DRAFT RULING NUMBER COM TB 011/2008
COMMISSION HEARING TORONTO, ONTARIO – NOVEMBER 24 & 2
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER IN THE APPEAL OF
THOROUGHBRED LICENSEE GARY PARKIN
BY ORDER OF THE COMMISSION
John L. Blakney
Executive Director
REASONS FOR DECISION
Dissenting
- The foundation for the Administration case is:
- The presence of Neutrophils bespeaks a time interval of at least fifteen minutes between trauma (injection) and death
- Death followed the euthanizing injections by three minutes or less
- A for-------- a third injection must have preceded the euthanizing injection
- Mr. Parkin in terms of exclusive opportunity must have administered the third injection
- Alternatively absent a due diligence defence, Mr. Parkin was in breach of his obligation under the trainer responsibility rule.
That structure stands or falls upon proof of the time of death by evidence cogent, clear and compelling. That standard of proof is applicable because this item of evidence (time of death) is an essential element of the Administration’s allegation of wrongdoing.
This dissent is founded upon assessment of weight properly attributable to:
Gary Parkin’s denial of wrongdoing
Evidence bearing on the time of death
The majority reasons adequately deal with the evidence. No supplement is required.
Before turning to specific nothing is lost by commenting on the underlying principles:
- The burden of proof
is upon the Administration.
- The standard of proof
is upon a balance of probabilities.
- The evidental burden
Escalates with the gravity of the issue. That is Mr. Parkin’s entitlement to a licence to continue his life’s work in horse racing. That evidental burden requites proof by cogent evidence that is clear and compelling.
The fundamental purpose of a trial Panel is to find the facts.
Evidence becomes fact for the purpose of the hearing only when accepted by the Panel as truthful and as accurate
The assessment of evidence for truthfulness and accuracy requires the application of common sense to the factual issue in the context of the entire evidence. Trier of fact then attributes appropriate weight to aspects of the evidence.
- The application of circumstantial evidence
Circumstantial evidence is proof of the fact in issue by rational inference drawn from other proven facts.
No witness claims to have observed Mr. Parkin injecting the horse. Mr. Parkin made no admission of an injection. Lacking such direct evidence, the Administration must prove its case by circumstantial evidence. The criminal law rule relating to circumstantial evidence is instructive. That rule is, circumstantial evidence must be consistent with the guilt of the accused and inconsistent with any other rational conclusion.
On this hearing there was evidence which could support a finding of wrongdoing either by Mr. Parkin or for which he is responsible under the trainer responsibility rule. However, it my view an assessment of that evidence discloses that it does not meet the standard of cogent, clear and compelling.
The starting point is Mr. Parkin’s denial of wrongdoing. If that evidence is accepted, the Administration fails. If that evidence is not accepted but nonetheless raises doubt to the extent of preventing the Administration from meeting its required standard of proof, then the Administration fails.
In terms of accepting or rejecting a person’s testimony relating to a critical issue, reasons for that acceptance or rejection should be founded on the evidence and articulated by the trier of fact. That is, to simply say “Mr. Parkin’s evidence under oath is rejected” falls short of the standard. He should, after hearing or reading the Reasons for Decision, know why his evidence on oath was found unsatisfactory. Whether he agrees is immaterial. That he has the opportunity to know is a fundamental component of natural justice.
Mr. Parkin’s testimony is subject to testing for internal consistency and for external consistence in terms of entire evidence.
In testing Mr. Parkin’s evidence for internal consistency, reference may be had fairly to his background. At age 69, for over fifty years he has been licensed in Ontario and other racing jurisdictions in Canada and the United States. Over the long interval, he has had but two minor rule infractions. A finding of an illegal injection would be contrary to his long-established course of conduct.
Further, in terms of internal consistency, his evidence was candid, responsive and free of contradiction.
For whatever value demeanour may have, Mr. Parkin passed that test. In delivery, he appeared candid and forthright. He offered to support his veracity by an oath on his son’s grave. This was seen neither as bravado nor embellishment, rather it presented as a genuine last resort. He spoke in powerful terms of the anguish and hardship of this experience.
Evidence of Mr. Parkin’s good character was called. Such evidence can be of minimal consequence on the theory that rare indeed would be the person unable to muster up a few pals to speak well of him/her. However, this character evidence transcended that category. The character witnesses presented well, offering testimony of a man of good character who was a good caretaker for his horses.
If accepted, character evidence has the capacity to:
render it unlikely that the person would engage in wrongdoing
render it more likely that his evidence would be truthful and reliable
Evidence of Mr. Parkin’s good character operated on both of these positive levels.
Turning to the issue of a potential motive for wrongdoing, “Espresso Gal’s” training regime was four to six weeks from racing. No motive was disclosed by the evidence as to why in his modest financial position, Mr. Parkin would embark upon some illicit drug experiment or program at this stage. To attribute improper motive would be speculation or conjecture unsupported by the evidence.
Testing Mr. Parkin’s evidence for external consistency predominantly involves consideration of the scientific evidence and the time of death evidence. Clearly, powerful evidence on these issues contrary to Mr. Parkin’s statements could precipitate rejection of his testimony of denial of wrongdoing.
