Michael McMullen v. Ontario Racing Commission, 2009 CanLII 91225

RULING NUMBER COM TB 008/2009

COMMISSION HEARING TORONTO, ONTARIO – APRIL 30, 2009

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

AND IN THE MATTER IN THE APPEAL OF

THOROUGHBRED LICENSEE MICHAEL MCMULLEN

Michael J. McMulen, (“McMullen”), is licensed by the Ontario Racing Commission as a jockey for thoroughbred racehorses, Licence No. 103184.

On August 19, 2008, McMullen was the jockey for horse No. 10, MURPHY’S DEVIL, in race No. 6 at the Fort Erie Racetrack.

McMullen was alleged to have violated the Rules of Thoroughbred Racing, Rule 9.27.04, whipping a horse:

i. on the head, and

ii. raising the whip above his shoulder when striking his mount.

On August 24, 2008, following a Hearing by the track Stewards, McMullen was found to have been in violation of this Rule.

The penalty imposed was a suspension for 5 racing days.

McMullen appealed against the penalty.

On Thursday, April 30, 2009, a Panel of the Ontario Racing commission consisting of Vice Chair James M. Donnelly, Commissioner David Gorman and Commissioner Bernard Brennan, DVM was convened to hear this matter.

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

Upon hearing the evidence of Senior Steward Richard Anthony Grubb, called as a witness by the Administration and Michael J. McMullen, the appellant, and upon a review of the exhibits filed, and upon hearing the submissions of both McMullen and counsel for the Administration, the Panel ordered as follows:

i. the Appeal against penalty is dismissed;

ii. the Ruling of the Stewards is confirmed;

iii. the stay is dissolved;

iv. the suspension is for 5 racing days, May 10, 11, 12, 17 and 18, 2009.

The Reasons for Decision are attached to this Ruling.

DATED this 27^th day of May 2009.

BY ORDER OF THE COMMISSION

John L. Blakney

Executive Director

REASONS FOR DECISION

1. These are Reasons for the Ruling herein made April 30, 2009.

The Appeal

2. Licensed jockey, Michael McMullen (McMullen), appeals the 5-day suspension imposed by the Stewards at Fort Erie in consequence of a whipping violation on his mount, MURPHY’S DEVIL, during the stretch run in Race 6 August 19, 2008 (TB Rule 9.27.04(i)”strikes to the head” and Rule 9.27.04(iv) “whip above shoulder”).

3. On October 1, 2008, McMullen’s Appeal to the Industry Appeal Board was dismissed. The suspension has been stayed pending determination of this Appeal.

4. McMullen chose to and did conduct his Appeal explaining that as President of the local Jockeys Guild he had experience with Commission hearings. Courtesy and competence marked his presentation before the Panel.

Preliminary Objection

5. McMullen contended by preliminary objection that one of the Stewards presiding over his Hearing was not properly qualified because he was not certified by Racing Commissioners Inc. (RCI). This submission was of no consequence because the issue comes before this panel as a de novo hearing, in plain language, a fresh start.

6. In passing we note that Thoroughbred Rule 16.01.01 provides: "There shall be a Board of three Stewards appointed by the Commission for each racing day". The term "Steward" is defined in the Thoroughbred Rules as follows: "Steward is a duly appointed racing official with powers and duties specified by statute or rules". The Steward in question was appointed in compliance with those rules. Any lack of RCI accreditation does not disqualify him.

The Whipping Strikes

7. Based on video replays of the stretch run the parties agreed there were twelve strikes with the whip from the quarter pole to the wire. Strikes six and seven were between the ears and on the side of the head. Strikes eleven and twelve were with the whip “above the shoulder”.

8. In relation to the head strikes, McMullen contended that despite conventional efforts his horse continued to bear out in the stretch (and it did). In an effort to gain more control he deliberately struck the horse twice on the head. The blows were in rapid succession and judging by the video replay were of substantial force. The horse did tend to race in its lane after those blows. However, the prohibition in the Rule makes no exemption for this exigency.

9. The “above the shoulder” strikes were in baseball terminology blatant "upper deck" swings. McMullen referred to his actions as "extreme persuasion". The arm was twice raised to the extent that a racing neophyte may have the impression that McMullen spotted a long-lost grandmother and was seeking to attract her attention.

