until he had
22 sought legal advice or even accompaniment by a friend.
23 That Mr. Hudon should have realized that he could have
24 been in trouble with the Ontario Racing Commission
Patrick Hudon - March 21, 2007 - 22
1 given that his name had come up in relation to an
2 investigation into illegal drugs being used on race
3 horses, particularly given that in the past few years
4 there have been numerous other penalties applied in the
5 industry for illegal drugs being given to race horses
6 and they have been increasingly severe.
7 Although I understand that Mr. Hudon may
8 have felt misled I cannot accept that a reasonable
9 trainer in his position would have thought that there
10 was no chance he could be in trouble as a result of
11 giving a statement to an investigator on an
12 investigation of illegal drugs, both criminal and
13 regulatory, and I believe that that was made clear to
14 him.
15 However, Mr. Hudon has obvious difficulties
16 in communicating and we have only the evidence of his
17 conduct in this hearing room before us since there is
18 no tape to confirm or contradict the conduct during the
19 actual interview. To interview him without notice
20 during an evening when his horses were racing seems to
21 me to be a failure to accommodate the unique
22 circumstances. There was no legal requirement to
23 provide that extra accommodation or to suggest to him
24 that he might wish to seek advice but we do expect all
25 Ontario Racing Commission staff to exemplify the
Patrick Hudon - March 21, 2007 - 23
1 standards in Section 6 of the Act of honesty, integrity
2 and social responsibility. Difficulty in speaking and
3 dyslexia are not necessarily any indication of
4 cognitive difficult. However, they are a red flag that
5 it is important to check more thoroughly than usual on
6 whether or not there is full understanding of the
7 potential consequences of the interview. Mr. Hudon
8 freely admitted to us that his head injury in 2002
9 affected his ability to understand and remember and I
10 have to accept that he would have given that same
11 explanation to the detective sergeant if he had been so
12 asked.
13 In this case I believe that the detective
14 sergeant should have give extra explanation and
15 arranged to meet at a time when there was no pressure
16 of racing and when there had at least been time to
17 reflect on how Mr. Hudon would deal with his statutory
18 compulsion to answer the questions truthfully. I have
19 been persuaded that he could have chosen to accept a
20 penalty for refusing to cooperate could reflect, even
21 though that penalty might have been equally harsh.
22 That information is not before me.
23 I believe it would be good practice to
24 consider not interviewing any trainer during a race
25 evening in which his or her horses are racing because
Patrick Hudon - March 21, 2007 - 24
1 that pressure could lead to misunderstanding and lack
2 of concentration. I therefore concur with the other
3 members of the panel that the statement is inadmissable
4 but wish to record the different reasoning that I had
5 to reach that conclusion. Thank you, Mr. Chair.
6 MR. CHAIRMAN: Thank you. Counsel?
7 MR. VAN NIEJENHUIS: Thank you, Mr. Chair.
8 Might I ask for an adjournment for perhaps fifteen
9 minutes or so to consider the impact this has on the
10 case?
11 MR. CHAIRMAN: Fifteen minutes please.
12 Commissioner Garthson has indicated that we have been
13 given these packages again, which we haven't seen or
14 haven't opened, and from my recollection of the
15 submissions at tab 4 is the statement. Should we, as a
16 matter of efficiency, have that removed during the
17 fifteen minutes? Well, you have other matters to worry
18 about.
19 MR. VAN NIEJENHUIS: Yes. I ask to consider
20 how to deal with that logistical side as well during
21 the fifteen minutes.
22 MR. CHAIRMAN: Thank you.
23 MR. VAN NIEJENHUIS: Thank you.
24 SHORT RECESS
25 Upon Resuming...
Patrick Hudon - March 21, 2007 - 25
1 MR. FINES: All rise please. This hearing
2 before the Ontario Racing Commission is back in
3 session.
4 MR. CHAIRMAN: Proceed.
5 MR. VAN NIEJENHUIS: Mr. Chair, on having
6 had an opportunity to evaluate the anticipated evidence
7 in the proceeding it is my conclusion that there is no
8 reasonable prospect of success, to use the language
9 used in the criminal law by way of analogy, and
10 therefore on behalf of the Director I won't be
11 tendering any further evidence on the hearing.
12 The wrinkle in terms of procedure is that
13 the Director has made his order and in some sense I
14 appear as counsel defending that order on behalf of the
15 Administration. The panel now has jurisdiction after
16 holding a hearing, after convening this hearing, under
17 Section 22.6 to either confirm to set aside the
18 proposed order or further to direct the Director to
19 take the action the panel considers ought to be taken
20 in view of the purposes of the Act.
