RULING NUMBER COM SB 019(b)/2015
COMMISSION HEARING TORONTO, ONTARIO – JULY 28, 2015
NOTICE OF DECISION
IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF THE APPEAL AND REQUEST FOR HEARING OF ANDREW MCCABE
Andrew McCabe, licence # Y09178, appealed Rulings Number SB 46422 and SB 45087, issued to him for violation of Rules 9.09 (a) & (b), 26.02.01 and 26.02.02 of the Rules of Standardbred Racing, for a positive test result from the horse, STOMPIN TOM CREEK, which raced in the 10th Race at Kawartha Downs on July 12, 2014.
Date of Hearing: July 28, 2015
ORC Panel: Elmer Buchanan, Chair Sandra Meyrick, Commissioner Justin Fogarty, Commissioner
Counsel for the Appellant: Larry Todd Counsel for the Administration: Catalin Tripon
Decision:
The Panel allowed the appeal, with written reasons for decision to follow.
The Panel’s Reasons for Decision is attached to this Notice.
DATED at Toronto, this 23rd day of November 2015.
Jean Major Executive Director
REASONS FOR DECISION
INTRODUCTION
1The Appellant, Andrew McCabe, appealed Standardbred Rulings SB 46422 and SB 45087 dated June 19, 2015. The judges at Kawartha Downs imposed a nine-month full suspension and a $5,000 fine for a purported Class I positive equine test for Oxycodone.
2This is a truly fascinating case and is one where science and the facts of what happened cannot shed complete light on what happened the day the samples were taken. There have been allegations of improper sample taking or contaminated instruments and even a contaminated site where the blood was taken from the horse, Stompin Tom Creek. We find that none of the evidence put forward can identify what caused the contamination.
3The law is quite clear that any positive drug test for a banned substance will result in a conviction against the trainer notwithstanding whatever due diligence the trainer may have exercised. Due diligence only goes to sentence and cannot help with respect to the conviction.
4In this case however, we really do not have to explore the issue of due diligence because we find as a matter of fact that the sample taken from Stompin Tom Creek did not contain a positive test for the Class 1 Drug Oxycodone.
THE FACTS
5Stompin Tom Creek, trained by the Appellant, Andrew McCabe, raced at Kawartha Downs on July 12, 2014. Stompin Tom Creek won the last race on the evening’s race card. The judges directed the subject winning horse be tested by six blood samples, “a double test", and not the usual urine sample.
6Stompin Tom Creek’s official sample is certified in the certificate of positive analysis to encompass "three glass tubes within a plastic container duly sealed with approval and seal."
7Three of the six subject blood vials or tubes were sent to Maxxam Analytics, CPMA's duly appointed laboratory in Burnaby BC, in the usual locked and sealed container and the other three vials or tubes went to Racing Forensics Inc., in Ontario, for the usual Lasix qualification testing.
8The tubes sent to Maxxam Analytics were properly stored in a securely locked cold storage room. Only one of the vials constituting a part of the official sample was tested at Maxxam Analytics and it was found that some amount of Oxycodone was present in the one vial that was tested.
9As an aside, we note that this is an absolute liability offence and there are no minimum limits which constitute a positive test no matter how small the amount contained therein raises the spectre of a finding of guilt. It is not for us today to comment on whether it may be appropriate to have minimum amounts for a positive test. That is for another day and another forum. However, it may be time for a review of this policy.
10Maxxam Analytics Laboratories confirmed in a report that all three tubes or vials of Stompin Tom Creek's official sample were stored properly in accordance with their standard operating procedure. The same report makes no reference to any degradation issues being present or any stability issues with respect to the sample.
11On being advised of his Class I positive test on or about July 25, 2014, the Appellant took steps to exercise his rights for a sample residue release and testing. The Appellant utilized one of CPMA's suggested referee laboratories in North America, being Industrial Laboratories of Colorado.
12Industrial Laboratories tested individually, all three vials which made up the official sample of Stompin Tom Creek, being each of the three vials received from Maxxam Analytics Laboratories. Two of the three vials tested (not previously tested ), came up negative using the same testing process used by Maxxam Analytics and the third vial previously tested confirmed Oxycodone presence in a trace quantity of 0.588 ng/ml.
13The judges in their reasons for decision at the hearing below speculated that the lack of Oxycodone in the two of the three samples could have been as a result of degradation of the sample. Unfortunately, it is this, at this point, where the judges erred. The judges ignored the evidence that was contained in Miss Hartman's unchallenged affidavit as follows:
(a) stability data supports a transfer of this product under ambient conditions;
and
(b) stability data supports short-term storage up to one year at refrigerant conditions.
14The judges erred also in finding degradation as a possible contributing cause where there was no evidence before them of same and this being evidence in the domain of experts beyond their ability to make such a finding or inference key evidence.
15The Appellant retained Dr. Stephen Barker, who is with the State of Louisiana Racing Commission and a director, since 1987, of the Equine Medication Surveillance Laboratory of the Louisiana Racing Commission. Dr. Barker has been a qualified expert dozens of times in Ontario for equine drug cases and has also given evidence and opinions for the Administration of the Ontario Racing Commission. He has also prosecuted hundreds of equine drug cases in Louisiana.
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