RULING NUMBER COM SB 038/2013
COMMISSION HEARING TORONTO, ONTARIO – SEPTEMBER 23, 2013
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL OF DANIEL L. CREIGHTON
Daniel L. Creighton appealed against Ruling Numbers SB 44545 and SB 44546.
Date of Hearing: September 23, 2013
ORC Panel: Vice Chair Anthony Williams
Counsel for Appellant: James H. Cooke
Counsel for the Administration: Jennifer Friedman
The Appeals against the Rulings were withdrawn.
The Appeal against Penalty was allowed in part, on consent.
The Panel’s Reasons for Decision is attached to this Notice.
DATED at Toronto, Ontario, this 2nd day of October 2013.
Steven Lehman
Executive Director
REASONS FOR DECISION
Overview
1Daniel L. Creighton (“Creighton”) was the trainer for a racehorse which tested positive for codeine and morphine.
2A panel of track judges (“judges”) found Creighton guilty of an offence contrary to the Rules of Standardbred Racing (“SB Rules”), 9.09 (a) and (b) and 26.02.01 and 26.02.03.
3The penalty imposed inter alia was a fine of $5,000, a one year full suspension and two years probation upon conditions.
4Creighton appealed against these decisions to the Ontario Racing Commission (“ORC”).
5A panel of the ORC, consisting of Anthony Williams, Commissioner, was convened to hear the appeal.
The Hearing
6A “trial de novo” or new trial was heard by this panel on September 23, 2013.
7James H. Cooke represented Creighton as counsel.
8Jennifer Friedman represented the Administration of the ORC (the “Administration”), as counsel.
9On consent, at the Hearing, counsel filed an “Agreed Statement of Facts and a Proposed Joint Submission on Disposition”.
10The Agreed Statement of Facts is as follows:
“AGREED STATEMENT OF FACTS
The Licensee, Daniel L. Creighton ("CREIGHTON"), who has been advised by his counsel, and counsel for the Administration of the Ontario Racing Commission ("ORC") agree to the following facts in relation to Ruling Numbers SB 44545 and 44546:
CREIGHTON is licensed with the ORC as a Driver/Trainer/Owner (license #C20176).
On June 17, 2012, the horse, Quantum Cashman (tattoo #6F904), participated in the 7th race at Clinton Raceway and finished 1st. At all material times, CREIGHTON was the trainer of Quantum Cashman.
Subsequent to the race, Quantum Cashman was selected to provide a urine sample for testing, which sample was assigned laboratory number B201726-80861, sealed, and shipped for analysis.
On June 26, 2012, Maxxam issued a Certificate of Positive Analysis for Quantum Cashman for the class I drugs, Codeine and Morphine.
On July 1, 2012, the Judges notified CREIGHTON of the positive test, and issued Standardbred Official Ruling Number SB 44536 wherein Quantum Cashman was rendered ineligible to race for 90 clear days.
On July 5, 2012, the Judges informed CREIGHTON about the process for obtaining a split sample.
On August 30, 2012, the Commonwealth of Pennsylvania, Department of Agriculture, issued a Positive Drug Test Result confirming the presence of Morphine and Codeine.
On October 30, 2012, the Judges held a Positive Test Hearing.
On November 2, 2012, the Judges issued Standardbred Official Ruling SB 44545 wherein CREIGHTON was fined $5000 and subject to a one year full suspension (November 11, 2012 to November 11, 2013) for violating Rules 9.09(a), 9.09(b), 26.02.01, and 26.02.02 of the Rules of Standardbred Racing (“SB Rules”) as a consequence of the positive test.
On November 2, 2012, the Judges also issued Standardbred Official Ruling SB 44546 wherein terms were imposed upon CREIGHTON’s licence for a two-year period, in accordance with Policy Directive No. 3-2008.
On November 2, 2012, CREIGHTON advised the Judges of his intent to appeal Standardbred Official Rulings SB 44545 and 44546
On November 6, 2012, the Deputy Director issued Standardbred Ruling Number S.B. 120/2012 wherein CREIGHTON was granted a conditional stay of his penalties, including that the Hearing shall be heard prior to December 31, 2012.
On November 8, 2012, CREIGHTON submitted a Notice of Appeal.
On November 26, 2012, a Notice of Hearing was issued to inform the parties that the Hearing would be held on January 24, 2013.
On December 19, 2012, Commissioner John Macdonald convened a Pre-Hearing teleconference in connection with CREIGHTON’s request for further disclosure.
