RULING NUMBER COM QH 004/2011

COMMISSION HEARING TORONTO, ONTARIO – DECEMBER 15, 16 & 21, 2011

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

THOROUGHBRED LICENSEE JESSE DAIGREPONT

Jesse Daigrepont (“DAIGREPONT”) appealed against Ruling Number QH 6899/10 wherein the Stewards suspended DAIGREPONT for 2 years (November 18, 2010 through November 17, 2012): “for being guilty on the balance of probabilities of possessing an electrical device in the starting gate for the running of the 6th race at Ajax Downs on May 23, 2010”. The Ruling was issued pursuant to Rules 9.27.03, 15.09.01 and 16.13(c) of the Rules of Thoroughbred Racing.

On November 19, 2010, DAIGREPONT filed a Notice of Appeal.

On December 2, 2010, the Deputy Director of the Ontario Racing Commission (“ORC”) issued Ruling Number QH ADMIN 11/2010 wherein DAIGREPONT’S suspension was stayed “until the commencement of the 2011 Quarter Horse racing season”.

On April 1, 2011, the Deputy Director of the ORC issued Ruling Number QH ADMIN 1/2011 wherein DAIGREPONT was granted a stay of his penalty until July 1, 2011.

On June 20, 2011, the Deputy Director of the ORC issued Ruling Number QH ADMIN 2/2011 wherein DAIGREPONT was granted a stay of his penalty until October 1, 2011.

On September 19, 2011, the Deputy Director of the ORC issued Ruling Number QH ADMIN 5/2011 wherein DAIGREPONT was granted a stay of his penalty until December 31, 2011.

On November 15, 2011, a Notice of Hearing was issued to advise that the appeal will be heard on December 15, 16 and 21, 2011.

On October 20, 2011, a Panel of the Ontario Racing Commission consisting of Chair Rod Seiling, Commissioner David Gorman and Commissioner Dan Nixon was convened to hear the appeal.

Larry Todd attended as counsel on behalf of DAIGREPONT. Jennifer Friedman appeared as counsel for the Administration of the ORC.

Upon hearing the testimony of ORC Stewards Fenton Platts and Neil McCoag, ORC Investigators Rick Grant and Oleh Kupraty, ORC Supervising Veterinarian Dr. Bruce Duncan, Vice President (Corporate Affairs, Ajax Downs) Nick Coukos, Starter Nelson Ham, Association Officials Robert Love and Anthony McDaid, Racing Official Gordon Ross, Jockeys Brian Bell, Edward Walton, Norman Lloyd Desouza, Michelle Raekelboom, and Ramon Dominguez, and DAIGREPONT, reviewing the exhibits filed and upon hearing the submissions of counsel, the Panel dismissed the appeal as follows:

1. The Administration has satisfied the Panel, upon a balance of probabilities, that DAIGREPONT violated TB Rule Nos. 9.27.03, 15.09.01 and 16.13(c).

2. DAIGREPONT is suspended for a period of 5 years, with 3 years stayed. Therefore, it remains a two-year full suspension.

3. The two-year full suspension is effective from the date of this decision (January 5, 2012 to January 4, 2014).

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

DATED at Toronto this 5th day of January, 2012.

BY ORDER OF THE COMMISSION __________________________________

John L. Blakney

Executive Director

REASONS FOR DECISION

Overview:

1. Quarter horse licensee, Jesse Daigrepont, appealed a decision of the Ontario Racing Commission (ORC) Stewards (QH 6899/10) wherein he was suspended for two years commencing on November 18, 2010 to November 17, 2012 for violating TB Rules 9. 27.03, 15.09.01 and 16.13 (c). Mr. Daigrepont was granted stays until such time as a de novo hearing could be convened to consider the matter.

Background

2. Larry Todd, legal counsel for the Appellant, Jesse Daigrepont, objected to the ORC’s legal counsel, Jennifer Friedman’s announced intent to have one of the Commission’s listed witnesses, Jockey Ed Walton, testify via Skype television. Mr. Walton was in New Mexico.

3. Mr. Todd argued that he wanted the witness, Walton, present in person and that he was just notified on December 13 of the proposal. He submitted that Walton could make the 36-hour drive and testify on Wednesday. Ms. Friedman argued this was an exceptional circumstance, that the ORC Rules of Procedure (1.1 (2) (b), permit such testimony, that under those Rules (1.5 (1)) the Panel can vary the Rules to accept it and that she was supported by case law (Ex. 11, a, b, c and d).

