Ontario

Racing

Commission

DRAFT

RULING NUMBER COM QH 001/2009

COMMISSION HEARING TORONTO, ONTARIO – MAY 12, 2009

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

AND IN THE MATTER IN THE APPEAL OF

QUARTER HORSE LICENSEE, JOHN McCUBBIN NEILL

John McCubbin Neill (“Neill”) is licensed by the Ontario Racing Commission as an Exercise Person/Trainer/Owner, Licence No. 127951 for Quarter Horse racehorses.

On August 26, 2008, Neill was found to be in possession of a hypodermic syringe, needles and injectible substances within the grounds of an association at Ajax Downs Racetrack, contrary to the Rules of Quarter Horse Racing 15.02.01 (a) and (b).

On September 14, 2008, following a Hearing by the track Stewards, Neill was found to have been in violation of these Rules.

The penalties imposed upon Neill were as follows:

• Suspension for 30 days, the suspension shall commence on the first day of racing at Ajax Downs, 2009;

• Fine of $500, fine to be paid on or before the final day of the suspension;

Neill appealed against both the conviction and the penalties.

On Tuesday, May 12, 2009, a Panel of the Ontario Racing Commission consisting of Chair Rod Seiling, Vice Chair James M. Donnelly and Commissioner David Gorman, was convened to hear this matter.

Neill appeared in person. Neill was self-represented. Anthony Williams appeared as counsel for the Administration.

A de novo (new trial) Hearing was held by the Commission.

Upon hearing the evidence of Detective Constable Brian Arrand of the Ontario Provincial Police, Dr. Lindsay Colwell, DVM and Norman Picov, called by the Administration, and upon hearing the evidence of Garfield (Gary) McNichol, called by Neill, and upon reviewing the exhibits which were filed, and upon hearing the submissions of both Neill and counsel for the Administration, the Panel ordered as follows:

i) The appeal against conviction is dismissed;

ii) The appeal against penalty is dismissed;

iii) The suspension for 30 days commences with the start of the 2009 race meet at Ajax Downs;

iv) The fine of $500 is confirmed.

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

DATED this 22^nd day of May 2009.

BY ORDER OF THE COMMISSION

Rob McKinney

Acting Executive Director

REASONS FOR DECISION

Overview

1. Quarter Horse licensee, John Neill, appealed the Stewards’ Ruling dated September 14, 2008, at Ajax Downs wherein he was found to be in violation of TB Rule No. 15.02.01 (a) and (b). The penalty imposed was a suspension to commence with the start of the 2009 racing season at Ajax Downs of 30 days and a fine of $500.

Background

2. On August 26, 2008, Mr. Neill’s vehicle, a white 2005 Ford pickup truck, license 4564FA (Ont), was stopped and searched while on the grounds of Ajax Downs at about 2:40 p.m. The search was conducted by Detective Constable Brian Arrand of the Ontario Provincial Police under secondment to the Ontario Racing Commission (ORC) Investigations Unit. All vehicles entering the track that day, a non-race day, were searched. Track Manager, Norman Picov, confirmed that the entrance to the track is off Highway #2 and begins at the two stone pillars with white fencing attached to both. The search area for vehicles had to be moved up to the backstretch restricted area entrance (Ex. 3, tab 23, p. 24), as previously when vehicles were searched at that entrance (Ex. 3, tab 23, pic. 8), a backup of vehicles resulted onto Highway #2.

3. The search occurred about 40 metres inside the entrance to the track off Highway #2 (Ex. 3, tab 23, pic 19). The entrance to the track, the only one, is well signed as the pictures in Exhibit 3, tab 23, numbers 8 thru 16 indicate. Signage on entering, (Ex. 3, tab 23, pic. # 1, 2, & 23), clearly indicates the areas reserved for horse people to park versus the general public. Mr. Neill indicated he always parked his vehicle in the area off to the right that is reserved for horse people, as there was insufficient room inside the restricted area when his horse trailer was attached to his truck, as it was that day.

4. Mr. Neill admitted, as he did on the day of the search to Mr. Arrand, he was in possession of items, Exhibits 7 thru 11. They are as follows:

Ex. 7 needle and syringe containing a clear liquid

Ex. 8 bottle of ESE injectible vitamins

Ex. 9 bottle of Unix Plex injectible vitamins

Ex. 10 bottle of Cal Mag injectible solution

Ex. 11 6 30 cc syringes

5. All of the above items are prohibited on the grounds of a licensed racetrack under TB Rule No. 15.02.01 (a) and (b) which reads as follows:

“No persons except physicians, Commission Veterinarians, Official Veterinarians or veterinarians licensed by the Commission and registered veterinarian technicians or veterinary student assistants who are under the supervision of a veterinarian and licensed by the Commission shall have in or upon the premises or motor vehicle which he/she occupies or has the right to occupy, or in his/her personal effects within the grounds of a racetrack.

(a) any hypodermic syringe, hypodermic needle or any other device which could be used for the injection or infusion into a horse of any substance and/or,

(b) any injectible (substance capable of being injected) which may be administered by a hypodermic syringe, hypodermic needle or device without first securing written permission from the Deputy Director of Racing or the Stewards.”

6. There was no dispute that all of the items seized on August 26, 2008, from the appellant, were purchased by him earlier that same day with some being prescribed by Dr. Lindsay Colwell, the appellant’s veterinarian. Dr. Colwell was aware that the items were not allowed on a racetrack and testified that she cautions her clients to this fact. All of the items were for a horse, G J Balanced Dimples that was located away from the track. Nothing in the medications would be used to affect the outcome of a race.

