Let me state right now, I am not saying the ORC made a wrong decision regarding Kevin Wallis or Gene Piroski; the ORC has made its decision so for purposes of an administrative hearing, this is the end of it and they may resume racing in Canada.
I should also say I am not a lawyer and certainly not knowledgeable in Canadian law and administrative procedures. That said, there is one aspect of the decision the ORC rendered which troubles me. In my opinion, it gives a person who accused of race fixing in the future a huge advantage in any hearings regarding race fixing.
The ORC found a problem with the lead (racetrack) judge selecting the tapes for review and preparing the testimony regarding the races. As the ORC hearing correctly pointed out the, racetrack judge reviewed the specific races to prove the allegation of race fixing; hence there is some inherent bias in his testimony.
Meanwhile, after the fact, well-respected horseman D.R. Ackerman reviewed the races after receiving the racetrack judge's comments about the races for Gene Piroski. Kevin Hardy, the OHHA President, reviewed the judges comments about the races for Kevin Wallis. Let me state here I am not suggesting Ackerman or Hardy gave false evidence; in fact the two drivers are well respected in the racing industry.
However, as the racetrack judge reviewed the video tapes in an effort to prove an accusation, witnesses for an accused driver could be said to be reviewing the video tapes in an effort to prove the innocence of the driver. Hence in this case, it was the reputation of the witnesses for the licensees which was given preference over the Windsor Raceway Judge because he reviewed the tapes in an effort to prove malfeasance. There seems to be a catch-22 here.
With such a standard, how can any Ontario track judge testify successfully about a race in a race fixing scandal? First of all, when a judge reviews a live race, he/she reviews the race to make sure there are no fouls or violation of the racing rules. Unless something is blatant, they are not looking for drivers holding back or letting people pass needlessly in conjunction to a betting coup because no one knows an attempt to score a coup exists until after the race has concluded. To meet one of the biggest complaints the ORC hearing judge is suggesting, once a race is over the probable payoffs would have to be shown to the judges and if something looked suspect, they would then review the entire race on tape looking for drivers not attempting to win, get the wagering records and review them and put their findings in the stewards' report to the commission before making a race official which would cause a longer delay between races as you would have to watch each horse individually in the race and review wagering records. This is not feasible.
Realistically, the only way race evidence could be collected is the way it was done in this case once the charges from Michigan became known. Hence the racing commission's judge is starting behind an eight ball as the quality of their testimony is predetermined to have a strike against it.
I would suggest the best way to handle cases like this in the future is the ORC judges select and review the races as they currently are done, which admittedly is somewhat flawed. The defendants get to select those drivers they wish to review the judges finding's and the race for them. In this case there is potentitally equal bias. Here is where things would change. A third reviewer, selected by the hearing board, and agreeable by both sides would be selected as an unbiased reviewer. This way when testimony is taken, a neutral person would be able to voice their opinion which would be accepted as unbiased testimony and would be considered by the hearing panel in conjunction with the racetrack judge's and the defendant's testimony.
Unless such a change is made, the ORC may find it hard to take action against a potential race fixer unless the criminal courts act first.