4. Mr. Walton had informed Ms. Friedman he was willing to come to Toronto but that it was a 36-hour drive for him and that he had concerns for his horses while away and for his special needs son.

5. After considering the arguments, for and against, the Panel ruled to allow Mr. Walton to give evidence via teleconference Skype as per 1.1(2) (b) and 1.5(1) of the ORC’s Rules of Procedure allow. The Panel went on to state, “This is an exceptional circumstance, while he is willing to come to Ontario it is unreasonable to expect him to drive for 36 hours. That drive would necessitate 3 12-hour days of driving with good weather and then have to turn around with another 36-hour drive to be home for Christmas. This would not be fair or reasonable to Walton and would constitute an unfair and unreasonable situation for his family. This situation could be potentially dangerous for his family and or horses, not to mention himself, given the time of year and potential weather issues.”

6. Mr. Daigrepont was the jockey on horse number 3, Streakin Anywhere, in the sixth race at Ajax Downs on May 23, 2010. There had been rumours circulating at the track about the possibility of the use of electrical machines/devices by riders which is a very serious breach of the Rules of Racing. This could be compared to the use of illegal medications, as the object is the same, to gain an unfair competitive advantage with the same potential negative impacts. Impacts are all the more real for Quarter Horse Racing which is trying to establish itself in the marketplace.

7. Prior to the start of the 6th race, after being loaded into the gate, the horse “became violent” trying to flip, notwithstanding the horse was outfitted with a flipping halter, to prevent such an occurrence. The horse’s actions were out of character as even as a 2-year-old, the horse was okay in the gate according to Jockey Michelle Raekelboom who rode her then and two months later when Jockey Brian Bell was aboard her. A video replay of the race confirmed the violent actions by the horse in the gate in stall 3. According to starter Nelson Ham, the owner of the horse, Roger Girard, directed that all his horses race with the flipping halter.

8. This behaviour forced Gordon Ross, the tailer on the gate crew, to pull Mr. Daigrepont out the back end of the gate to keep him from being injured. Mr. Ross found it odd that the Appellant did not want out of the gate as opposed to other jockeys in similar circumstances whose first instinct is to get out ASAP, to avoid injury. He had “to reef him off” the back of the horse. With the discovery of the device inside stall 3 (Streakin Anywhere’s stall position), he said the whole puzzle came together for him as he believed that the Appellant shocked the horse in the stall and then dropped the device. Mr. Daigrepont did get back onto the horse in the gate and the race took place as programmed.

9. Jockey Brian Bell, as was the Appellant, of the opinion that one would not want to use a device in the stall of the gate. Such action would make the horse go crazy and try and flip. However, Steward Neil McCoag said there are differing opinions as to when would be the best time to use the device and that included in the stall of the gate with the aim to time the opening of the gate.

10. Following the running of the race and after the starting gate had been moved, starter Nelson Ham, as he normally did, proceeded to walk to the immediate area of the track where the gate had been located for the race. When he reached the spot where Streakin Anywhere was positioned as the number 3 horse, Mr. Ham found an electrical device (machine). By referencing the marks on the ground and referring to his race program, he was able to identify that the device was located where Streakin Anywhere was loaded in the #3 stall of the starting gate. Mr. Ross accompanied Mr. Ham and confirmed the discovery and the exact location of the device. Referencing his testimony that he was sure the device was in the #3 stall versus his interview wherein he said it was in either the 4,5 or 6 stalls, he said he could not remember which stall the Appellant was in that day given the time lapse from the interview to the race. Mr. Walton found it “weird the device was found exactly where Jesse was pulled off”.

11. Mr. Ham, because of the good condition of the device, with virtually no dirt on it, was convinced it had to have come from the just run 6th race. Mr. Todd submitted that with the amount of dirt kicked up by the horse in the stall one would expect that the device should have dirt on it. Track superintendent, Anthony McDaid, confirmed that the track had been harrowed prior to the 6th race. Due to the spacing of the harrow’s tynes, it would ensure that the device would not have been moved to the position where it was found and be in such a good and clean condition.

