Ontario
Racing
Commission
RULING NUMBER COM SB 022/2012
COMMISSION HEARING TORONTO, ONTARIO – MAY 17, 2012
IN THE MATTER OF THE RACING COMMISSION ACT S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING BY
STANDARDBRED LICENSEE MIROSLAW CZUPA
On March 15, 2012, Ontario Racing Commission (“ORC”) Judges at Flamboro Downs issued Standardbred Official Ruling No. SB 44628 wherein Miroslaw Czupa (“CZUPA”) was subject to a one year suspension as a consequence of violating Rules 6.20(b), 6.22, and 6.27 of the Rules of Standardbred Racing.
On March 19, 2012, James Evans (“Evans”), counsel on behalf of CZUPA, filed a Notice of Appeal of Standardbred Official Ruling No. SB 44628 and requested a stay of CZUPA’S penalty.
On March 21, 2012, the Deputy Director of the ORC issued Ruling Number SB 30/2012 wherein the request for a stay was denied.
On March 22, 2012, Evans submitted a Notice of Appeal of Ruling Number SB 30/2012.
On April 2, 2012, a Panel of the ORC, comprised of Chair Rod Seiling, was convened to hear the Motion. The Panel rendered an oral decision wherein CZUPA’S request for a stay was denied.
On April 12, 2012, a Notice of Hearing was issued to advise the parties that the appeal of Standardbred Official Ruling No. SB 44628 will be heard on May 17, 2012.
On May 17, 2012, a Panel of the ORC comprised of Vice-Chair Hon. James M. Donnelly, Commissioner Brenda Walker, and Commissioner Dan Nixon was convened to hear this matter.
Evans attended as counsel on behalf of CZUPA. Jennifer Friedman appeared as counsel for the Administration of the ORC.
Upon hearing the testimony of Mike Kwietniowski, Riley McGilloway, Paul Ruhl, David White, Natalie Baumlisberger, Nancy McKenzie, Stephanie Gallant, Rick Rier, Charles Beirnes, Brian Arrand, Dr. Bruce Duncan, Kevin McMaster, Zeljko Krcmar, and CZUPA, reviewing the exhibits and considering the written submissions of counsel, the Panel denied the appeal and ordered
the following:
a) Full suspension of all licensing privileges other than as a groom for one year (March 16, 2012 to March 15, 2013);
b) 2 years probation (March 16, 2013 to March 15, 2015) with the following terms:
i) keep the peace and be of good behaviour;
ii) allow ORC Investigators access to his stabling area at any time to observe horses and for unannounced random searches;
ii) no violations of Rules 6.20 or 6.22 of the Rules of Standardbred Racing;
iii) may be subject to a Notice of Proposed Order by the Director in addition to any penalty imposed by the Judges for any breach of the conditions of his licence.
c) Before being licensed as a trainer following the suspension, Czupa must complete the Standardbred Canada Trainer’s Certification.
The Panel’s Reasons for Decision is attached to this Ruling.
DATED at Toronto this 26^th^ day of June, 2012.
BY ORDER OF THE COMMISSION ______________________________________
John L. Blakney
Executive Director
REASONS FOR DECISION
Standardbred licensee Miroslaw Czupa (Czupa) appeals by Trial de Novo, SB Rulings 44628 and 44629, dated March 15, 2012.
By those Rulings, the Judges at Flamboro Downs found Czupa in violation of Rule 6.20 (b) (misconduct prejudicial), Rule 6.22 (cruelty and neglect) and Rule 22 (misleading investigators).
The penalty imposed was: one year full suspension, March 16, 2012 to March 15, 2013, with conditions on his licence March 16, 2013 to March 15, 2015 as follows:
keep peace and be of good behaviour;
allow ORC Investigators access to stabling area at any time to observe horses and for unannounced random searches;
no further violations of Rules 6.20 or 6.22;
may be subject to a Notice of Proposed Order in addition to any penalty imposed by the Judges for any breach of the conditions of his licence.
