Ontario Racing Commission

TB

RULING NUMBER COM SB 005/2008

COMMISSION HEARING TORONTO, ONTARIO – JANUARY 30, 2008

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

AND IN THE MATTER OF THE APPEAL OF

STANDARDBRED LICENSEE DENNIS (JERRY) MOFFATT

The Director ordered an immediate suspension of standardbred licensee Dennis Moffatt's licenses pursuant to Section 23 of the Racing Commission Act, 2000 (the "Act"), and a proposed Order to suspend Dennis Moffatt's licenses for a period of ten years pursuant to Sections 21 and 22 of the Act and to impose a fine of $100,000.00. Dennis Moffatt requested a hearing pursuant to Section 22 of the Act.

On January 30, 2008, a Panel of the Commission consisting of Chair Rod Seiling, Vice-Chair Hon. James Donnelly and Commissioner David Gorman, convened to hold the hearing. Brendan Van Niejenhuis and Aaron Dantowitz appeared as counsel to the Administration and Daniel Scott appeared as counsel for Dennis Moffatt.

On hearing the evidence of Dr. Robert McKenzie, Dr. Cornelius Uboh, Dennis Moffatt and Pauline Moffatt, and on reading the Exhibits, filed, and on reading the written submissions of counsel, filed, the Panel ordered as follows:

The Director's proposed Order is varied to provide:

1. A 10-year full suspension from December 21, 2006; and

2. A fine of $10,000.

The Panel gave written reasons for its decision, a copy of which is attached to this Ruling.

DATED this 19th day of March 2008.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

1. This hearing has been requested by Standardbred licensee Dennis (Jerry) Moffatt (as is his right under Rule 22 (2)). At issue are the Executive Director’s Order of Immediate Suspension and Notice of Proposed Order of December 21, 2006. The Proposed Order is for a ten-year suspension and a fine of $100,000. The Director’s authority is found in Sections 21, 22 and 23 of the Racing Commission Act (2000).

2. Pursuant to Notice of Hearing dated January 7, 2008, this Panel consisting of Chair Rod Seiling, Vice Chair Hon. James Donnelly and Commissioner David Gorman, convened on January 30, 2008. Brendan Van Niejenhuis represented the Administration. Dennis Moffat who was present throughout the hearing was represented by Daniel Scott.

3. Written submissions closed Friday, February 8. From Monday, February 10 to Wednesday, March 5, the Vice Chair who was assigned responsibility for preparation of the first draft of these Reasons was otherwise engaged in a foreign jurisdiction. Hence the delay in releasing these Reasons.

4. Precipitating the Director’s stern intervention was a positive DPO test on the horse, DONEGAL BILL, for which Mr. Moffatt was in fact and as a matter of record, the trainer.

5. In the course of Out-of-Competition testing as contemplated by General Directive No. 5/2006, on November 21, 2006, an ORC Veterinarian accompanied by ORC Investigators attended at the training centre where Mr. Moffatt was stabled and drew blood from DONEGAL BILL for the purpose of EPO/DPO testing.

6. The agreed facts on this hearing were:

• The identity, continuity and integrity of the blood sample to and in laboratories including the testing and reporting protocols (in trade language “the chain of custody”).

• The testing procedure, analysis and conclusion correctly identified the substance as DPO.

7. The evidence consisted of:

• A Document Book filed by the Administration with Mr. Scott’s consent. The contents included the Director’s Order and Notice, the chain of custody documents, scientific reporting documentation and Standardbred Canada records relating to Mr. Moffatt and his racing operation.

• The evidence of George L. Robinson, owner of DONEGAL BILL, denying knowledge or complicity relating to administration of DPO was admitted in letterform.

• Testimony by Dr. Robert McKenzie, Laboratory Manager at Racing Forensic Inc. (formerly Vita-Tech Laboratories).

• Testimony by Dr. Cornelius Uboh, Director, Equine Toxicology and Research Laboratory for the Pennsylvania Department of Agriculture which is affiliated with the University of Pennsylvania.

• Testimony by Dennis Moffatt.

• Testimony by Pauline Moffatt, wife of Dennis Moffatt.

8. Mr. Moffatt, age 58, has a Grade 8 education and with no other skill training, has worked in the Standardbred industry as an owner and trainer for 32 years. On November 21, 2006, he operated a small public stable from a training centre on #3 Highway near Essex, Ontario. Ten horses were in his care as trainer, four of which he owned. Four were owned by George L. Robinson. His training arrangement with Mr. Robinson was that they equally divided the purse money. The remaining two horses were owned by other separate owners.