12. Upon discovery of the device, Mr. Ham summoned ORC Steward, Fenton Platts, down to the track area to inform him what he had found and where. Mr.Platts confirmed there had been rumours about the Appellant using a device. The discovery confirmed it. Mr. Walton had information from an owner whose name he would not reveal that an owner had employed Mr. Daigrepont to ride with a device. There had also been other jockeys named in those rumours but none of them was riding in the 6th race. The trainer/owner combination for Streakin Anywhere, Clint Crawford and Roger Girard was also associated with those same rumours.

13. On being shown a device in the Hearing, Platts said it was the same as the one handed to him by Mr. Ham on the 23rd except for the colour. Notwithstanding Mr. Platts’ belief it was grey, Mr. Ham, Mr. Ross and Investigator Rick Grant all confirmed the device shown at the Hearing which was covered in black tape was identical to the one Mr. Ham found on the track that day. Mr. Grant confirmed that the device shown was the actual device save and except for the black tape on it that he used to put it back together after examination of it by the OPP forensic lab. Mr. Grant had in his possession the actual black tape that was on the device when it was found and had been removed by the OPP for fingerprinting, both outside and inside the device. No fingerprints were found on the device by the OPP.

14. As per Dr. Bruce Duncan, Supervisor of Veterinarians for the ORC, it is a violation of the Rules of Racing (TB 9.27.03) to use or have such a device or machine anywhere on the licensed premises of a racetrack as it is dangerous to the health of the horse and can affect performance as the purpose in shocking the horse is to make it run faster. On viewing the video of the horses in the gate prior to the start of the race, he confirmed the violent action of the horse adding that a possible outcome of being shocked in the gate was the horse rearing and possibly fracturing its skull. There was no debate that this is a cruel practice to the horse as expressed by Dr. Duncan and a number of other witnesses.

15. The Stewards turned the device over to ORC investigators, Rick Grant and Desmond Waithe on May 30, 2010, who then commenced an investigation into the discovery of the device on the track. That investigation started with interviewing five jockeys that same day. They were the Appellant, Ramon Dominguez, Tony Philips, Brian Bell and Jeffrey MacLaren.

16. Mr. Grant is an experienced investigator with many years of police experience as an investigator that included training investigators in the techniques of investigation. That training encompassed learning what to look for in body language of those being interviewed as to their truthfulness.

17. Mr. Coukos, Vice President of Corporate Affairs for Ajax Downs, confirmed that there were rumours circulating about the use of a device by jockeys at the track. He had concerns about the impacts of those rumours on the sport’s integrity; that the use of a device was cheating and it was cruel to the horse. Mr. Grant found Mr. Coukos to be truthful when interviewing him.

18. Mr. Coukos had a conversation with Jockey Michelle Raekelboom at Ajax Downs. He believed that in responding to his query about the use of devices in the races, she was being truthful. She told him she knew Jesse Daigrepont was using one. Her fiancé, Robert Love, was present for some of that conversation.

19. Ms. Raekelboom, at the Hearing, denied saying to Mr. Coukos she “knew” but rather she suspected the Appellant might be using a device. Mr. Grant was of the opinion she was evasive and did not want to answer questions during his interview of her regarding the device. Mr. Love supported her in that regard when giving his evidence that she did not say she “knew”. During his interview with Mr. Grant, he told him (Grant) that he thought she did name the Appellant but he was not 100% certain. Mr. Grant felt Mr. Love was truthful when he was being interviewed. The demeanour of both Raekelboom and Love at the Hearing, when giving their evidence, could be described as being noticeably uncomfortable.

20. Jockey Norman Lloyd Desouza, who was unable to attend as summoned due to an alleged immigration matter, gave his evidence by agreement with the parties via telephone. Mr. Desouza, told the investigators he suspected Mr. Daigrepont of using a device. He testified that “Jesse” is a friend of mine and that there were rumours circulating about him using a device. Regarding rumours, he said “some are true, some are not true.” Those same rumours implicated the Crawford/Girard stable of doing something illegal.