7. It was Mr. Neill’s contention that Rule 15.02.01 did not apply as he was not in the restricted area of the track. He further argued that he was unaware of the exact boundaries of the track and that the signage did not clearly indicate when the approved race meeting was in progress. In support of his position was former Quarter Horse Owners Association President, Gary McNichol, who has raced at Ajax Downs for many years. Countering Mr. Neill was Track Manager, Norm Picov, who stated that Mr. Neill was as well aware of the track property boundaries on the basis that he has been around the track as long as he has (1969).

8 Mr. Neill claimed that a drainage survey map (Ex. 3, tab 19) of the property did not indicate boundaries and that without such, how was he or any other person to know where the track boundary was. In actual fact, the Panel notes that the boundary lines are indicated on the map notwithstanding that map would not be available to very many individuals.

9. He also contended that it was not clear when the approved race meeting at Ajax Downs was taking place as the sign (Ex. 3, tab 23, pic 16) indicating the dates of racing did not indicate the year. His own witness, Mr. McNichol, testified that it would be 2008. With respect to the location of the sign, the pictures taken by Mr. Arrand took place one month post the search. Mr. Picov confirmed Mr. Arrand’s information that on August 26, 2008, it was located at the entrance to the track and had been moved to accommodate the construction for the new track. It was this same construction that caused the track to end its racing season on September 21.

10. Mr. Neill contended that a “grey area” existed as to where ORC rules applied as to what were public areas versus restricted areas of the track. It was his contention that the rule only applied to the area of the track inside that area reserved for licensees. How was one to know the difference? In the agreed statement of facts as it related to Mr. Picov’s Interview Report (Ex. 4, tab 31), the Panel notes that he conveys that the parking area for the track is off Highway #2, that it is fenced off with signage indicating where the public and horse people park. These areas are maintained by employees of Ajax Downs.

Issue

11. Did Mr. Arrand have the authority to search Mr. Neill’s vehicle and seize any items he might find? Was the vehicle searched Mr. Neill’s, and was it located on the grounds of Ajax Downs on August 26, 2008, at about 2:40 p.m. when it was searched by Mr. Arrand acting on behalf of the Ontario Racing Commission? Did Mr. Neill have the legal right under the rules of the ORC to have in his possession those items? Is the penalty appropriate or are there any extenuating circumstances?

Decision

12. After carefully reviewing the testimony, the evidence and the submissions made, the Panel denies the appeal of the appellant. Mr. Neill’s suspension of 30 days commences with the start of the 2009 race meet at Ajax Downs and the fine of $500 is confirmed.

Reasons for Decision

13. Mr. Neill is a licensee of the Ontario Racing Commission. It is clear that under TB Rule No. 15.13, all licensees consent to search and examination and the seizure of any hypodermic needle, syringe, drugs and medicaments of any kind by way of their privilege of being granted a licence.

14. Mr. Arrand had the delegated authority under TB Rule No. 15.12 to conduct his search. That authority extends to any part of the racetrack as it all forms part of the “grounds”.

15. Mr. Neill did not dispute that the vehicle was his. The evidence submitted supports this fact. He also admitted to purchasing all the prohibited items earlier in the day and having them in that same vehicle.

16. Mr. Neill did not have permission from the Stewards to bring those items onto the grounds of the racetrack nor does he qualify under Rule 15.02.01 as one of the persons allowed to have any of these items in their possession on the grounds of a racetrack. Ajax Downs is a licensed racetrack operating under the rules of the Commission.

17. Mr. Neill, when he was stopped and the search performed, was clearly, based on the evidence, on the grounds of Ajax Downs. The search and investigative powers apply to the entire grounds of a racetrack not just the restricted area commonly known or referred to as the backstretch. In support of this opinion, the Panel relies on the Austin case, p. 24, Austin v Ontario Racing Commission, [2007] O. J. No. 3249. Reynolds (re) the Racing Commission Act, R. S. O. 1990 c. R. 2 in the matter of the appeal of SB licensee Ryan Reynolds [2000] O. R. C. D. No. 12 Series No. SB 98/2000 p. 19 reads, “...in the investigation Stone established that the raceway was responsible for maintenance of this lot and that the grounds start at the public roadways leading onto the property as evidenced by the site plan”. The Durnin case (SB Ruling No. 008/2009) reaffirmed this fact. TB Rule No. 1.04 provides that ignorance of the rules is not a valid defence.

18. Given the aforementioned facts, therefore, Mr. Neill was in violation of TB Rule No. 15.02.01 (a) and (b).

19 There were extenuating circumstances to Mr. Neill violating the above rules as evidenced by the Stewards’ Ruling. None of the drugs or medicines would be used to affect the outcome of a horse race and they were obtained legally for use on another horse owned by the appellant stabled at another location. It was Mr. Neill’s bad judgement to then go to the track rather than to proceed to the farm. His poor decision-making might lead to a more lenient penalty if it were not for the fact that the possession of hypodermic needles and syringes on a racetrack property is a very serious rule violation. This Panel cannot and should not send any signal to the industry that it can or will condone such acts be they wilful or via negligence such as Mr. Neill. Therefore the penalty is appropriate given the severity of the violation.

DATED this 22^nd day of May 2009.

Rod Seiling

Chair