Of limited value but nonetheless a part of the whole and supportive of Mr. Parkin’s position, the Administration on two occasions sought corroborating evidence against Mr. Parkin. Each time it failed.
Blood and ocular fluid from Espresso Gal were tested at the Racing Forensics Lab in Toronto and at the Equine Toxicology and Research Lab for the Pennsylvania Department of Agriculture at the University of Pennsylvania. Tests were for the presence of Aminorex Ephedrine Nefopam, 4 Ohimbine Black Ice (mixed Dihydroergocoids), Cialis (Tradalifil), Viagra (Sildenafil), Levitra (Vardenafil) and Bromocryptine. None of these was detected in either the blood or fluid.
It may be contended that the Administration tested for the wrong substances. Undoubtedly, the Administration tested for substances thought to be he mosey probable. Furthermore, the general impression left by Mr. Parkin and the size and quality of his stable was that he did not represent the cutting in the horse racing drug war. He seems an unlikely candidate to be introducing some rare exotic and undetectable substance.
The second quest by the Administration for corroborating evidence was to conduct out-of-competition drug testing on the balance of Mr. Parkin’s stable. That balance consisted entirely of “where eagles meet”. Purchase price, $1,000. Test results, negative.
The Notice of Proposed Order issued May 6, 2008, five days short of nine months following the death of Espresso Gal, investigative information to that date (later found to be erroneous) was that the horse was euthaznised by a single injection (paragraph 6 of the Notice).
The necropsy (autopsy on an animal) report revealed two recent prominent lesions (Ex. 1, tab 5, para #2). This second puncture wound thought to be unrelated to the euthanization had the appearance of placing Mr. Parkin in the “guilty” box with a ribbon tied around it. The horse was in his sole care as trainer with no veterinarian, no groom or stable hand. The potential candidate for administration of the injection numbered one, that being Mr. Parkin.
The falsity of that hypothesis becomes known at a late date. So far as the evidence disclosed, it emerged when the euthanizing veterinarian, Dr. Banks appeared at the hearing to give evidence.
In the course of her testimony, Dr. Banks disclosed that she euthanized the horse with two syringes each of 60 ml of Euthansol. In so dong, she injected once for each syringe – total, two injections.
That misconception of only one euthanizing injection lead the investigation down a simplistic but wrong trail. Thereby the investigation was deflected from pursuit of the issue of a third injection.
Dr. McEwen who performed the necropsy made reference to two prominent euthanizing injection lesions. When asked by a Panel member to locate a third injection (presumably attributable to Mr. Parkin), she sated that to do so would be speculative.
Given the investigative significance attributed to the Neutrophil evidence, it must have been apparent that the circumstances and the time of death were of vital importance. Indeed, investigative attention should have been riveted to the time of death issue by this caveat in Dr. McEwan’s necropsy report dated December 20, 2007:
“I think it is important to ask the veterinarian that euthanized the horse how long it took it to die. This may help with a temporal scenario in this case.”
Dr. Banks was first contacted by investigators on January 30, 2008. This delay provided ample time for memory to dissipate. In support of that observation while testifying, Dr. Banks described her memory of the event as “hazy”.
That first contact was by telephone. The exchange was abrasive. Dr. Banks regarded this horse-death as routine in terms of racetrack horse deaths (120-150/yr). She considered the matter as closed by he negative results of the blood tests and no statement was taken from her. No note contemporaneous with the event had been made to capture and preserve her recollection of events while that memory was still fresh.
On February 1, 2008, Dr. Banks responded to the telephone call by sending a letter to investigations describing her participation as follows:
“there was blood from her right ear, horizontal mustangmus, her hind legs appeared to be paralysed – the decision was made to euthanize the horse. 120 mls of Euthansol was administered intravenously.”
Following receipt of the letter, no further statement was taken, no interview was conducted and so the situation remained until the hearing proceeded.
So far as is disclosed by the evidence, Dr. Banks was first directed to turn her mind back to the details of this event when she arrived to testify - fifteen months after what she regarded as a routine event.
This background linked with her assertion of a “hazy” memory bears on the weight to be attributed to her estimates of time lapse.
Regarding that estimate, no one was operating a stopwatch. The action on the rack was engaging. There was an element of risk or danger with the horse thrashing about. The welfare of the horse was a vital concern.
The evidence was that following injection normally death occurs in 1½ to 3 minutes. Two variables may change that timeline. Firstly, the cardiovascular condition of the horse. Secondly, how well the injection is made into the vein.
The question becomes – is the Panel hearing what actually happened? Or what was expected to happen?
The time of death was not noted with the precision that would enable the declaration “now is the moment migration of neutrophils stops.”
To this stage in the analysis, the time of death evidenced falls far short of being compelling. Its persuasive force is further gravely eroded by the “neutrophil rich” evidence which follows.
Confronted with having to prove a third injection, the Administration turned to the two focal pinpoint intimal lesions in the left carotid artery which were unrelated to the euthanizing injections. Either of these lesions became the candidate to be the third injection.
