Divisional Court upholds absolute liability rule for positive drug tests in horse racing

Stockwoods lawyers Brendan van Niejenhuis and Fredrick Schumann successfully persuaded the Divisional Court to dismiss a challenge to rules promulgated by the Ontario Racing Commission to combat the use of performance-enhancing substances in horse racing.

The rules, implemented in 2008, create an absolute liability offence by a trainer where the trainer’s horse tests positive for a prohibited substance, while permitting evidence of due diligence by the trainer to be introduced at the penalty phase.  In Shakes v. Ontario Racing Commission, 2012 ONSC 4229, Swinton J. (for a unanimous panel of the Divisional Court) agreed that the presumption against absolute liability offences found in cases such as R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, did not mean that the legislature had to explicitly grant the Commission power to create absolute liability offences in its Rules.  As a result, the Divisional Court upheld the penalty imposed on the trainer as a result of his horse’s positive test for caffeine.