21. Ms. Raekelboom and Mr. Bell did implicate Jockey Tony Bennett as having a device at the track. Mr. Daigrepont claimed not to have seen a device in Ontario but had seen them in the United States. This occurred in 2009 when Mr. Bennett was riding for the Crawford/Girard outfit. Mr. Walton had provided information that Bennett was in possession of a device at that time as Bennett told him after a race where he had allegedly cut Walton off in a race that he wished he had two devices on him. The inference being that horse reacted to the device by running away from the shock is a real possible outcome of its use.

22. Mr. Bell named the Appellant as having a device when being interviewed saying, “I do not want to be a rat but this is all about safety.” What is remarkable in this matter was the willingness of the jockey colony to come out and name a person involved in such alleged illegal activity under the Rules of Racing. While very frustrating and incomprehensible, the jockey colony is a closed society and very rarely will they be forthright about what they see or know as it relates to their interaction at the track. This is somewhat understandable as they compete against each other day in and out in a very dangerous sport. They rely on each other for their lives where mere inches can be the difference between being unseated and a safe ride. Intimidation is part and parcel of the sport just as it is in most sports, the difference being the degree. The Appellant was named by Ms. Raekelboom, Mr. Walton, Mr. Bell, Mr. Dominguez, Mr. Desouza and the confidential informant as either using or being suspected of using a device. None of them either saw him in possession of or actually using a device.

23. Mr. Dominguez did not agree there were rumours circulating about the Appellant using a device. He did point to the Appellant that he suspected that he was using a device. Rumours are an ongoing phenomenon at every racetrack. Many originate or are targeted at those doing well so they must be doing “something”. Many are just unfounded perceptions.

24. Mr. Bell agreed with Mr. Todd that rumours are natural at the track related to jockeys and or stables doing well and therefore they must be doing “something”. Mr. Daigrepont expressed the same opinion. Within a month of the device being found, Mr. Bell benefited from the Appellant’s demise of riding for the Crawford/Girard stable as they fired him ostensibly because of the rumours. They were the connections of Streakin Anywhere on May 23, 2010. On becoming the rider for that stable, he made a run for leading rider at the meet. Mr. Daigrepont confirmed Mr. Bell’s assertion that rumours then started that he was using a device. Mr. Dominguez and Steward Platts were not aware of those supposed rumours. Crawford and Girard had one of the best, if not the best stable of horses racing at Ajax. Given that quality, it would follow that they should win their fair share of races and total purses.

25. Mr. Walton stated he was aware that an owner had the Appellant use a device in a race. He provided that information on a confidential basis to the investigators to assist them but would not provide anymore information in his testimony. He was also aware that Tony Bennett had used a device in a race while riding for the Crawford/Girard stable.

26. ORC investigator, Oleh Kupraty, received information re devices at Ajax from a confidential informant who had proven reliable in the past. Ninety percent of the allegations regarding use of a device pointed at the Appellant. That information came in October of 2010 and June of 2011. Re the former, it was alleged the Appellant was using a device and that he hid the device in his sleeve. Regarding the latter, that he dropped a device in the stall of the gate at the start of a race. He did not provide any disclosure at the Appellant’s Hearing as he was not aware of it. The informant, just as all the other witnesses, never saw the Appellant actually possess or use a device. Mr. Kupraty would not reveal the identity of the person who provided the information nor did Mr. Todd try to have him breach the confidential informer privilege. For a similar reason, he would not provide a redacted copy of his report because the language used by the informant would reveal the identity. Revealing the name of the person who was the source of information to the confidential informer would create a similar result.

27. The Appellant literally had to be dragged off the horse by Gordon Ross, one of the tailers on the gate crew. Mr. Daigrepont did not ask to be taken off the horse nor did he want to come off the horse claiming that he was safest remaining there on the horse. Mr. Ross did not see Mr. Daigrepont in possession of a device at any time. The area where the device was found was the same area where the Appellant was unseated from the horse. Mr. Ross would not see a device being dropped by anyone as he concentrates on the horse and rider prior to the race. This forces him to look straight ahead, not down. Mr. Ham found the device in the immediate area of the number 3 horse wherein the rider was the Appellant, Mr. Daigrepont.

28. The video patrol film of the race was sent to the Centre for Forensic Sciences for enhancement. That process was unsuccessful. The video on hand does not show the Appellant in possession of or use the device or any one else at any time.