9. Pauline Moffatt described her involvement with the stable in her capacity as a licensed groom. About four times per week she attended to do chores such as cleaning stalls or wrapping bandages. Otherwise, Dennis Moffatt was the sole caretaker for the ten horses in his custody. If an ailment was perceived as serious, the “Vet” was contacted. In less critical matters, Mr. Moffatt would medicate the horse sometimes under telephone instruction from the “Vet” or his staff.

10. Mr. Moffatt testified that on occasion he had injected his horses as circumstances required. His Standardbred Canada record in the Document Book bears this out by reference to a rule breach - Rule 10.01, “possession of a needle and syringe, suspended December 5, 2005 to January 5, 2006.” His explanation, the equipment was for administration of Lasix. When the syringe fell from his pocket he was reported. This explanation may attract thoughtful analysis in light of the fact that the Exercise Induced Pulmonary haemorrhage program (EIPH) is a controlled medication program (Rule 2.61).

11. Mr. Moffatt’s obligation under Rule 35.07.01 is to present the horse at the track retention facility at least four hours and fifteen minutes prior to race time for administration of Lasix by officials in that facility where such facility exists.

12. Dennis Moffatt and Pauline Moffatt each acknowledged a general awareness of the gravity of an EPO/DPO violation and that serious consequences could follow. In this context, the April 13, 2006 Notice to the Industry provided that violations of Rule 6.46.01 (prohibiting possession or use on a horse of EPO and DPO) “May result in severe penalties and significant financial consequences.”

DONEGAL BILL

13. George Robinson was the registered owner of DONEGAL BILL from claiming him for $5,000 on October 19, 2005 until losing him in a $7,500 claimer May 21, 2006. Dennis Moffatt was the horse’s trainer during that interval (as indicated by entries on Exhibit 1 Tab 14).

14. On September 23, 2006, DONEGAL BILL was again claimed by George L. Robinson. Mr. Moffatt trained DONEGAL BILL through the 59-day interval from September 23 to the blood test on November 21, 2006. Mr. Moffatt did not have DONEGAL BILL tested for EPO/DPO following the claim.

15. Following service of the Director’s Order and Notice on December 22, 2006, all horses in Mr. Moffatt’s barn were barred from racing while he continued as trainer of record. His own horses were sold. The remaining horses were transferred to other trainers. Mr. Moffatt continues under suspension. Comment will follow on the rationale underlying the ORC stay policy for EPO/DPO and Class I and II violations.

16. Dennis and Pauline Moffatt denied any knowledge of EPO/DPO, its appearance, administration or dosage in connection with DONEGAL BILL or otherwise. Dennis Moffatt specifically denied administration of any improper substance to DONEGAL BILL personally or by agent.

17. Mr. Moffatt cooperated with ORC officials, explaining in his testimony that although he had not seen General Directive No. 5/2006, he had no reason not to let them draw blood. He gave statements to ORC Investigators when the blood was drawn and again upon return of the report from Racing Forensics Inc.

18. In his testimony he raised the issue of whether the DPO could have been administered in advance of September 23, 2006, the date on which he claimed DONEGAL BILL and thereby took possession of the horse.

19. Dr. McKenzie and Dr. Uboh were accepted as experts - Dr. McKenzie in detection and identification of equine drugs and prohibited substances, Dr. Uboh in equine toxicology. Each filed a Curriculum Vita, which is incorporated into the official record. Repetition here is unnecessary.

20. Dr. McKenzie explained:

• EPO is a protein hormone produced mainly in the kidney, which stimulates red blood cell development in bone marrow. Horses have equine EPO with the same source and function. Equine and human EPO are distinguishable.

• DPO is a synthetic and modified form of EPO engineered by introduction of amino acid into human EPO. DPO has increased potency and longer lasting effect. That resulting synthetic product is known as Recombinant Human Erythropoietin (rh EPO) or Darbepoetin-Alpha (DPO), and does not occur naturally in horses. Hence when detected in a horse the logical conclusion is that administration was exogenous or by human intervention.