The burden of proof is on the Administration. The standard of proof is on a balance of probability with an evidentiary burden of cogent evidence, clear and compelling - ORC v Wallis & Piroski (SB 036/2011).
Three incidents underlie the complaint against Czupa:
o the treatment of the horse, AGU, following racing on February 22, 2012;
o the timing, duration and quality of the training of AGU February 23;
o About November 2011, the horse, “Intended Champion”, being placed and left in the electrically operated walker while lame and in spreaders.
Various witnesses assessed this conduct in light of their knowledge of Czupa’s training methods which were described as harsh and aggressive with military overtones.
The allegation is that after racing at Flamboro Downs February 22, 2012, AGU was trucked to the Manestreet stable and tied in a stall in full harness with hobbles, bridle and ear plugs, with no access to food or water and was left in that situation overnight. The following day, AGU was trained aggressively by Czupa at fast speeds for an extended interval on a heavy track, to obvious exhaustion.
The animus driving this conduct was claimed to be retribution because AGU had “cheated” Czupa by making a break at the starting gate and racing poorly. That the horse performed below Czupa’s expectation was common ground. Czupa’s assessment of the horse’s performance was, “he didn’t race.”
Czupa’s testimony
Czupa denied any mistreatment of the horse. His testimony was that the horse’s legs were sprayed after the race but it was not bathed because of the cold weather. The harness was removed. A cooler was put over the horse. The horse was trucked directly to the Manestreet barn, placed in a stall, fed hay, given water and a blanket replaced the cooler. The horse was put on a chain in the stall. Czupa then left. According to Czupa, the next morning when he visited the stall the horse had a blanket on. It was watered by him but given no hay prior to anticipated training that afternoon.
Czupa described harnessing the horse in the morning of February 23 in preparation for afternoon training. He left, came back hours later, saw hay in the stall and saw the harness had been removed.
According to Czupa, about 1:00 p.m., he took the horse to the track, trained him one trip, about 2:40, 2:45, returned to the barn, thence back to the track to train again. He acknowledged that his practice was to train hard – a strategy that brought success for his stable. He denied any abusive training of AGU on February 23.
In relation to “Intended Champion” being placed in the walker, Czupa said the strategy was to keep the horse using the injured leg. The spreaders were used in the hope that the horse would become accustomed to them and would use them to advantage while racing.
The Administration Case
During the afternoon of February 22, Paul Ruhl, a trainer licensed by the ORC for 40 years, stabled in the same barn as Czupa, watched the horse race on television, knew that it raced badly and expected “ramifications”.
After the race, at about 5:00 p.m., Ruhl observed AGU tied in its stall at Manestreet with no access to food or water. The horse was harnessed in full racing gear.
At 6:11 p.m., February 22, Riley McGillivray, a licensed groom at Manestreet used his blackberry to photograph AGU standing in the stall with full harness. That photograph, with the time printed on its face, was filed in evidence.
About 7:00 p.m., Riley McGillivray again saw AGU tied in the stall in full harness.
Mike Kwietniowski, a licensed driver/trainer for 10 years who stabled at Manestreet, saw AGU in the stall in full harness about 7:00 p.m. on February 22. The horse was tied in a corner with no access to food or water.
About 10:00 p.m., Paul Ruhl checked the stall again, observed AGU chained in the same position, still in full harness.
About 6:00, 6:30 a.m. on February 23, Paul Ruhl saw AGU still tied, still harnessed, still with bridle on and with a bit in mouth and so unable to eat and tied with no access to food or water.
That morning David White saw AGU harnessed and tied in the stall. White, with another person, took the harness off and gave the horse hay and water. White did not tell Czupa that he had removed the harness. Czupa expressed displeasure that the harness had been removed. He saw hay in the stall and was further upset because he did not want the horse to have hay prior to being trained.
Oral evidence by Ruhl, McGillivray and White and the photographic evidence stand in stark conflict with Czupa’s testimony that he removed the harness before trucking AGU from Flamboro to Manestreet on February 22.