29. Mr. Daigrepont denied ever having in his possession or using a device on May 23, 2010. The rumours about his using a device were based on jealously due to his success. He rode the horse, Streakin Anywhere, on May 9, 2010, and won the race. The horse was “a little rowdy” in the gate prior to the start. For the May 13, 2010 race, he rode the horse “bare handed”.

Issue

30. Did Mr. Daigrepont violate the Rules of Racing by being in possession of or use a device at Ajax Downs on May 23, 2010? What should be the appropriate penalty?

Decision

31. After consideration of all the relevant evidence and based upon an analysis of that evidence set out in these reasons, the Administration has satisfied this Panel, upon a balance of probabilities, that Mr. Daigrepont violated TB Rules Nos. 9.27.03, 15.09.01 and 16.13 (c).

32. In terms of penalty, the Panel varies the penalty, He is suspended for a period of 5 years, with 3 years stayed, therefore it remains a two-year full suspension.

Reasons for Decision

33. The abundant hearsay evidence requires comment. ORC procedural rules permit its acceptance in evidence. The use and weight thereof is determined by the Panel according to the relevant circumstances.

34. The rumour evidence was admitted not as proof of the truth of its content but to demonstrate its widespread existence in the backstretch community. Neither its consistency nor its multiple sources add to its reliability. That backstretch perception has the potential to cast a shadow on the integrity of racing and so it is an issue requiring examination, and more so once the finding of the device adds substance to the rumours.

35. The findings of fact are neither based on nor influenced by the rumours.

36. Witnesses Grant, Coukos and Kupraty testified as to their belief in the reliability of certain information provided to them. Grant professed some training in the interpretation of body language as indicative of truthfulness or otherwise. They are entitled to make those assessments in relation to the investigative process. Their acceptance of certain information will influence the course of their investigative procedure.

37. At the hearing stage, their opinions on the credibility of evidence at the Hearing are irrelevant. Firstly, whether body language is an indication of truthfulness or not, it is not an indication of reliability. That is, the witness may be perfectly truthful but absolutely mistaken.

38. Secondly, lie detector evidence of truthfulness is not in itself admissible. If electronic and measurable human response is inadequate, why is the subjective observation analysis and conclusion of an observer more reliable?

39. Thirdly, the assessment of evidence in terms of credibility and reliability is the responsibility of the finder of fact. Demeanour which embraces the elements of body language is but one fact, a minor factor and one to be applied with abundant caution. The art of deceit is high level and widespread. Accomplished “con men” are no strangers to society.

40. Fourthly, the assessment of evidence is based on life experience and commonsense applied to the entire evidence. With conflicting evidence under oath, it would be wrong to assess an individual’s evidence in isolation; that evidence must be tested for internal and external consistency in the light of the entire evidence. It must be viewed in the context of other evidence which is accepted as truthful and reliable.

41. That opinion evidence relating to truthfulness was not a component in the Panel’s fact finding. As referenced in relation to the Raekelboom and Love evidence, the Panel did consider the demeanour of witnesses.

42. The standard of proof is on a balance of probabilities with the onus of proof on the Administration of the ORC.

43. Before any adverse findings can be made against the Appellant, Mr. Daigrepont, the evidence must be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test as per F.H. McDougal 2008 SCC 53, [2008] 3 S.C.R. 41.

44. Under Rule 9.2 of the Ontario Racing Commission’s Rules of Procedure, the Commission, at a Hearing, “may admit any evidence including hearsay, relevant to the subject-matter of the proceeding.”

45. There is no evidence that directly links the Appellant to the device, no one ever witnessed Mr. Daigrepont have in his possession or use a device at Ajax Downs.

46. As per Vice Chair Donnelly in Wallace/Piroski (Ruling No. SB 036/2011), “Proof by circumstantial evidence is proof of the fact in issue by rational inference from other proven facts. The more circumstances, the more important and independent they are, the more strength there is to the circumstantial evidence. That evidentiary standard requires the trier of fact to examine the items of evidence separately and to assess them collectively. Lacking any credible direct evidence, does this evidence, properly assessed, meet the standard and burden of proof required of the Administration?”