21. Dr. McKenzie testified that the additional oxygen-carrying capacity of the red blood cells extends the horses endurance. He offered no opinion that the horse’s speed was increased in the abstract sense. He explained that the horse may be rated or conserved during the mile but in the run to the wire, top speed and endurance are demanded. The horse may not have increased its maximum speed during any part of the race but it may have maintained that maximum speed for a greater distance thereby producing a faster mile.

22. In cross-examination, Dr. McKenzie confirmed that EPO/DPO has no legitimate use for a horse that is racing. If the horse is debilitated beyond racing capacity, perhaps there may be therapeutic value.

23. Dr. McKenzie testified that for the purpose of the first stage screening by Racing Forensics Inc., the industry consensus is that detection of EPO/DPO is not possible for much longer than 96 hours following administration of the drug.

24. That premise underlies the Out-of-Competition testing program which is targeted on EPO/DPO. Production of red blood cells requires a lead-time administration prior to the race. On race day, the substance may be undetectable. Hence testing is directed toward probable time of administration several days in advance of the race date.

25. Dr. McKenzie testified that using his laboratory’s methodology, there would be zero chance of detecting EPO/DPO administered 59 days in advance of the blood sampling. That evidence was uncontradicted. In general terms, Dr. McKenzie’s evidence was endorsed by Dr. Uboh.

26. The laboratory procedure is twofold:

By Racing Forensics Inc.

• A screening test (ELISA) for residual equine antibodies against human EPO or DPO. The EPO/DPO antigen, as a foreign body, relates to immune response. That immune response to past exposure is suggestive of EPO/DPO but not conclusive. It enables flagging of samples as warranting further definitive testing.

By Equine Toxicology and Research Lab

• Identification of the molecular signature at Dr. Uboh’s laboratory - the antigen identification stage. This methodology which permits identification with scientific certainty was developed over the past four years, and has been published in a peer-reviewed scientific journal (Journal of Analytical Chemistry)

27. Dr. Uboh explained:

Neither human EPO nor synthetic DPO occurs naturally in horses. Introduction of a foreign substance (antigen) triggers an immune response producing antibodies specific to that antigen. The antibodies are used to attract and isolate the foreign substance. The resulting molecule is very large and by use of an enzyme hammer it is broken down into peptides. These peptides have specific signature characteristics that can be linked to an identifiable source. That identification process has been sufficiently refined so EPO and DPO can now be separately identified and distinguished. In this manner, the peptides are traceable to Recombinant Human Erythropoietin or DPO.

28. In relation to issue of the timing of administration of the drug, Dr. Uboh testified:

• With his Laboratory’s method, the time during which the substance is detectable is dose dependant.

• Within the constraints on his testing procedure (university and public policy relating to abuse of animals – excessive dosage carries the risk of death), identification has been successful up to 96 hours for EPO and 247 hours for the more potent and long-acting DPO. That lab testing was done under humane circumstances with horses in prime condition using a variety of dosages and testing times.

• He was not qualified to comment on the dosage or procedure that may be involved in the “underbelly” of racing. Depending on dosage, he considered it “very possible” that administration of the substance might be detected 59 days later. The implication in his evidence was that massive dosage such as may be detectable 59 days hence, carries the potential to produce a seriously ill or dead horse. The horse under the stress of racing will produce additional equine EPO. With overload, the risk is sudden death from a clot or ruptured blood vessel. No benefit accrues to the horse from the administration.

• The EPO/DPO could be completely gone from the horse’s system but the antibodies could be detectable as much as four years later.

29. The bottom line in Dr. Uboh’s testimony was that the result of testing the DONEGAL BILL sample was positive scientific identification of DPO.

30. At the training centre, there are 64 stalls in three barns. In Mr. Mofatt’s barn, another trainer occupied three stalls. The remaining five stalls were not in use. In addition to his ten stalls, Mr. Moffatt had an equipment or medication room in the barn. Generally, it was locked when he was not on the premises.

31. No evidence was lead as to the proximity of the other two barns or their occupancy. On the premises are a house and two apartments. No evidence was lead as to their occupancy. The security provided by the training centre was described by Mr. Moffatt as “none”.

32. The inference was invited in the course of the evidence that investigators did less than their duty by failing to search the equipment/medication room. In fairness to the investigators, comment is required. Out-of-Competition testing involves the taking of samples and nothing further. It is an intrusive procedure by nature and must not be made more so by improper extension. Investigators had no right to search the equipment room. They were not on ORC licensed premises. Their right to search is conferred by the Rules of Racing (Rule 9.07.02 following a positive test, Rules 10.02 and 10.03 relating to ORC licensed premises).