On January 7, 2013, counsel on behalf of CREIGHTON filed a Notice of Constitutional Question vis-à-vis the constitutional validity of Rule 26.02.02 of SB Rules.
On January 30, 2013, the Ministry of the Attorney General – Constitutional Law Branch advised that it would be seeking intervenor status in relation to the constitutional question.
On January 19, 2013, Commissioner John Macdonald issued an electronic endorsement.
On February 22, 2013, a Notice of Hearing was issued to inform the parties that a hearing would be held on April 15, 16, and 17, 2013.
On March 5, 2013, counsel on behalf of CREIGHTON filed a Notice of Motion to be heard vis-à-vis an Electronic Motion on March 20, 2013.
On March 19, 2013, counsel on behalf of CREIGHTON sought an adjournment of the Electronic Motion scheduled for March 20, 2012. Instead of adjourning the Motion, the parties consented to the Motion being considered in writing.
On March 22, 25, and 27, 2013, written submissions in connection with the Motion were filed by counsel of behalf of CREIGHTON, counsel on behalf of CPMA, and counsel on behalf of the Administration of the ORC respectively.
On March 26, 2013, an Amended Notice of Hearing was issued to inform the parties that the Hearing would be held on April 22, 23, and 24, 2013.
On April 8, 2013, a Ruling was issued in connection with the Motion for Disclosure.
On April 9, 2013, counsel for CREIGHTON requested an adjournment of the Hearing scheduled to proceed on April 22, 23, and 24, 2013.
On April 11, 2013, a Ruling was issued granting the adjournment.
On May 21, 2013, an Amended Notice of Hearing was issued to inform the parties that the Hearing would be held on September 23, 24, and 25, 2013.”
11The Joint Submission on Disposition is as follows:
“JOINT SUBMISSION ON DISPOSITION
CREIGHTON, who has been advised by his counsel, and counsel for the Administration of the ORC agree that the following disposition, in relation to Ruling Numbers SB 44545 and 44546, is appropriate in these circumstances:
Whereas this Licensee has a prior adverse ORC record in 2008 for a positive test for Penicillin;
And Whereas, as trainer, CREIGHTON bears ultimate responsibility for the care, control, condition, and safety of Quantum Cashman.
And Whereas a positive test is an absolute liability offence, which is expressly provided for in SB Rules.
And Whereas, pursuant to SB Rules, CREIGHTON is responsible for the positive test for Quantum Cashman.
And Whereas there were departures from standard operating procedures in the taking of Quantum Cashman’s sample;
And Whereas there is no cogent, clear, and concise evidence that CREIGHTON administered any drug which resulted in the positive test showing the presence of Codeine and Morphine:
1.) The appeals of Ruling Numbers SB 44545 and 44546 are hereby withdrawn;
2.) SB Rules 6.13.01, 9.09, 18.08.01, 26.02.01, 26.02.02 and 26.02.03 are engaged;
3.) CREIGHTON is disentitled to the purse monies and trainer/owner fees. All purse monies and trainer/owner fees are to be returned and redistributed;
4.) CREIGHTON is suspended for a period of twelve (12) months;
5.) Six (6) months shall be the subject of an immediate stay;
6.) CREIGHTON is suspended from September 25, 2013 to March 24, 2014 inclusive;
7.) CREIGHTON is fined ten thousand dollars ($10,000), which fine is payable within thirty (30) days;
8.) Five thousand dollars ($5,000) shall be the subject of an immediate stay;
9.) All horses, owned or controlled, in whole or in part, by CREIGHTON or trained by CREIGHTON or under his care are subject to SB Rules.
10.) CREIGHTON is placed on probation for a period of two (2) years (March 25, 2014 to March 24, 2016 inclusive) with the following conditions:
i. CREIGHTON shall keep the peace and be of good behaviour;
ii. CREIGHTON shall allow Commission investigators access to his stabling area at any time to conduct unannounced random searches for illegal or non-therapeutic medications or drugs;
iii. CREIGHTON shall allow Commission investigators to seize any illegal or non-therapeutic medications or drugs found at his stabling area;
iv. CREIGHTON shall be subject to the Commission’s Out of Competition Program;
v. CREIGHTON may be subject to a Notice of Proposed Order in addition to any penalty imposed by the ORC Judges or Stewards for any breach of the terms of his licence;
vi. Should CREIGHTON have a positive test during the course of his probation, the stays of the fine and suspension shall automatically expire and be added to any subsequent penalty.”
12The Ruling on this Appeal is as set out in the Joint Submission on Disposition.
DATED at Toronto, Ontario, this 2nd day of October 2013.
Anthony Williams
Vice Chair