47. The Panel has carefully examined each part of the overwhelming circumstantial evidence. It is clear, convincing and cogent. When assessed collectively, on a balance of probabilities, Mr. Daigrepont was in possession and likely used the device on May 23, 2010, prior to the start of the 6th race at Ajax Downs. Such use, whether inadvertent or intentional, caused the horse Streakin Anywhere to react violently in the gate causing the Appellant to become unseated wherein it is reasonable to conclude he dropped the device.

48. Therefore, Mr. Daigrepont violated TB Rules Nos. 9.27.03, 15.09.01 and 16.13 (c).The Administration’s credible circumstantial evidence was supported by other independent credible evidence that, when assessed collectively, leads to that reasonable conclusion.

49. That independent evidence was as follows:

• There was no dispute that a device was found on the track after the 6th race.

• Starter Ham, tailer Ross and investigator Grant all confirmed the device displayed at the Hearing was the same as the one found on May 23, 2010 at Ajax Downs following the 6th race. That Steward Platts thought it had a grey cover is irrelevant. The device he turned over to Mr. Grant was confirmed by two separate and independent witnesses as the device located on the track May 23, 2010. It was covered with black tape, the same as the one identified independently by both Ham and Ross. It also speaks to what people recollect they saw and the fact it was a year and half from the incident it is reasonable to conclude he just forgot.

• Independent supported testimony as to the exact location of the device by starter Ham, confirmed by tailer Ross, pinpoints the location as stall 3 in the gate, the assigned stall for Streakin Anywhere with Daigrepont as the jockey

• The device had to have been dropped after the 6th race given its condition. The track is harrowed after each race and such activity would have altered its condition; nor could the harrow have dragged it up from some other location and it remained in the good clean condition it was discovered in.

• The device was inside the stall, it would have been virtually impossible for any other jockey to have dropped/thrown the device into stall 3 without detection given the number of riders and gate crew all located within the relatively tight confines of the gate.

• Mr. Daigrepont’s unwillingness to be helped out of the stall when the horse was trying to flip as opposed to the natural inclination to “get out ASAP”.

• With the objective of using a device to gain an unfair advantage, it is reasonable to conclude the Appellant was trying to time the gate and hit the filly or the more likely scenario he accidentally shocked her causing her violent action in the gate.

• Testimony from Jockey Bell that if the horse was shocked in the stall it would go crazy and try to flip thus a virtual replay of Streakin Anywhere’s antics in the gate prior to the race.

• The evidence that the horse’s erratic and out of character behaviour in the starting gate was consistent with the use of a device.

• The horse was not a “bad actor” in the gate but did act up in the paddock; the fact the horse wore a flipping halter is irrelevant as owner Girard ensured all his horses raced with one.

50. The Appellant denied having the device. Considerations bearing on the truthfulness and reliability of that statement include:

• The extent of the erratic conduct of the Appellant’s mount.

• Any gate misconduct was uncharacteristic of the horse.

• The conduct of the horse had the potential to contribute to such a device being dropped.

• The conduct of Appellant in having to be dragged off the horse. The invariable industry response is to seek temporary safety elsewhere and immediately.

• The confined space in the starting gate and the device being found in the location of starting stall #3.

• The timing of the finding of the device almost immediately after the gate incident.

• The fact that the device showed no sign of being exposed to the track harrowing after each race.

• The absence of other explanation.

• The absence of indication of any other jockey being involved.

51. The circumstances tell against the Appellant’s denial. They constitute cogent evidence, clear and convincing, implicating the Appellant. Those facts as found and accepted by the Panel support and require a finding on a balance of probabilities. The Appeal against the finding of a rule breach must be dismissed.

Turning to penalty

52. Just as Mr. Bell said, you can tell a way a horse runs if a device is being used. The jockey colony, albeit not all of them at Ajax Downs, was united in their identification of the Appellant as the person using a device.

53. That Mr. Daigrepont’s fingerprints were not discovered on the device is irrelevant because no prints were found according to the OPP. It is reasonable to assume that at the very least Mr. Ham’s prints along with others associated with the ORC would have had their fingerprints found on the device.