21 In other words, it is the panel's decision
22 as to precisely what happens with the existing order of
23 immediate suspension and proposed order and I
24 anticipate my friend will ask you to order then that
25 the order of immediate suspension and the proposed
Patrick Hudon - March 21, 2007 - 26
1 order be rejected and set aside, quashed, whichever
2 language he chooses to use and as a result the
3 Administration will consent or not oppose my friend's
4 request in that regard.
5 The only item that I wish to flag in that
6 because there is an unusual regulatory structure here
7 that is different from withdrawing a charge or staying
8 a charge. I just want it to be clear that as the Chair
9 pointed out, and I don't mean to necessarily suggest
10 that any decision has been taken about this or even
11 thought about but I want to avoid a situation where
12 withdrawing the charge precludes either later
13 addressing Mr. Hudon in relation to further and better
14 evidence or by way of Judicial Review. Should any of
15 that occur I just want to make it clear that the
16 Administration's consensus to terminate this order are
17 not to a finding that Mr. Hudon didn't certainly not
18 possess EPO. That would bar us or bar the
19 Administration and its investigators from conducting
20 appropriate further inquiries, if any.
21 So I will leave it to my friend to request
22 the particular order he would like you to make in
23 relation to the proposed order. I hope that is not too
24 muddy but in short, the Administration is not going to
25 be putting in any further evidence and won't be asking
Patrick Hudon - March 21, 2007 - 27
1 for the findings originally sought.
2 MR. CHAIRMAN: Counsel?
3 MR. STERNBERG: Yes. Mr. Chair, pursuant to
4 Section 22.6(a) based on no evidence being presented I
5 would ask that the panel set aside the proposed order
6 and the immediate suspension of Mr. Hudon and also set
7 aside the penalty of $100,000.00 that was imposed and
8 order immediate reinstatement of Mr. Hudon's license as
9 a trainer and driver.
10 MR. CHAIRMAN: Thank you.
11 MR. VAN NIEJENHUIS: I have no difficulty
12 with the way my friend has asked for relief.
13 MR. CHAIRMAN: So I fully understand what
14 you are asking us to do, Mr. Van Niejenhuis ...
15 MR. VAN NIEJENHUIS: I think the way my
16 friend has just stated the relief disposes of the
17 concerns that were lingering as to how to frame it. In
18 other words, the panel makes an order setting aside the
19 proposed order and the immediate suspension and the
20 fine that was imposed. My concern was that given that
21 there is no evidence from either side that there not be
22 a finding that, that it be clear that it is our
23 position that there is no finding, as to what actually
24 did occur, given that there is no evidence.
25 MR. CHAIRMAN: Thank you. We will take ten
Patrick Hudon - March 21, 2007 - 28
1 minutes. Thank you very much.
2 SHORT RECESS
3 Upon Resuming...
4 MR. FINES: All rise please. This hearing
5 before the Ontario Racing Commission is back in
6 session.
7 MR. CHAIRMAN: Please be seated. Upon the
8 ruling being made or released on the voire dire counsel
9 for the Administration advised that no further
10 evidence; that amounts to no evidence, will be offered.
11 Mr. Sternberg then requested that the suspension order
12 and the fine be set aside and counsel for the
13 Administration I understand doesn't oppose that.
14 Accordingly, firstly, the immediate suspension order of
15 January 25th, 2007 is set aside, as is the notice of
16 proposed suspension. The suspension itself imposed
17 under the order of immediate suspension is vacated or
18 set aside. There will be an order reinstating Mr.
19 Hudon's level of privileges to their status prior to
20 that order. The $100,000.00 fine is rescinded and
21 cancelled.
22 Now firstly, counsel, does that address your
23 concern?
24 MR. STERNBERG: Yes, it does.
25 MR. CHAIRMAN: Is there anything further
26 required or any amendment?
Patrick Hudon - March 21, 2007 - 29
1 MR. STERNBERG: No, I don't think so, sir.
2 MR. CHAIRMAN: Counsel for the
3 Administration?
4 MR. VAN NIEJENHUIS: I agree, it deals with
5 everything I believe.
6 MR. CHAIRMAN: Is there anything further,
7 counsel?
8 MR. STERNBERG: No, sir.
9 MR. VAN NIEJENHUIS: Nothing further, Mr.
10 Chair. Thank you very much.
CERTIFIED CORRECT:____________________________
RAYMOND P. MACDONALD, B.A., CVR
Commissioner of Oaths
TORONTO COURT REPORTERS - TORONTO, ONTARIO