10. Strikes 11 and 12 were at the shadow of the wire. The horse was 7^th at that stage and finished 7^th. There was no chance that it could have been 5^th and thereby be entitled to a minor share of the purse money. The total of twelve strikes during the stretch run, four of them in violation of the rules, point towards frustration rather than “in a manner consistent with exerting best effort so win” Rule 9.27.01.

11. McMullen conceded the violation relating to the head and the violation “above the shoulder”. With that concession, the sole issue remaining was penalty.

Other Instances of Head Strikes

12. McMullen contended the five-day suspension was excessive compared to penalties imposed for similar incidents with other jockeys. In support he filed copies of Stewards' Rulings as follows:

• cutting a horse on the flank, fined $300.00 September 1st, 2008 Fort Erie.

• struck horse on the head during the stretch run, fined $200.00 June 2nd, 2008 Fort Erie.

• indiscriminate use of the whip behind the starting gate while the horse was being led or held by a third person (said by McMullen to be a head strike), suspension 3 days, fined $300.00 June 5, 2007 Fort Erie.

• struck horse on the head during the post parade, fined $300.00 August 15, 2006 Fort Erie.

• using whip with excessive frequency during the stretch run, three days suspension (jockey's fourth whipping conviction this year), Woodbine August 8, 2008.

13. McMullen testified as to his understanding, recollection, analysis and description of those incidents. The Rulings were filed. The Reasons for the Rulings were not. Absent formal findings with reasons, the probative force of this comparative evidence was diminished.

14. McMullen invoked rhetoric to support his contention. Those incidents were described in terms inflammatory in nature, to wit “horrifying”, “gross”, “clubbing”, “viciousness”.

15. If McMullen is correct that those animals were brutalized to the extent described then the overwhelming conclusion must be that the penalties imposed were woefully inadequate and must be denounced as such. Denunciation is a legitimate component of the penalty process (Section 718 Criminal Code).

16. In relation to the whipping penalty issue Senior Steward, Richard Grubb, testified as to the existence of an accord between the Stewards and the Jockeys’ Guild that fixed penalties would be assessed for jockeys cutting a horse with a whip - first cut $300.00, second cut $500.00, thereafter suspension. Grubb pointed out that a cut may be inflicted inadvertently. In contrast, the Standardbred Rule 22.23.03 provides:

“Upon receipt of a veterinarian’s report specifying that a horse has been cut during or immediately after a race, the Judges shall hold a hearing to inquire into the matter. If, after the hearing, the Judges are satisfied that the cut was inflicted by the whip of the driver, they shall impose a suspension of not less than 15 days.”

17. To state the obvious, it is recognized that for the different breeds there are different whips and styles of whipping.

18. In cross-examination, Grubb was asked by McMullen if he agreed that the penalty was excessive. His response was that in hindsight he considered the penalty to be far too lenient.

Consistency

19. McMullen asked for a penalty consistent with the precedents which he cited. Given an opportunity to suggest a penalty appropriate for his conduct he declined.

20. In response to the request for consistency certain principles should be identified:

• Parity of sentencing is fundamental - similar penalties for similar offenders for similar offences in similar circumstances. Thereby penalties are fair and predictable.

• Parity principles are premised upon the basis that the penalty is in the proper range. Being consistently wrong is an affliction far exceeding that of inconsistency. Otherwise stated – better wrong some of the time than wrong every time.

• Parity does yield to other considerations. The penalty must respond to and be proportionate to the offence. If the violation is rampant and the stereotypical penalty is clearly impotent in terms of denunciation or deterrence then the penalty must be ratcheted upwards. If the penalty is grossly inappropriate for the offence, a new baseline must be established.

• Whipping is a "hot topic" as racing examines its practices and conscience. Currently whipping practices and rules are under extensive review, including pilot projects in both breeds. The focal points are the health and safety of the participants, equine and human, the competitive core of racing and the character that racing hopes to achieve as well as the public perception thereof. The initial objective is comprehensive revision of whipping rules. That being a work in progress, for today's purposes we apply Rules in force on the date of this occurrence August 19, 2008.

