Ontario Racing Commission

TB

RULING NUMBER COM SB 032(a)/2009

COMMISSION HEARING TORONTO, ONTARIO – OCTOBER 5, 2009

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

AND IN THE MATTER IN THE APPEAL AND REQUEST FOR HEARING OF

STANDARDBRED LICENSEE JAMIE K. DOIG

REASONS FOR DECISION

This Appeal proceeded on October 5, 2009. The Ruling COM SB 032/2009 was released on October 16, 2009, with Reasons for Decision to follow. These are the Reasons.

Background

1. Jamie K. Doig (Doig) appeals Ruling SB40511 which imposed a six-month full suspension and a fine of $3,000.00 followed by two years probation, January 3^rd, 2010 to January 2^nd, 2012.

2. On June 11, 2009, the horse MIABEACHGIRL, trained by Doig, finished 1^st in race 9 at Hiawatha Horse Park. Compulsory testing of post race blood samples under authority of Commission Directive No. 5-2006 was positive for the Class II drug Reserpine.

3. A hearing was held by the Judges at Dresden Raceway on July 1st, 2009. Violations of Rules 9.09(b), 26.02.01, 26.02.02 and 26.02.03(c) were found.

4. The principal issue related to assessment of penalty. The suggested minimum penalty for a Class II drug violation according to the Guidelines in ORC Policy Directive No. 1-2008 is a full suspension for one year with a fine of $5,000.00. The Judges imposed a reduced penalty of six months and $3,000 and Ruling SB 40511 issued.

This Hearing

5. Doig filed Notice of Appeal on July 2^nd, 2009. His request for a Stay was denied on July 6^th by the Executive Director. The hearing was set for August 6^th, 2009. At Doig's request it was adjourned and rescheduled to this date.

6. Doig was self represented. He acknowledged awareness of his right to counsel and elected to proceed without adjournment. On this hearing the positive test was unchallenged. The appeal was against penalty only. ORC Senior Judge Paul Dyson was the only witness. He testified that Doig admitted administering the Class II drug, Reserpine five days pre-race by injection. The drug is a sedative or tranquillizer. The horse was described as high strung, having broken two race bikes in post parades, causing recalls plus other undescribed antics.

7. In an informal statement rather than by testimony, Doig outlined his family and personal circumstances. His ORC record is clear. He earned about $20,000.00 a year training and driving on a hobby basis. This year he left his employment in social work and assembled a twelve-horse stable. Since his suspension, he lost seven horses and sold two of which he was a part owner. He described having lost $20,000.00 in the last three months.

8. Doig described having difficulty finding information on Reserpine and its clearance time. He pointed out that Reserpine is not in the CPMA Schedule of Drugs. This is an issue which may require adjustment or explanation. Doig raised the issue of whether Reserpine being a sedative or tranquillizer should be Class III. The evidence was that tranquilizers are usually Class III drugs. The ORC has no capacity to reclassify but the suggestion merits serious consideration.

9. The issue about accessibility of the Penalty Guidelines information was raised. Policy Directive No. 1-2008 provides a ready response: “Class I through IV drugs are based on the Uniform Classification Guidelines for Foreign Substances published by the Association of Racing Commissioners International.”

10. In terms of mitigation, the following were considered:

• Doig acknowledged that for sedative purposes, approximately five days pre-race he administered about 1/2 c.c. of Reserpine. The drug was administered for therapeutic purposes. Quoting from Doig's statement to ORC investigators: "I was using it the way I thought I was supposed to, as a therapeutic drug."
• There was no finding that the drug was administered to improve performance.
• Doig had no prior positive tests in fifteen years as a trainer.
• Doig is a small operator training about twelve horses on his family farm. His statement to investigators was in part: "This is my life. I would never do anything to jeopardize losing my family or my farm."
• Doig was "up front" with the Judges.
• This transgression was inadvertent. There was no intent to break the rules.
• Doig had previously used the drug with no positive test resulting. However, on this occasion, blood was taken instead of urine. The evidence was that Reserpine is more readily identified in blood.

11. An aggravating factor is that the medication had been obtained about four years prior with no recent consultation with a veterinarian about its use.

12. This is an absolute liability offence, an issue of trainer responsibility.

13. The Penalty Guidelines in Policy Directive No. 1-2008, provide, "The Commission may take into account any mitigating circumstances surrounding a positive test and may impose a penalty that is lower than suggested in these guidelines."

14. Consistency is essential in the application of rules. That must be the invariable case in relation to findings of breach of rules. That does not mean that identical penalties must be imposed in all cases. Mitigating factors are legitimate penalty considerations. Their effect is to reduce penalty. In that manner, penalty may be crafted to fit the violation and its circumstances and to fit the violator and his/her circumstances.

15. There is incongruity in imposing a two pronged penalty. Firstly, the licensee is deprived of the opportunity to make a living in his/her chosen trade (and perhaps even elsewhere in this economic climate). Secondly, a substantial fine is imposed with diminished capacity to make payment.

16. The principles underlying imposition of a fine are stated in Gray (SB 021/2007) paragraphs 88 and 89.

17. The fine is properly determined by the degree of responsibility and the gravity of the offence without regard to the wrongdoer's resources. Thereafter that amount is subject to adjustment on consideration of hardship and ability to pay.

18. Returning to the Criminal Code for guidance, Section 73 (2) essentially provides: "a court may fine an offender only if the court is satisfied that the offender is able to pay the fine."

19. The Judges’ Reasons indicate a disinclination to impose their penalty. Evidently they acted in response to reluctant duty. Even though their penalty was less than guideline, it was seen by them as severe. As stated in the Ruling, “We firmly believe that our penalty of 6 months full suspension and a $3,000 along with a two-year probation is a stiff penalty which will have very serious financial and personal consequences for Mr. Doig and his family.”

20. In determining penalty, the Panel considered the Vrablic case, SB 205/2008 and the suggested guideline minimum penalty for Class III drugs (which included most tranquilizers) that being 60 days and a $1,500 fine. In terms of the amount of the fine, the Panel was also mindful, firstly, of Doig’s statement that he was self-represented because he could not afford a lawyer, and secondly, as well as his stated financial repercussions.

21. Penalty is imposed as follows:

The unexpired portion of the full suspension which we calculate to be two months and 26 days will be stayed. Thereby Doig will have served slightly in excess of three months. In the event of a subsequent Class I, Class II or TCO₂ violation that unexpired portion may be added to the penalty. The provision for two years’ probation remains upon the same terms but the commencement date is changed to October 5, 2009. The fine is reduced to $1,500.00. Time for payment to be arranged with the Administration.

DATED this 21^st day of October 2009.

James M. Donnelly

Vice Chair

Attachment

Standardbred Rules

Rule 9.09

Any person is guilty of an offense who:

(b) enters a horse in a race, allows or authorizes a horse to compete in a race that has been administered any drug which results in a positive test.

Rule 26.02.01

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.

Rule 26.02.02

Any trainer who fails to protect or cause any horse trained by him to be protected and a positive test thereby results or who otherwise violates this rule shall be guilty of an offence.

Rule 26.02.03

Notwithstanding 26.02.01, the Commission and all delegated officials shall consider the following to be absolute liability offences:

(c) any trainer whose horse(s) tests positive resulting from testing in accordance with or under the Pari-Mutuel Betting Supervision Regulations;