33. In cross-examination, the suggestion was made that Investigators should have sought consent from Mr. Moffatt, and having done so, should have embarked on a consensual search of the equipment/medication locker.

34. Once again, Investigators were correct. To proceed with a consensual search is an invitation for investigative disaster. The predictable challenge will be that the consent was fatally tainted by intimidation and coercion or by lack of full information. The probable consequence of such a challenge, if successful, is exclusion of the evidence generated by the search.

35. Furthermore, in relation to that inference of failure by investigators to properly discharge duty, it may be well to restate the theme of the Patrick Hudon Reasons for Decision. Section 6 of the Racing Commission Act 2000 is a statutory imperative.

“6. The Commission shall exercise its powers and perform its duties in the public interest and in accordance with the principles of honesty and integrity, and social responsibility.”

36. Thereby in my view two results follow:

• The highest ethical standard of Commission conduct is required. This is of vital importance where a licensee is in peril of losing the means of making a living in the career of his choice.

• That standard is impressed upon the “Commission” by Section 6. What is the “Commission”? “Commission” is defined in Section 1. “Commission means the Ontario Racing Commission.” The Ontario Racing Commission embraces the Board of Commissioners and the Administration with its various derivatives including the Investigative and Enforcement Branch. Thereby, the Section 6 standard is impressed upon investigators. It would be quite wrong to permit the Board of Commissioners to say:

• That was a breach of the Section 6 standard

• but it’s alright because the breach was committed by investigators not by the Commissioners

37. Investigators ought not to be censured for restricting their activities to the confines of their authority, as was this case.

38. Dr. McKenzie’s evidence is accepted specifically in relation to Racing Forensics Inc. testing procedures having “zero” chance of detecting DPO administered 59 days prior to the test sample.

39. Dr. Uboh’s evidence is accepted specifically in relation to his laboratory regimen producing an optimum testing period of 247 hours post administration of the drug. In this context, his evidence is noted as it relates to the dosage dependant possibility of detection 59 days later. The evidence approaches the generality that “anything is possible.” Against that background, the suggestion, totally unsupported by evidence, that the administration of DPO preceded the claim of September 23 must be rejected as a logical consequence of acceptance of Dr. McKenzie’s “zero chance” evidence.

40. On the entire evidence and the agreed facts, the following findings of fact are made:

• Equine EPO testing of DONEGAL BILL prior to the November 21, 2006 blood sample was within the normal range (Exhibit 1, tab 14).

• Dennis Moffatt was trainer for DONEGAL BILL following the claim on September 27, 2006 and on November 21, 2006, in fact and as of record.

• Accordingly, Mr. Moffatt was responsible for the care of the horse to the extent identified in the Trainer Responsibility Rule (26.02.01).

• During the 59 days preceding the November 21, 2006 blood sample, DONEGALL BILL displayed no symptoms which may have indicated over-medication by large or inhumane dosage of DPO or otherwise.

• The blood sample taken on that date did test positive for DPO. Based on Dr. Uboh’s unchallenged and persuasive evidence and on the factual admission that the substance was DPO, this constitutes clear, cogent and convincing evidence.

• The exogenous administration occurred after September 23, 2006, while Mr. Moffatt was trainer.

• Mr. Moffatt, by his own admission, was aware of the duty of care imposed upon him as trainer.

• He had no security provisions in place for his stable during his absence.

• He was aware that the training centre provided no security.

41. These illegal drug hearings come forward in template format. Owner, trainer and groom deny wrongdoing, complicity or knowledge. In a word, all are mystified. No direct evidence identifies the perpetrator. There is a rising tide of evidence which seems to invite the conclusion that EPO/DPO is a drug invariably administered anonymously, always without notice and only to someone else’s horse, expensive though it may be. (Re cost see the Brian Scott Reasons for decision)

42. Analysis of the circumstantial evidence might proceed as follows:

• Implicit suggestion of the “hidden hand” without identifying suspect or motive.

• No evidence of animus or ill will by some other person.

• The restricted number of persons who may stand to benefit by the horse’s enhanced performance.

• The difficulty for someone unfamiliar with the stabling arrangements in identifying a particular horse in unmarked stalls.