This approach was based on Dr. McEwen’s evidence that the body’s first response to injury was neutrophils which migrate to the trauma site. The migration starts (about) fifteen minutes following the trauma and ends with death.
Based on the presence of neutrophils at the trauma site, Dr. McEwen concluded that the injury causing the severe haemorrhage preceded death by at least fifteen minutes. That opinion was the first plank in the Administration’s case. The second plank was Dr. Banks’ evidence that Espresso Gal died within three minutes of the euthanizing injections. Coupling those two plans there must have been a third injection (by or the responsibility of Mr. Parkin).
Both of these planks mist be regarded with grave suspicion. There was acute haemorrhage at the site of the euthanizing injection in the left jugular vein. (Histology Report December 20, 2007)
The Histology Report describes that site as “neutrophil rich”. The report does not mention neutrophils in relation to the left carotid artery. It simply states “left carotid artery – special stains (pas peric’s iron) are negative.”
Two questions arise:
Why no mention of neutrophils at the alleged third injection site in the left carotid artery?
If the euthanizing injection preceded death by three minutes or less, how did that site become neutrophil rich in three minutes or less? Are we advised to accept the response – “coincidence, all three injections were at the same site?”
- That “neutrophil rich” evidence raises significant doubt about the time of death. That time of death evidence is already subject because:
It is an estimate not a measured time interval.
The estimate was made in engaging and emergent circumstances.
There was no contemporaneous record made as to the time or death.
Dr. Banks regarded the incident as routine within terms of life around the racetrack.
Mr. Parkin was not her client. There was no reason for her to assign importance to that time element.
In general terms estimates of time are notoriously unreliable.
The time interval adequate to enable the neutrophil migration is inextricably connected with the time of death evidence. That confers critical importance on Dr. Banks’ evidence about the circumstances and the actual time of death. Surely that evidence is the heart and soul of the prosecution case. Does that status require that the time be carefully ascertained and preserved? Does it further require that evidence of that time be critically appraised and assessed?
Promptly investigated, the time of death evidence by Dr. Banks had the potential to be persuasive to the extent of “compelling”.
The investigative decision not to promptly interview Dr. Banks and thereby ensure and preserve accurate fresh recollection deprived her evidence of the convincing force of authentic detailed memory.
The Panel is asked on this absolutely vital issue to accept as cogent, clear and compelling a hazy recollection of a routine event first retrieved from memory fifteen months down the road. It would be wrong to attempt to cure this deficiency by conferring unproven reliability.
The evidence of unusual and distressed behaviour by Espresso Gal leading up to her fall adds nothing to the Administration case. On the evidence that behaviour is equally consistent with innocent explanation (introduction of the tongue-tie and blinkers and delay in getting to the track after the horse had been fully tacked).
The evidence of 38 lesions from injections in the jugular veins attracts attention but upon examination does not advance the Administration’s case. The injection sites have no sinister connotation. The evidence detailed many potential legitimate reasons for such injections one being that Espresso Gal did race on Lasix (a bleeding inhibitor). In this context it is noted the horse had seventeen lifetime starts before being purchased by Mr. Parkin. He did not race it. After the purchase he had the horse at Hastings Park, B.C. for about ten days, trucked it to Fort Erie over the course of fourteen days and then was stabled at Fort Erie for about 10 days prior to the fatal fall.
The review of Mr. Parkin’s testimony for external consistency produced no significant challenge to his credibility or reliability.
The cumulative force of the crippled time of death evidence, the rich neutrophil supply at the euthanizing sites and the quality of Mr. Parkin’s denial sand in the way of the Administration’s burden of proof.
I would allow the appeal cancelling fine and license restriction.
To state the obvious, in matters relating to serious issues such as licensing full investigation and a prompt hearing date should be the standard. Mr. Parkin’s licence was withheld from April 23, 2008. This hearing proceeded November 24 (a racing season). Mr. Parkin subsisted on the OAS Pension, sale of some equipment and odd jobs.
The following tenets are abundantly supported by the evidence and considered cumulatively are antithetical to the Administration case.
The abundant haemorrhage described in the necropsy report is at the two prominent injection sites in the left jugular vein.
These injections are seen to have been close proximity (Ex. 1, Tab 5, Para 2)
Dr. McEwen agrees that those two injection lesions are consistent with being caused by the euthanasol injections (Transcript Q 66)
The “neutrophil rich” exudate described in the necropsy report is at that haemorrhage site.
The essential thrust of Dr. McEwen’s evidence is “what I can say from my finding histologically is that there is tissue evidence to suggest that the horse has sustained a sharp force injury to the left jugular vein in the left area at lease 15 minutes before it died.”
- The overwhelming preponderance of evidence is that those twin injection lesions were caused by the administration of euthanasol by Dr. Victoria Banks. The inescapable conclusion is that the horse lived about fifteen minutes (or longer) following the fatal injections. That being so, the Administration case collapses.
DATED this 2nd day of December 2008.
James Donnelly
ViceChair