Justin Stein v. Administration of the Ontario Racing Commission, 2009 CanLII 91209

COMMISSION HEARING TORONTO, ONTARIO – DECEMBER 2, 2009

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

Justin R. Stein, (“Stein”), is licensed by the Ontario Racing Commission, (“ORC”), as a jockey for thoroughbred racehorses, Licence Number 127895.

On Wednesday, September 9, 2009, Stein rode horse #5 in the 7th race at Woodbine Racetrack.

Stein was unseated during the race.

A Stewards’ inquiry was inconclusive.

The conduct of Stein immediately following the race resulted in the issuance of a Notice of Hearing and Videotape Review.

On Thursday, September 10, 2009, the hearing was held before a Panel of Track Stewards.

On Friday, September 11, 2009, Ruling Number TB 6094/2009 was issued against Stein for gross and unsportsmanlike conduct, disturbing the peace by use of profanities and threatening another licensee, contrary to the Rules of Thoroughbred Racing 15.09.01, 15.11.01, 16.05 and 16.13 (c) & (d) and 24.04.

The penalty imposed was as follows:

(i) A $2,500 fine (fine to be paid on or before October 9, 2009) and,

(ii) A suspension of licence for 25 calendar days (from September 14, 2009 through to October 8, 2009, both dates included).

On Friday, September 11, 2009, Stein filed a Notice of Appeal against the penalty.

On Saturday, September 12, 2009, the penalty against Stein was stayed by the ORC, pending the hearing of his appeal.

Wednesday, December 2, 2009, at 9:00 a.m., was selected as the Hearing date.

A Panel of the Commission, consisting of Chair Rod Seiling, was convened to hold the Hearing.

Stein attended the Hearing in person.

Daniel J. McMahon appeared as counsel for Stein.

Anthony Williams appeared as counsel for the Administration of the ORC.

The appeal of Stein was restricted to penalty alone.

Upon reading the exhibits filed, and upon hearing the evidence of Robert King, National Secretary of the Jockey’s Benefit Association, Emma-Jayne Wilson, Jockey, James McAleney, Jockey, and Paul Carroll, Pastor, and upon hearing the submissions of both counsel, the Commission Panel ordered as follows:

(i) a fine of $4,000 and

(ii) a suspension of 25 calendar days.

Eighteen (18) days of the suspension are stayed. The suspension will start upon the opening of the 2010 thoroughbred racing season at Woodbine. The Stay is to remain in effect for the 2010 racing season in Ontario. If Stein has no further outbursts and keeps the peace, the 18 days will be abrogated.

DATED this 4th day of December 2009.

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview

Licensee Justin Stein appealed a ruling of the Stewards of the Ontario Racing Commission (ORC), TB 6094/09, wherein he was suspended 25 calendar days and fined $2,500 for gross and unsportsmanlike conduct, disturbing the peace by use of profanities and threatening another licensee.

Background

During the running of the 7th race at Woodbine Racetrack on September 9, 2009, Jockey Justin Stein was unseated from his mount, Steady A to Z, as the horses were coming around the far turn.
Legal counsel for the Administration of the ORC, Anthony Williams, and Dan McMahon, legal counsel for the appellant, provided the Panel with an agreed statement of facts as represented in tab 1 of Exhibit 2. As a result, the de novo hearing was only on the penalty aspect of the ruling. The essence of those facts was that immediately after the race, Mr. Stein used vulgar, vitriolic and degrading comments towards Jockey Chantal Sutherland. These comments were made in both a public area of the track (track apron) and within the confines of the jockeys’ quarters.
Attempts to calm Mr. Stein by Woodbine security and racing personnel were unsuccessful. Mr. Stein was extremely upset at being unseated from his mount, the second such occurrence within about 8 weeks, and believed Ms. Sutherland to bear responsibility for the incident. An official film review conducted by the Stewards the next day was inconclusive and as a result, no blame was attached to any party riding in the race.
Mr. Stein sought out Ms. Sutherland the first thing the next morning to apologize for his behaviour. This fact was confirmed by Robert King, National Secretary of the Jockeys’ Benefit Association and Jockey, Emma-Jayne Wilson. The apology reportedly was sincere and accepted by Ms. Sutherland.
Pastor Paul Carroll confirmed that Mr. Stein and his family are members of his congregation, that he has discussed his actions with him and that he is very regretful and sorry for what he did. It was his position that his actions that day were out of character.
Mr. McMahon submitted that a substantial fine would be a more appropriate penalty. Mr. Williams listed numerous mitigating factors as well as a number of aggravating factors as they related to penalty. Mr. Williams also referenced the Criminal Code of Canada as it relates S 718 and the objectives of penalties.

Issue

Was the penalty assessed by the Stewards appropriate given the nature of the outburst by Mr. Stein in both the demeaning and personal attacks on Ms. Sutherland, coupled with the fact that some of the outburst occurred in full view of the public?

Decision

After carefully considering the testimony, the evidence and the documents submitted, Mr. Stein’s suspension of 25 calendar days is upheld but 18 days of the suspension are stayed. The suspension will start at the commencement of the 2010 Woodbine opening for thoroughbred racing. The Stay is to remain in effect for the 2010 thoroughbred racing season in Ontario. If Mr. Stein has no further outbursts and keeps the peace, the 18 days will be abrogated. Mr. Stein’s fine is varied and set at $4,000.

Reasons for Decision

Mr. Stein is guilty of violating TB Rules Nos. 13.09.01, 15.11.01 and 16.05 (a). There was no dispute as per the agreed statement of facts.
The Panel recognizes that being a professional jockey is a very dangerous occupation and that jockeys sometimes become agitated with one another and have words. It is also a fact that intimidation is a strategic part of riding and that riders need to protect themselves.
These facts do not absolve jockeys from obeying the rules. To allow it to be otherwise would negate the raison d’etre for the Commission: to protect the health and welfare of the horse, to protect the safety of participants and to protect the public interest. All three would be jeopardized.
The Stewards acted appropriately, both in their disposition of the incident and the imposition of the penalty. This case is demonstratively different from all other precedent cases, the public component. While there was no physical contact, Mr. Stein had to be restrained from entering the female jockeys’ quarters.
The Panel accepts that jockeys may have disagreements, that they may lose their temper and have words, but there are limits and Mr. Stein clearly crossed the line. Therefore, a penalty based on the purposes and principles as laid out in S 718 of the Criminal Code of Canada is instructive. It is not necessary to recall verbatim the respective words, they are there for all to read in the Brown decision (SB 038/2009) at paras 14 & 15.
Mr. Williams listed 13 mitigating factors in favour of Mr. Stein. They were not available to the Stewards at the time of the hearing with Mr. Stein. Their derivation comes from the letters of support for Mr. Stein. It is not useful to list all of them but the more cogent include remorseful, no gender bias, peace loving and level headed. They are buttressed with the fact that he sought out on his own, Ms. Sutherland, at his first opportunity the next morning and apologized to her. Further support for the appellant in this regard is his good prior record. Aggravating factors were the location of the incident, with the possible impact on the public at a time when the sport is struggling for more public support combined with the degrading, vitriolic and vulgar nature of the diatribe. Those comments cannot be tolerated and do not constitute “having words” to work out differences between jockeys.
In varying the penalty, the Panel does not envision seeing Mr. Stein involved in this type of incident again. Therefore, although a requirement for enrollment in an anger management course might seem obvious, it is not appropriate in this case.
The Panel notes that Jockeys Wilson and McAleney testified in a manner that their respective testimony was forthright and helpful to the Panel.

DATED this 4th day of December 2009.

Rod Seiling

Chair