• Opportunity by the trainer, in terms of unfettered access.

• Potential motive by the trainer in terms of financial gain (fifty percent of the purse).

• Potential skill as a trainer to administer DPO. The evidence was that DPO is a powder to which water is added. Administration is by injection, probably intravenously and possibly intra-muscular for the less skilled. As indicated by his evidence and racing record, Mr. Moffatt had some experience with needles and syringes.

• DONEGAL BILL was well known by Mr. Moffatt, having trained him during prior ownership by George L. Robinson.

• DONEGAL BILL was capable of being seen as a horse needing a boost as indicated by the following:

  • DONEGALL BILL’S chart lines for race performance are found at Exhibit 1, Tab 8. In his last three starts at the $7,000/$8,000 claiming level prior to the September 23 claim, the horse earned $8,274. In his first three starts following the claim while racing at the $8,000 level, he earned $2,080. Did DONEGAL BILL need a bit of a boost?

  • Out-of-Competition testing targets EPO/DPO. Selection of subjects to be tested is not random. Change of the horse’s racing performance or other investigative information constitutes the basis for selection of the target. Timing of the sampling is focussed on the probable time of administration (several days in advance of racing). That such planning and implementation detects DPO is capable of raising an inference that investigators’ actions were well founded.

43. All of which may or may not be suspicious. But no matter. Certainly the sum total cannot comprise clear, cogent and convincing evidence identifying a perpetrator such as is required before a person an be deprived of his livelihood. (The Bernstein Standard – see Coats v Registrar 1988 CanLII 4555 (ON HCJ), 1998 65 O.R. (2nd) 526 as referenced at Paragraph 9 of the Brian Scott Reasons)

44. That background of circumstantial evidence would provide a context for assessment of the credibility and reliability of Mr. Moffatt’s sworn denial of complicity in administration of the DPO. However, that assessment is unnecessary because even absent Mr. Moffatt’s denial, the balance of the evidence relating to identity of the perpetrator does not meet the Bernstein Standard.

45. It is not necessary to prove violation by Mr. Moffatt of Rule 6.46.01 (possess EPO/DPO or use it on a horse). This proceeding is not a “who done it”. The racing landscape being what it is, proof of identity of the wrongdoer is elusive. That proof is not an essential component of breach of the Trainer Responsibility Rule (26.02.01). If the evidence did provide proof of identity of the perpetrator, that would be as a gravely aggravating factor increasing culpability and thereby bearing on penalty.

46. As a result of that inherent difficulty in tracking wrongdoing to the perpetrator, the Trainer Responsibility Rule (Rule 26.02.01) bears the integrity and public confidence burden for the entire industry. Absent that rule, racing is in the position of Brutus (to Strato):

“Hold then my sword and turn away thy face while I do run upon it.” – Julius Caesar 5.5.47.

47. Rule 26.02.01 provides:

• “A trainer shall be responsible at all times for the condition of all horses trained by him/her.

• The trainer must safeguard from tampering each horse trained by him/her and must exercise all reasonable precautions in guarding, or causing any horse trained by him/her to be guarded, from the time of entry to race until the conclusion of the race.

• No trainer shall start a horse or permit a horse in his/her custody to be started if he/she knows, or, if by the exercise of a reasonable degree of care having regard to his/her duty to safeguard their horse from tampering, he/she might know or have cause to believe, the horse is not in a fit condition to race or has received any drug that could result in a positive drug test.

• Without restricting the generality of the foregoing, every trainer must guard, or cause to be guarded by the exercise of all reasonable standards of care and protection, each horse trained by him/her so as to prevent any person from obtaining access to the horse in such a manner as would permit any person not employed by or not connected with the owner or trainer from administering any drug or other substance resulting in a pre-race or post race positive test.

• Every trainer must also take all reasonable precautions to protect the horse and guard it against wrongful interference or substitution by anyone in connection with the taking of an official sample.” Underlining added in all cases.

48. As is seen, the rule is multi-faceted:

• A general directive imposing responsibility for the condition of the horse. This duty may arguably be an absolute liability burden because no reference is made to a reasonable care defence. This comment is made in full awareness of the absolute liability indicators identified by Mr. Justice Dickson in the Sault Ste Marie case.

• A duty to exercise reasonable care in guarding a horse from the time of entry to the conclusion of the race.