54. Virtually every witness viewed the use of a device as cheating. That very fact goes to the heart and soul of horse racing, its integrity. In this regard, we are supportive of the position the Panel adopted in Chiaravelle [2008] O.R.C.D. No. 18, Ruling Number Com SB 027/2008 wherein it states at para 80, “The public interest centres on the overall well being of racing. Cheating erodes wagering which carries the industry in the broad sense of participants, suppliers and the massive rural infrastructure.” And Martino, [2000] O.R.C.D. No. 20 Series No. SB 178/2000 wherein that Panel wrote at para 27, “Horse racing must be conducted and be seen to be conducted with the utmost integrity. The future of the industry depends on maintaining the public’s confidence that it is being operated totally “above board”. And at para 28, it referred to the case of the Alcohol and Gaming Commission in the case of Kristine Elizabeth Cowan, File No. 67729, June 2, 1999 and adopted by this Commission in the case of Frank Pugliese, SB 18/2000, January 28, 2000:..” The Gaming Control Act and the mandate of the Commission are predicated on the need to protect the public interest in lawful regulated gaming through constant vigilance and the exclusion of those who could reasonably be expected to seek improper gain or to in any way stray from the highest standards of honesty and integrity and thereby bring the industry into disrepute. Consequently those who would benefit from participation in this industry must meet and be seen to meet rigorous standards of behaviour.

55. Daigrepont’s actions, when compared to the above standard fail. In coming to this conclusion, the Panel is mindful of the high standard of justice required as it relates to one’s profession as per SCC in Kane v UBC, 1980 CanLII 10 (SCC), 1980 1 SCR 1105. Notwithstanding the penalty will affect his ability to earn a living from racing and or his reputation, he should not prevail to the detriment of an entire industry where thousands of jobs and millions of dollars of investment have been put “at risk” by his poor judgement.

56. In arriving at its conclusion, the Panel was mindful of Bernstein, 1997 15 O.R. (28) 447, wherein at para 152 the Court stated, “In all cases reaching a conclusion of fact, the tribunal must be reasonably satisfied that the fact occurred, and whether the tribunal is so satisfied will depend on the totality of the circumstances including the nature and consequences of the fact or facts to be proved, the seriousness of the allegation made, and the gravity of the consequences that will flow from a particular finding... The evidence to establish the charge had to be of such quality and quantity as to lead the Committee acting with care and caution to the fair and reasonable conclusion that he was guilty of the charge”. At para 154 of that the same decision the Court went on to state, “Of course context is all important and a Judge should not be unmindful where appropriate of the inherent probabilities or improbabilities of the allegations or consequences. However, these considerations do not change the standard of proof.”

57. The evidence is both “credible and reliable” (Ruling No. COM SB 036/2011, para 152) as to the fact that a device was found on the track and that it had to be there from the 6th race given its good condition, that its location was pinpointed by independent credible witnesses, that location was where the Appellant was located in the gate, the horse acted violently, out of character indicating something had to make it react, that the Appellant, out of character for every other jockey did not want off the horse for obvious safety reasons for himself, and, the jockey colony named him despite its acknowledged close-knit nature. The totality leads one to a reasonable conclusion there was a rule violation by the Appellant on May 23, 2010 in the 6th race at Ajax.

58. It is not surprising to see “backtracking” by some of the witnesses which Mr. Todd characterized as “contradictory”. It is a by-product of the “colony” atmosphere in the jockeys’ room and one that has played itself out at hearings before this Commission.

59. In terms of seriousness of the violation, the use and or possession of a device equates to a Class I or II medication rule violation and should be treated the same from a penalty perspective. A device as with the case of an illegal medication, the object is to gain an unfair competitive advantage with a potential threat to the health and welfare of the horse. Under the Uniform Penalty Guidelines, a first time offence the suggested penalty is 1 to 5 years plus a $5,000 fine.

60. Penalties are a deterrent to violations of the Rules. One size does not fit all. They must relate to the seriousness of the Rule breach and be sufficient to both serve as warning to others who might contemplate a Rule breach while at the same time penalizing the offender.

61. That Mr. Daigrepont’s Rule breach is of a very serious nature goes without saying. He was cheating the public, cheating other industry participants and putting the health and safety of the horse at risk. His peers all were of the opinion that the penalty should be harsh with many opting for a lifetime ban. Moving to a penalty structure mirroring Class I and II medications is reasonable and fair. Given the Appellant’s good record over a period of 25 years, a stay of 3 years is appropriate. The 2 years run from this date. No financial penalty is deemed warranted.

DATED this 5th day of January 2012.

Rod Seiling

Chair