Frederick Bourgault appeal dismissed by Ontario Horse Racing Appeal Panel

Frederick Bourgault appeal dismissed by Ontario Horse Racing Appeal Panel

June 17, 2021

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Trainer penalized with $2,500 fine and 45-day full suspension, plus conditions on license

by Melissa Keith

Update on the following story published July 12, 2020: https://harnessracingupdate.com/2020/07/12/fresh-air-and-sunlight/

Racing is increasingly under scrutiny as the general public condemns actual or perceived animal abuse. When the Ontario Horse Racing Appeal Panel (HRAP) heard the appeal of trainer Frederick Bourgault last month, testimony was sometimes disturbing enough to provoke the question: If the racing community accepts such treatment of a racehorse as normal, how long will the sport survive?

The background: On Feb. 1, 2020, Alcohol and Gaming Commission of Ontario (AGCO) judges imposed strict conditions on Bourgault. They ruled he should serve a 45-day full suspension running Feb. 17-April 1, 2020 (inclusive) and be fined $2,500, plus have conditions on his license for one year. This was in relation to the 23-year-old trainer’s aggression toward Sunny Billion after the pacer finished fifth at The Raceway at Western Fair Dec. 2, 2019. Judges determined Bourgault’s actions were “misconduct prejudicial to the best interest of racing by committing an act of cruelty.”

On Feb. 11, 2020, Bourgault filed a notice of appeal, requesting stays of rulings against him. On Feb. 14, the HRAP Registrar initially opposed his request. The HRAP requested submissions from both sides, then allowed Bourgault the stays on Feb. 18. At that time, HRAP Chair Stanley Sadinsky found that if stays weren’t granted and Bourgault was punished while awaiting hearing, “he will likely suffer the reputational stigma of being penalized for cruelty to a horse, notwithstanding a final determination of the matter.”

Originally, Sadinsky ruled for the appeal hearing to be set within 30 days. On March 11, 2020, the HRAP issued a notice of hearing, with Bourgault’s appeal set to start May 26, 2020. It was effectively postponed for almost a year.

May 4, 2021 was the first day of Bourgault’s appeal hearing. Western Fair Raceway manager Greg Gangle, track veterinarian Dr. Chris Robson, and paddock judge Leslie Jackson described observations from Dec. 2, 2019, but none of them had witnessed what others would describe in their accounts of what transpired between Bourgault and Sunny Billion.

Day two, horseman Mark Horner answered questions about what he saw on the night in question. He stated that when he was leaving the track after race 3, “Freddy was hitting the horse with the headpole” ahead of Horner’s horse on the ramp to the paddock. He described Bourgault’s two-handed action as “like a crosscheck.” Horner said he was “kind of in disbelief” as he watched “the action of the headpole going up and down” for “at least three hits” on the gelding’s neck.

Horner testified he later “heard something” in the paddock that sounded “like thrashing.” He recalled quickly saying something to paddock judge Jackson, then moving on to other race-night obligations. Contacted later by investigators, the trainer/driver reported that although he was “just guessing” what he’d heard, it sounded like “the horse was getting body-slammed against the walls.”

William Leon was the second witness to appear, by phone. A trainer/caretaker with a small family stable, he testified that the incident he saw took place across from his horse’s stall in the Western Fair paddock. He recalled Bourgault “was pretty aggressive toward the horse,” hitting Sunny Billion in the face and striking his hock with a burr-wrap headpole: “The horse was in the crossties, [Kant See Back] bridle on, and didn’t know where he was being hit.”

What Leon saw went beyond the bounds of what he considered normal after a disappointing race. “I was going to intervene. I was concerned about the welfare of the horse,” he told the panel, adding that Jackson handled the situation “professionally.” When investigators contacted him later, Leon provided a statement. “I’m not saying [Bourgault] tried to break the horse’s leg or kill it,” he explained. “What I witnessed shouldn’t be happening. We have enough black eyes in this sport. If anybody in the public would’ve seen that, they would’ve intervened… We’re all looking out for the animal.”

The day’s third witness was trainer/caretaker Stacey Currie, initially referred to as “Source #1.” She told the panel that after she reported seeing Bourgault hit Sunny Billion, she feared retaliation: “I worried a lot that one of my horses would be claimed by him… I would be absolutely devastated… I have concern for any animal in his care.”

She described concerns about being shunned within the industry if she went on the record, as she did not have her trainer’s license at the time.