• A duty of reasonable care relating to preventing a drugged or unfit horse from racing.

• A duty of reasonable care and protection to prevent access by others for the purpose of drugging.

• A duty of reasonable care relating to official samples.

49. The general obligation yielding to the specific, the fourth listed obligation prevails over the first in the sense that a due diligence defence is available to Mr. Moffatt. Accordingly, this hearing proceeds on a strict liability basis (see also Janone, Berringer and Montini). Had it proceeded on an absolute liability basis, no due diligence defence would be available.

50. Following a strict liability format, Mr. Moffatt may be found in breach of Rule 26.02.01 by reason of clear, cogent and convincing evidence of the positive DPO test but he has opportunity to avoid that finding by proving the exercise of due diligence or all reasonable care on a balance of probability.

51. That strict liability concept originates in and is defined by the Supreme Court of Canada (the Queen v Sault Ste Marie 1978 2 S.C.R. at 1326). Strict liability offences are as stated by Mr. Justice Dickson.

“Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances.”

52. What is reasonable depends upon the circumstances. No one is better positioned than Mr. Moffatt to know his circumstances. If these circumstances carry a risk of tampering, then the appropriate duty escalates. What were the existing circumstances? What was Mr. Moffatt’s response to those circumstances? Did that response constitute “all reasonable care” with the emphasis on “all”?

• Mr. Moffatt acknowledged awareness of obligation to protect horses under his care from tampering. He had been the victim of a tampering incident around 1980.

• He was aware that racetrack security disappeared at many tracks with closure of backstretch facilities.

• He knowingly elected to stable and train at a facility that offered neither replacement of track security nor security at any level.

• There was no evidence of precautions of any kind at the training centre such as posted signs, perimeter fence, locked access gates, restricted access, alarm bells, motion detectors, night lights, yard lights, security cameras, guard dogs, surveillance walk throughs, records of visitors or cars, access from barn to barn or security measures related to other racing stables.

• There was no evidence of feed storage arrangements, be they separate or communal, or relative to security provision for feed or water.

• During cross-examination, Mr. Moffatt raised the issue of loss of track security. This constitutes a clear signal that he regarded that level of security as beneficial and its loss as substantial.

• Mr. Moffatt took no steps on his own relative to security or replacement of some level of the former track security other than his routine training obligation. No attempt was made to lead evidence seeking to prove on a balance of probability that according to industry standards Mr. Moffatt’s training routine standing alone was sufficient to discharge his Rule 26.02.01 obligations. The trainer’s burden is of a high order indeed flowing directly from the experience and expertise required and the urgent gravity of non-compliance for horse, industry and trainer.

• He testified that he relied upon an honour system amongst trainers (each trainer dealing only with his/her own stable). This may be a discreet way of stating that he did nothing. The system invoked need not be foolproof. The standard is neither that of excellence nor perfection. It deals with reasonably feasible alternatives. However, it must exist and it must be reasonable in the circumstances.

53. On the basis of the evidence, Mr. Moffatt has not discharged the burden of demonstrating on a balance of probability that he exercised due diligence. On a balance of probability, he cannot be said to have done all that a reasonable trainer, fully informed, aware of the duty of care and the serious consequences of breach would have done in the circumstances. There is neither direct evidence nor suggestion of some unforeseen circumstances beyond his control. In effect he took no precautions beyond the scope of his training routine.

54. Closing backstretches with the attendant loss of track security raises a significant and difficult problem for trainers. To ignore the problem or to complain about it is no solution. Trainers must comply with the trainer responsibility rule and in cases of suspected breach, must be able to demonstrate compliance with the appropriate standard on a balance of probability.

55. Perhaps the time for licensing training facilities has arrived. The best interests of racing may be served by security and supervision issues at training centres being addressed through the medium of licensing standards.

56. Before leaving the due diligence analysis, it may be productive to comment upon the relationship between the ORC Policy on penalty Stays pending a Commission Hearing and the strict liability principle.

• In the criminal law context, the onus of proof is on the prosecution. Hence the presumption of innocence supports a “stay” in the sense of granting bail. However, bail is not a universal entitlement. The crime may be so egregious or so prevalent, the facts may be so outrageous that protection of the public and the risk of bringing the administration of justice into disrepute dictate that no bail be granted.

