Randy Marriage v. Ontario Racing Commission, 2011 CanLII 98232

COMMISSION HEARING TORONTO, ONTARIO – APRIL 27, 2011

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

Standardbred Licensee Randy Marriage (“Marriage”), appealed Ruling SB 43529, dated March 18, 2011, wherein he was suspended from March 27, 2011 to March 26, 2012, and fined the sum of $5,000 for violation of Rules 9.09(b), 26.02.01, 26.02.02 and 26.02.03(c) of the Rules of Standardbred Racing.

The appeal was heard on April 27, 2011, by a Panel of the Ontario Racing Commission consisting of Chair Rod Seiling.

Angela Holland appeared as counsel for the Administration. Marriage appeared in person and was self-represented.

Upon reviewing the exhibits filed, and upon hearing the submissions of counsel for the Administration, and of Marriage, the Panel allowed the appeal and varied the penalty as follows:

i. The suspension is reduced to 2 months (March 27, 2011 – May 26, 2011), with the remaining 10 months stayed; and

ii. The fine is reduced to $2,500.

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

DATED at Toronto this 28th day of April, 2011.

John L. Blakney

Executive Director

Overview

Standardbred licensee Randy Marriage appealed a decision of the Judges SB 43529 wherein he was suspended for a period of one year (March 27, 2011 to March 26, 2012) and fined $5,000 for violating SB Rules Nos. 9.09 (b), 26.02.02 and 26.02.03 (c) as a result of a positive test for the drugs methamphetamine (Class I), amphetamine (Class I), ephedrine (Class II), pseudoephedrine (Class III), and norpseudoephedrine taken from the horse Mischievous Luck in its race at Western Fair on February 16, 2011.
An oral decision was rendered at the hearing with written reasons to follow. The suspension was varied to two months with the remaining 10 months stayed and the fine was reduced to $2,500. The conditions, as applied by the Judges, remain. Mr. Marriage did not ask for a stay, therefore his suspension commences from the date of the suspension in the Judges’ Ruling, March 27, 2011.

Background

Angela Holland, legal counsel for the Ontario Racing Commission (ORC) and Mr. Marriage who was acting on his own behalf presented the Panel with an agreed statement of facts (Ex. 5)
Mr. Marriage filed his appeal on the basis that the penalty was too harsh claiming there were mitigating circumstances.
Mr. Marriage stated that the horse, prior to its race was looked after for him by his brother as he was away for the weekend. His brother has a record of substance abuse but denied giving the horse anything.
Ms. Holland referenced an email from Dr. Michael Weber, Manager of Veterinary Services with the Canadian Pari Mutuel Agency (Ex. 4) which she stated confirmed the drugs found were “homemade meth” and that there was no therapeutic value in them for the horse.
Ms. Holland confirmed the rule violation was an absolute liability category but that there were mitigating circumstances in her opinion, and referenced the Huarte decision, TB 016/2010. She opined that the Administration did not have the power to vary the penalty, a penalty which followed the ORC Penalty Guidelines (Policy #1/08) but believed a reduction along those granted to Mr. Huarte (fine halved and suspension reduced 2/3rds with the rest stayed) would be appropriate.

Reasons for Decision

Mitigating circumstances in this appeal far outweigh the aggravating circumstances. In as much as this is an absolute liability rule violation, Mr. Marriage does bear the ultimate responsibility for the positive test and there should not be an absolute “get out of jail free” card in this case. He was aware of his brother’s past history with the abuse of drugs when he decided to leave him to care for the horse in his absence and therefore bears that responsibility, a responsibility that resulted in a positive test including a number of Class I and II drugs, drugs that have no business being administered to a horse.
Mitigating factors in favour of the variance are as follows:

He was co-operative and forthright
He did not claim the usual “I don’t know how” explanation
His previous clean record
He was remorseful
Dr. Weber’s support (no advantage for administration)

The additional variance from the Huarte decision is warranted in as much as Mr. Marriage did not attempt to claim total unawareness as to how the positive test occurred as noted in Investigator Caesar’s notes in Exhibit 1, tab 11. His co-operation and forthrightness is duly noted.

DATED this 28th day of April 2011.

Rod Seiling

Chair