In Kwietniowski’s view, Czupa trained aggressively. He commented that the objective should be to train not torture the horse. Kwietniowski testified that he tried to help Czupa to no avail. Czupa’s response by word or action was, “I teach them.”
Kwietniowski witnessed the training episode with AGU on February 23, observing the horse went a “lot of laps” “fast” “on a deep track” and the horse was clearly “stressed and tired”. In cross-examination, Kwietniowski observed: “You don’t do 20 laps with the track four inches deep going as hard as the horse can go the day after a race. The horse should not be pushed, pushed, pushed all the time.”
David White was clearly a reluctant witness in demeanour and speech. That he wanted no problem with Czupa was clear. Whatever his presentation in the witness box, he with another horseman had removed AGU’S harness about 10:00 p.m. on February 23. That action was more eloquent than his oral evidence, particularly when he did not admit his intervention to Czupa.
White described the horse as exhausted during the February 23 training session and described the observers as “disgusted”.
Czupa denied having a whip to train AGU on February 23 although witnesses described him whipping the horse. On February 24, ORC Veterinarian, Dr. Duncan, attended at Manestreet, arriving as Czupa left the training track with AGU. Dr. Duncan observed about 6 welts on AGU’S hindquarter, typical of whip injuries.
Natalie Baumlisberger, a horse owner, observed the training episode on February 23. She described sustained whipping and excessive, prolonged speed to the extent that she called the Humane Society and the ORC seeking intervention while AGU was still on the track.
Nancy McKenzie, a licensed groom for 30 years, witnessed the training episode and described the horse being whipped and driven to obvious distress, sweating with eyes bulging. At one stage she grabbed a baseball bat, went on the track and demanding that Czupa stop, to no avail. She also threatened to call the Humane Society.
Stephanie Gallant also witnessed the training session. She recounted observations similar to those of witnesses Baumlisberger and McKenzie.
The episode with “Intended Champion” occurred at a time not specifically identified in evidence but probably about November 2011. “Intended Champion” was severely lame with a knee suffering an unspecified injury. Czupa tied the horse to an electric walker and left. The horse had spreaders and caught its head in the spreaders, could scarcely walk and was being pushed by the following wing of the walker until someone intervened to free the horse.
There was neither suggestion nor evidence of any conspiracy amongst Administration witnesses against Czupa. Certain of those witnesses described him as a friend and good person. He is referenced as a good worker. Apart from his aggressive training regimen, no fault was suggested. The evidence presented him as a successful trainer and a responsible and competent caretaker, subject only to these incidents and ongoing aggressive training techniques.
The Administration case is impressive. The witnesses expressed concern over having to testify. That reluctance made it unlikely that there was any embellishment. The number of witnesses and the consistency of their evidence in their assessment of the events add force to their testimony.
Czupa’s denial is overwhelmed. The Panel rejects the explanation by Czupa that the welts observed by Dr. Duncan were caused by movement or use of the driving lines. The Panel finds that AGU was deliberately left overnight in the stall, in full harness, with no access to food and water, and was subjected to excessive training measures on February 23 as described by the Administration witnesses. The Panel further finds that underlying Czupa’s action was his discontent over his perception that “the horse did not race.” That animus or underlying cause aggravates the maltreatment of the horse and factors substantially into penalty considerations. Two factors compound the wrongdoing. Firstly, the vindictive element of punishing the horse for failure to perform to expectation. Secondly, punishment extended over a substantial period of time.
The Panel would not attempt to set bounds on training techniques. Opinions will differ; strategies will vary trainer to trainer and horse to horse. The common ground must be that vindictive infliction of abuse and pain is wrong. The concept was sounded in evidence that if the horse was perceived by Czupa to have “cheated” him, there would be consequences. There is no place in the industry for retribution against a horse that has raced below expectation.
In the course of evidence, there emerged reluctance to testify by some witnesses based on apprehension of reprisal. One witness was asked:
Q “Are you afraid of retaliation by coming here?”
A. “Yes I am but it just needed to be done.”
Reprisal against the horse carries significant consequence. Reprisal against a witness would precipitate profound consequences.
