STANDARDBRED LICENSEE TREVOR HENRY

AMENDED STANDARDBRED RULING

Standardbred driver and owner Trevor Henry (Licence # H38912) appealed Ruling SB 38655 wherein the Judges ruled that a penalty of six months full driving suspension and a fine of $5,000.00 was appropriate for cutting the horse “Lord Luck” in the 4th race at Grand River Raceway on July 11, 2008.

On August 12, 2008, a Panel of the Ontario Racing Commission consisting of Chair Rod Seiling, Vice-Chair James Donnelly and Commissioner Brenda Walker convened to hear the appeal.

Maureen Harquail appeared as Counsel for the Administration. Ross Nicholson appeared as Counsel for Trevor Henry.

Upon hearing the evidence of Dr. Patrick Meyers, DVM, Judge Rick Rier, and Trevor Henry, and upon reviewing the videotape, photographs and exhibits filed, and upon hearing the submissions of Counsel for the Administration and Counsel for Trevor Henry, the Panel ordered the following:

i. Six (6) months full driving suspension with four (4) months to be stayed;

ii. Trevor Henry shall serve a 60-day full driving suspension from August 6, 2008 up to and including October 4, 2008;

iii. A fine of $5000.00 shall be payable by Trevor Henry;

iv. Upon completion of the 60-day full driving suspension, Trevor Henry shall be required to drive with both hands in their respective hand holders for a period of six (6) months commencing on October 5, 2008 up to and including April 5, 2009;

v. Trevor Henry shall be on probation for a period of two (2) years from October 5, 2008 to October 5, 2010 whereby if he incurs any whipping violations during that time period the remaining four (4) months of his suspension will automatically come into force and will be added to whatever penalties the Judges may impose at that time.

The Panel’s Reasons for Decision is attached to this Ruling.

DATED this 20th day of August 2008.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

Standardbred Driver, Trainer, Owner, Trevor Henry, appealed the decision of the Judges, SB 38655 (Exhibit 1, tab 2), dated July 31, 2008, wherein he was suspended from driving for six months and fined $5,000. On August 1, 2008, Mr. Henry was denied a stay by the Director, SB Ruling #118/2008.

Background

Maureen Harquail, legal Counsel for the Administration and Ross Nicholson, legal Counsel for the appellant, Mr. Henry, agreed that the cut on the horse, “Lord Luck” on his sheath was the result of conduct by Mr. Henry while he was driving the horse during the 4th race at Grand River Raceway on July 11, 2008. The issue for the Panel, therefore, was the wound via deliberate or inadvertent action by the appellant and the appropriateness of the penalty issued by the Judges.
Mr. Henry requested a stay of his penalty (Exhibit 1, tab7) on July 30, 2008 stating that the penalty was too long on a first offence. On August 1, 2008, the Director of the Ontario Racing Commission (ORC), John Blakney denied that request, SB Ruling # 118/2008 (Exhibit 1, tab 8).
The Judges were notified of the condition of the horse following the race by CTI Inspector Cindy Skinner-Wilson as the horse was selected to be post race tested. Ms. Wilson observed as per her report (Exhibit 1, tab 12) the horse, “Lord Luck’s” testicles/scrotum were red with blood.
Dr. Patrick Meyers, ORC vet at the track was called to the test barn to examine “Lord Luck”. As per his report (Exhibit 1, tab 13) he found a 2 to 3 cm. cut on the right side of the sheath (testicles). He testified that the cut was fresh, there was a fair amount of blood involved, there would be a level of pain the horse would be experiencing from it and that the cut could have been caused by a whip. Attached to this exhibit were five graphic coloured pictures of the cut that substantiated Dr. Meyers’ description.
ORC Judge Richard Rier, as the acting Senior Judge, confirmed that the horse, “Lord Luck”, did race at Grand River Raceway on July 11, 2008 in the 4th race as the number one programmed horse with Trevor Henry as its driver. In reviewing the race tape he pointed out the Mr. Henry could be observed whipping “Lord Luck” twice coming around the final turn, another three times during the stretch run and having his whip between the horse’s hind rear legs. He testified that the Judges observed live from the stand during the race Mr. Henry’s whip between the horse’s hind legs. Judge Rier speculated that Mr. Henry might have cut the horse when he appeared to have whipped the horse below the sulky shafts. It is a violation of the rules to whip a horse below the shafts of a sulky, SB Rule # 22.23.01 (b). Tab 14 of Exhibit 1, the “win” picture of Mr. Henry aboard “Lord Luck” clearly showed Mr. Henry’s whip between Lord Luck’s” hind legs, a violation of the rules of standardbred racing which Mr. Henry acknowledged.
The Judges had two meetings with Mr. Henry following the incident of July 11th at Grand River involving “Lord Luck”. Mr. Henry was not shown the win photos (Exhibit 1, tab 14), as they were not available at that time. He waived his right to have legal counsel present. Due process and disclosure were followed with the decision made at the second meeting held at Hanover Raceway on July 30, 2008. The Judges found him guilty of the following SB Rule infractions:

6.20 (b) Misconduct prejudicial to the best interests of racing

22.22 Did use his whip in a brutal and indiscriminate matter

22.23.03 Did cut the horse “Lord Luck” with his whip based on the veterinarian report

Mr. Henry has been licensed by the ORC as a driver for eighteen years and while he holds a trainer’s license as well, testified his sole source of income is from driving. Over the past number of years he claimed to be in the top ten drivers on the Ontario “B” circuit and in 2007 earned $170,000 as a driver and was on his way to an even better year in 2008.
Horses become immune to whipping according to Mr. Henry, and that was why he could be seen to be pushing the horse “Lord Luck’s” tail during the stretch run on the video to encourage him to run faster. It was his claim that his whip inadvertently came into the middle of the horse’s hind legs when he was pushing on the horse’s tail and that he was unaware of this until the Judges showed him the video. He also testified that he was unaware the horse was cut until Judge Rier notified him about two weeks after the race.
Mr. Henry made an unsubstantiated claim that Judge Rier told him at this initial notice not to be concerned, that the maximum penalty would be fifteen days and that he could get a stay and serve it during the winter. Mr. Nicholson argued that the penalty imposed by the Judges was not “in sinc” with the Commission’s own rules for whipping and suggested that the penalty be reduced to thirty to forty five days and a fine of $5,000. Ms. Harquail countered that a penalty of four to six months with a $5,000 fine would be appropriate given the serious nature of the act.
Mr. Henry has incurred numerous whipping rule violations as per his Standardbred Canada record (Exhibit 1, tab 17) and summarized by the Judges in their reasons for decision in a memo to the Director, (Exhibit 1, tab 5). He testified that he had recognized that he had a problem with his driving re whipping and had changed. His record with four separate whipping infractions since February of this year raises some doubt on his testimony in that regard. That summary indicated Mr. Henry has had eighty-seven whipping rule violations since 1989, forty-one since 2002, thirty-two since 2003, and nine in the preceding twelve months with the July 11th incident the tenth. His own counsel, Mr. Nicholson, termed it “abysmal”.
The ORC has had an ongoing initiative to educate drivers about the importance of observing the various rules of racing regarding whipping. Mr. Henry acknowledged he attended at least one of those sessions conducted by the Judges at racetracks earlier this year at Western Fair Raceway.

Decision

After carefully considering the testimony and reviewing the evidence, the Panel denies Mr. Henry’s appeal. In as much as this Commission supports the principle of rehabilitation, the Panel stays the penalty for driving to a period of two months and leaves the fine of $5,000 intact. Furthermore, Mr. Henry must, once his suspension expires drive with both hands in their respective hand holders for a period of six months. The Panel is offering Mr. Henry this opportunity to rehabilitate himself and urges him to take advantage. Following the expiration of his suspension, Mr. Henry will be put on probation for a period of two years. If he incurs any whipping violations during that time period the remaining four months of his suspension will automatically come into force and will be added to whatever penalties the Judges may impose at that time.