• In strict liability offences, the burden of proof of “all reasonable care” shifts to the defence. Accordingly, the positive drug test, absent the licensee’s demonstration of due diligence, results in a finding of breach. On the application for a stay, the positive drug test which shifts the burden of proof on a balance of probability to the defence is already before the tribunal. Given that prima facie guilty act and its profound gravity, protection of the public, of the competing racing community and of the integrity of racing militate against a stay. This is particularly so in relation to illegal performance enhancers such as EPO/DPO and the more serious Class I and Class II breaches.

57. In March 2006, the first EPO/DPO case in the history of the Ontario Racing Commission came on for hearing (Hudon). This is fifth (Gray, Scott and Friedman), a sixth is pending. Applicable principles have been discussed in the Reasons for those Decisions. Restatement of these principles in each case is redundant. Those principles are adopted and applied in this case. Of central importance is the gravity of the peril posed by EPO/DPO for an industry in a critical stage of decline. For ease of reference some of these principles are noted as follows:

• The stated resolve of the Provincial Government to maintain a dynamic racing industry as a component of the broad underlying agricultural sector. (Scott, paragraph 76, Gray, paragraph 40)

• Absent public confidence in the integrity of racing, wagering declines. Lacking that circulation of the wagering dollar, the lifeblood of the industry congeals – a terminal condition. Back to the County Fairs.

• Given the gravity of the consequences, of the many factors bearing on penalty, general deterrence must be paramount. (Gray, Paragraph 10)

• A high standard of justice must be delivered based on “clear, cogent and convincing” evidence (Bernstein). The Commission’s powers must be performed in the public interest and in accordance with principles of honesty, integrity and social responsibility (Section 6).

• Considerations bearing on penalty are comprehensively reviewed in Scott (paragraph 66 to 61) and Gray (paragraph 44 to 68).

• ORC counter measures on the EPO/DPO issue have been long standing and high profile. Gray (paragraph 11 – 31).

• Parity of penalty issues and the proper use of Commission’s Penalty Guidelines dated March 30, 2001 (Gray, paragraph 32 – 54 (Scott, paragraph 72).

• Time served under suspension while awaiting a hearing and its result (Gray, paragraph 58 – 59).

• The amount of any fine imposed (Gray, paragraph 60 – 68).

• The Director’s concurrent jurisdiction for the Proposed Order (Section 22 Ontario Racing Commission Act 2000) and for the Immediate Suspension (Section 23).

• Mr. Moffatt’s right to a hearing (Section 22 (2)) (Section 23 (3).

• The Panel’s authority to issue a ruling (Section 22 (6) (a) (b)).

58. As the level of culpability escalates, the appropriate penalty follows. Lifetime suspensions may have to be considered if the seriousness of the breach sufficiently threatens the future of an industry in obvious and mortal distress. The urgency of general deterrence may overwhelm rehabilitation considerations.

59. EPO/DPO places the horse at risk and imperils the industry. Performance-enhancing drugs cast an executioner’s shadow across horse and industry. The message, clear, concise, emphatic, irreversible is reasserted. “EPO /DPO is an exit ticket.”

60. Parity considerations related to Scott and Gray demand a ten-year suspension. The Executive Director’s suggested ten-year suspension must and will be accepted effective from December 21, 2006. In accordance to the Gray and Scott Reasons, application for reinstatement at the appropriate time would be well served by supporting evidence of rehabilitation.

61. Mr. Moffatt has on the evidence no business interest other than racing. Judging by the chart lines in evidence, he operated on the lower financial level of racing. Mr. Moffatt’s cooperation in making two statements to ORC investigators (as he was obliged to) and his factual admissions at the hearing, have earned some consideration. This is reflected in the amount of the fine. Following the reasoning in the Brian Scott case, the appropriate fine is $10,000. This reflects in part, the harm done to racing, the cost to the Administration (which is borne by the industry through the ORC financing system) and Mr. Moffatt’s limited means, such as can be garnered from the evidence. The Administration laid no evidentiary base for any more substantial fine. This could have been accomplished by statement from Mr. Moffatt, by other investigative means or as last resort, by a discreet and relevant cross-examination of Mr. Moffatt.

62. Pursuant to Section 22 (6) (b), the Director’s Order is varied to provide:

• Ten-year full suspension from December 21, 2006.

• A fine of $10,000.

63. An Order will issue in these terms.

DATED this 19th day of March 2008.

James M. Donnelly

Vice Chair