Rule 6.27 provides:
“In any investigation or case, whether or not an oath is administered, if the participant knowingly withholds information or misleads the investigators or the Judges, it shall constitute a violation.”
In relation to the issue of misleading Investigators contrary to Rule 6.27, Czupa’s version of the events is rejected by the Panel as apparently it was by Investigators. There is no suggestion in the evidence that Investigators were mislead or deflected into some other investigative channel by Czupa’s stated version of what had occurred.
In my view, the intention underlying this Rule shadows the public nuisance and obstruction concept in criminal law where as a result of misinformation investigators are led into an irrelevant pursuit. If the section is invoked in every case of misinformation, Hearing Panels would be busy indeed. In practically every Hearing, there is a conflict in the evidence, often, but not always, bona fide.
Whether Czupa’s version of the events or that of the Administration witnesses was factual is a credibility/reliability issue for the Panel. Commonplace it is indeed to have conflicting versions, recollections, slants and self-endorsement by witnesses.
A further consideration on the Rule 6.27 issue is that the “misleading” must be “knowingly”. That is, there must be the “guilty act” and he “guilty mind”. The guilty mind is proved by inference from circumstantial evidence. The issue then becomes, “has the correct inference been drawn?” A high standard of evidence, cogent, clear and convincing would be required. All things considered, in my view, the mental element is not proven to that standard.
The misconduct charge adequately identifies the wrongdoing and provides opportunity for appropriate penalty. There is a question of fairness in multiple findings of wrongdoing in a single delict or factual scenario. The clustering of related violations for a single event may not increase the global penalty but it may have serious consequences on an appellant’s record. The ends of justice are appropriately enforced by one finding of fault and one penalty, the gravity of which is commensurate with the violation. Czupa is found to be in breach of Rule 6.20. Because of the penalty contemplated, it is unnecessary to make adjudications on Rule 6.22 and Rule 6.27.
Evidence that witnesses had reports of a horse being struck by Czupa in the stall was too nebulous for consideration. There was no indication permitting assessment of its reliability. There was no evidence of “necessity” in tendering it as evidence. Prejudicial effect far exceeded probative value.
The health and welfare of the horse, both in fact and in public perception, is fundamental to racing and its future. This basic precept was reviewed as recently as the Polifroni Reasons released about the end of May 2012 and need not be repeated.
Simply as an aside, it is unnecessary to discourse on the nuances of “neglect” and “cruelty”. Depending upon degree, neglect can escalate to cruelty.
The penalty must underscore elements of general deterrence for the good of the industry and specific deterrence related to Czupa. Rehabilitation is also addressed in the penalty terms by probation. The overall effect must be denunciation of conduct that has no place in the industry.
A full suspension works a substantial hardship. In order to ease that hardship, Czupa will be eligible to be licensed as a groom during the balance of the suspension period in that he may seek employment in racing while not having full responsibility for horses under his care.
The penalty imposed is a full suspension of all licensing privileges other than as a groom for a year, March 16, 2012 to March 15, 2013 inclusive, there having been no stay of the suspension pending appeal. As well, the following conditions will apply to any ORC licence granted to Czupa from March 16, 2013 to March 15, 2015,:
keep the peace and be of good behaviour;
allow ORC Investigators access to his stabling area at any time to observe horses and for unannounced random searches;
no violations of Rules 6.20 or 6.22;
may be subject to a Notice of Proposed Order by the Director in addition to any penalty imposed by the Judges for any breach of the conditions of his licence.
Before being licensed as a trainer following the suspension, Czupa must complete the Standardbred Canada Trainer’s Certification.
Two mistreatment of horse cases have come forward on appeal in the last few weeks – Polifroni and Czupa. The Polifroni case presented as a reflex action in response to perceived cause. The mistreatment was violent but of relatively brief duration. The Czupa misconduct was in the nature of a sustained course of conduct, hence the longer penalty.
DATED this 26^th^ day of June 2012.
___________________________
James M. Donnelly
Vice Chair