RULING NUMBER COM SB 004/2014

COMMISSION HEARING TORONTO, ONTARIO – MARCH 19, 2014

NOTICE OF DECISION

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

AND IN THE MATTER OF THE APPEAL OF PATRICK SHEPHERD

Patrick Shepherd appealed against Ruling Numbers SB 45925 and SB 45927.

Date of Hearing: March 19, 2014

ORC Panel Members: Anthony Williams, Vice Chair

Sandra Meyrick, Commissioner

Representative for the Appellant: Anthony Macdonald

Representative for the Administration: Neil McCoag, Agent

The Panel denied the appeal

A transcript with the Panel’s oral Reasons for Decision is attached to this Notice.

DATED at Toronto this 27th day of March 2014.

______________________________

Steven Lehman

Executive Director

ONTARIO RACING COMMISSION

STANDARDBRED HEARING

IN THE MATTER OF THE RACING COMMISSION ACT, 2000, S.O. C.20 AND THE RULES OF STANDARDBRED RACING:

AND IN THE MATTER OF AN APPEAL AND REQUEST FOR HEARING OF PATRICK SHEPHERD:

Held Before:

Anthony Williams Chairman

These are an excerpt of the proceedings in the above mentioned matter held before The Ontario Racing Commission, Re: PATRICK SHEPHERD, taken before Toronto Court Reporters, Suite 1410, 65 Queen Street West, Toronto, Ontario, at 10 Carlson Court, Suite 400, Toronto, Ontario, on the 19th day of March, 2014.

Appearances:

Neil McCoag,

agent for the Ontario Racing Commission Administration

Anthony Macdonald agent for the Appellant

Hearing continued ...

MR. CHAIRMAN: Thanks very much. Please be seated. This will be a ruling in relation to an appeal launched by Patrick Shepherd of Linden, Ontario, the appellant in relation to findings against him on January 13th, 2014, a breach of Ontario Racing Commission Rule 6.41.01(b), 6.20(a) and (b) and the imposition in totality of a fine of $750.00 and a period of probation for a period of six months. The violations alleged against Mr. Shepherd arose on Thursday, October 17 of the year 2013 at the Woodbine Racetrack in Toronto. A gentleman by the name of Troy Moffatt, investigator with the Ontario Racing Commission, provided evidence that at 5:20 that afternoon he was on association grounds. Part of his purpose was to conduct truck and trailer searches. Mr. Shepherd had a truck with trailer and two horses. There was brief discussion between the gentlemen. Mr. Shepherd took the second horse to the paddock and returned to the truck where Mr. Moffatt awaited him. Mr. Shepherd opened the door, the passenger side door, of his truck and is said at least from the perspective of Moffatt to have opened a glove box and to have taken certain items from the glove box putting them into the front left pocket of the black hoody that Mr. Shepherd was wearing. Mr. Moffatt through the evidence and through the materials that have been filed as Exhibit 1 told us that he said to Mr. Shepherd what are you putting in your pocket. Now unfortunately Mr. Shepherd who presents as a young gentleman and a hard working skilled trainer followed what I would describe as a recipe to get deeper into difficulty. When he is asked what are you putting into your pocket the first thing unfortunately that he says to Moffatt is I never put anything in my pocket. We know from further evidence that he had placed at least three items in his pocket so the first utterance he makes to the investigator who is there to conduct truck and trailer searches is a stretcher. He then says I'm looking for some Zantac and then also unfortunately says well, you can't search me. Now Mr. Shepherd was right in relation to the Rules of Racing that personal searches can't be done and he has given us an explanation or blend of explanations which I accept that he was sick, that he felt rushed, that he was alone, his groom was unavailable that day, he was understaffed and in his words he was heated up. Moffatt asks him again what did you put in your pocket and he states I never took anything but you can't search me. There is the disclosure of some materials that may have been everything that he took out of the glove box but unfortunately the search from the perspective of Moffatt and the perspective I take from the totality of evidence I have heard is that the search was compromised. I believe he had described it as contaminated. Again, the gentleman says you can't search me and then he says I need to go get lasix for my horse. He declines to indicate the source of the pills, which is his right and he may have felt a sense of allegiance to his friend of some period of time that offered to assist him following his unfortunate illness. In essence he appeals against penalty and he has been ably represented by Mr. MacDonald. The penalties that are available to a panel of track judges include fine, suspension and probationary periods. To the credit of Mr. Shepherd he was described by senior judge Minler as more than accommodating. He admitted that he was wrong and he was very remorseful and he was straight forward. We have had the assistance through both Mr. McCoag's submissions and Mr. MacDonald's the dispositions that have been imposed on other individuals. They provide some guidance. It is the burden of the Administration to prove any case of this nature against the licensee and the burden of proof is upon what is referred to as a balance of probabilities, a tilting of the scale. The evidence must be clear, cogent and compelling. I have come to the conclusion that this young gentleman Mr. Shepherd has a potentially extremely promising career ahead of him as a trainer and I am persuaded that the carefully considered decision of the track judges as expressed by Jeff Minler took into consideration a variety of factors and that the monetary penalty in totality of $750.00 in Canadian funds, the absence of any suspension and the period of probation without any condition other than in essence to behave for a period of six months is an appropriate penalty in the circumstances. So the bottom line is that your appeal is dismissed. There is no request for costs in relation to frivolous appeal. Even if there had been a request I would not have granted it. I take the position that you launched this particular appeal with the guidance of Mr. MacDonald in complete good faith and I'm hopeful that we won't have to share business of this same nature in the future. So best wishes but the appeal is dismissed.

CERTIFIED CORRECT:_______________________________

RAYMOND P. MACDONALD, B.A., CAR

Commissioner of Oaths