The Head Strikes

21. Grubb’s evidence was “we just don’t have a lot of beating on the head and not to this severity.” Rare these incidents may be – rarer they should be.

22. Factors for consideration in relation to the head strikes include:

• The welfare of the horse. Should the fact that the skin was not broken be accepted as proof that there was no injury?

• The violence of the strikes and their rapid repetition.

• The striking was wilful with full knowledge that it was in breach of the Rules.

• The area struck was vulnerable and undoubtedly susceptible to pain. There was no protective padding of muscle, flesh or thick hide.

• There was no imminent danger confronting McMullen beyond that inherent in any stretch run.

Analysis

23. The Rules restrict whipping to certain areas. Those areas are selected purposefully to protect the horse. The prohibitions are not suggestions. They are mandatory and of paramount importance for the welfare of racing.

24. Is it wrong to suggest that the public response to this flagrant abuse is revulsion? The ORC is charged with protection of the public interest in horse racing. In discharge of that public trust the ORC must respond. The primary objectives of that response must be denunciation and deterrence

Result

25. Based on the evidence and McMullen’s concessions, there are findings of breach of Rules 9.27.04(i) (head) and 9.27.04(vi) (above the head).

26. The Rules of racing fall into two categories. The second category is far more serious and must be treated accordingly.

Firstly

• Rules which are regulatory in the sense of contributing to the orderly conduct of racing. The prohibited action is not wrong in itself. Only by the Rule is it rendered wrongful. An example from beyond the racing sphere is – driving a motor vehicle at a speed of 85 km/hr. This is legal in Huron County (speed limit 90 km/hr) and illegal in adjoining Perth County (speed limit 80 km/hr). An example from the racing world, overcrowding in the paddock.

Secondly

• Rules which prohibit conduct that is inherently wrong. Examples from beyond the racing sphere are – murder or assault with a weapon. An example from the racing world, any form of cheating, perhaps by drugs.

27. The essential trust impressed upon the Ontario Racing Commission (ORC) is responsibility for the welfare of the horse, racing personnel and the public interest in the well being of racing.

By Notice to the Industry April 18, 2006, the ORC issued a Policy Statement in part as follows:

“The Ontario Racing Commission recognizes that the health and well being of the horse is a paramount concern to the racing industry.”

28. Physical abuse of the horse, and more so to this extent, offends against that fundamental ORC obligation. This conduct is inherently wrong, and falls within the second category of offences. No option exists other than stern response.

29. Disagreement with Richard Grubb’s hindsight evaluation that “the penalty is far too lenient” is difficult. However, there was no notice to McMullen that a higher penalty would be sought. There was no cross-appeal by the Administration. The whipping issue is under current review. In these circumstances, it is not appropriate to increase the penalty. Certainly it cannot be reduced.

30. McMullen had a record for whipping violations (4) but none recently. Because of the vintage of that record it was not considered to be an aggravating factor.

31. The penalty imposed by the Stewards is confirmed. As stated at the conclusion of the Hearing a five-day suspension was imposed, the dates being May 10^th, 11^th, 12^th, 17^th and 18^th, (Fort Erie racing days.)

32. This result is fact specific. Future incidents may precipitate more severe consequences.

Delay

33. Comment about delay in this proceeding should be recorded. There was no institutional delay by the ORC. The passage of time was necessarily incidental to the ORC policy of accommodating licensees’ reasonable expectations in the fixing of Hearing dates. McMullen's appeal to the Industry Appeal Board was dismissed on October 1^st. The Commission hearing was delayed over the winter months in consequence of McMullen racing in southern jurisdictions. In anticipation of his return, the Hearing was scheduled for April 8^th. At his request it was adjourned to April 30^th.

DATED this 27^th day of May 2009.

James M. Donnelly

Vice Chair

Thoroughbred Rules

Rule 9.27.01

Although the use of a whip is not required, any jockey who uses a whip during a race shall do so only in a manner consistent with exerting best efforts to win.

Rule 9.27.04

(i) on the head, flanks or on any other part of its body other than the shoulders or hind quarters;

(iv) when the horse is clearly out of the race or has obtained its maximum placing;

Rule 16.01.01

There shall be a board of three Stewards appointed by the Commission for each racing day.