Appellant counsel Larry Todd cross-examined Currie, asking about her past relationship with driver Brett MacDonald, who would sometimes drive his father’s horses in competition against Bourgault’s. She described paddocking horses at The Raceway on the controversial night, reporting that she witnessed Bourgault delivering “a two-hander with the headpole” to Sunny Billion outside the paddock entrance. She notified the paddock judge, while others nearby did not. “It’s just like everything else,” she told the panel, “Some people just don’t want to get involved if it doesn’t involve them.”

When Todd suggested to Currie that “the front part” of the headpole “is going to come flying out” if the equipment is used to strike a horse, she responded that she didn’t know, because “I haven’t done that.” Currie was asked about Dr. Robson’s inspection of Sunny Billion, which found “no abnormalities.” She responded, “It doesn’t mean that just because it didn’t leave a mark, the skin wasn’t bruised.”

Currie said she was interviewed further about the incident, in person at Mohawk and again by phone. “I was very unsure of how involved I wanted to be,” she said, “I was intimidated.”

Day three, Tyler Durand, current manager of racing for the AGCO Regulatory Compliance Branch, gave statements about Bourgault’s whip use at Grand River Raceway on June 25, 2020. “I witnessed Mr. Bourgault strike the horse several times, for whatever reason, using an arm motion that was very aggressive and excessive,” he said, noting the trainer was “bringing his arm up above his head” to whip during warm-up.

“These are the kind of strikes that a person would use because they mean it,” explained Durand, “Because they want the horse to feel it.” Questioned by Registrar’s representative Nicolle Pace about what “it” was, Durand responded “pain.” He added, “Nowadays, this would not be tolerated, even during a race.” Some horsepeople on the track also reported what they saw. Last October, Bourgault was fined $500 for the violation.

Durand remarked that only under “exceptional circumstances’’ do horsepeople break rank to report, which spoke to “how passionately they felt that this situation was wrong.” When Pace asked him how Bourgault’s treatment of Sunny Billion met the “standard of care” expected of an Ontario-based trainer, Durand was clear: “It does not. It flies in the face of it.”

Todd cross-examined Durand about why Bourgault might be scrutinized by peers. “It’s a competitive industry. People get jealous,” suggested the horseman’s representative. “The distinction here is that several people have come forward” as whistleblowers, replied Durand.

The Zoom hearing resumed May 12, with Bourgault’s girlfriend Danielle Cassell making statements. She was Sunny Billion’s caretaker Dec. 2, 2019 at Western Fair, and denied anything unusual happened. “He was a little antsy after the race, but was manageable, to a point,” she told the panel. She testified that she removed his headpole and held it in her hand while Bourgault was behind Sunny Billion removing tail tie, earplugs and sulky in the “hustle and bustle after the race.” Cassell told Todd she didn’t see cross-checking with a headpole, and didn’t recall what the paddock judge said to Bourgault.

Registrar’s representative Faye Kidman cross-examined Cassell, questioning her about the accuracy of her memories. She pointed out that Cassell’s testimony was inconsistent with earlier statements: “December 9, [2019] you told AGCO officials that Mr. Bourgault removed the headpole from that horse,” said Kidman. “I always take off the headpole,” replied Cassell. “You were lying to officials on December 9th, and on December 2nd you took off the headpole?” continued Kidman. “Would it surprise you [that on] December 2 that you weren’t the one who removed the headpole?” Cassell insisted she “always” removed it.

Cassell explained that Sunny Billion’s “lurching forward” outside the paddock was normal behaviour: “He’s always dancing after the race.” She acknowledged her boyfriend was “slightly upset” post-race, and answered Todd’s one question (could Bourgault have done what was alleged?) with a “no.”

Bourgault testified next, confirming he was now training in New Jersey and raced his first horse at Monticello Raceway that week. “You mentioned that you are at present excluded from racing,” said Todd. Bourgault agreed: From late September/early October 2020, Western Fair and Woodbine Mohawk Park had refused his entries. Before pandemic restrictions caused a shutdown, The Raceway “did let me race three horses on the last day, but they wouldn’t let me on the grounds,” said Bourgault. He was previously racing “at least 10 horses a week” at London, which he identified as the venue where he had the most success.

During Todd’s questioning, Bourgault disagreed with Horner’s and Currie’s accounts, arguing that it was impossible to swing the headpole without it extending and that driver Travis Henry hadn’t stopped Sunny Billion on the ramp from track to paddock. The trainer attributed Horner’s and Leon’s statements to unfriendly competition. He also noted he had claimed Grey Bell, a horse groomed by Currie, from Ronald MacDonald in 2019. After the events at Western Fair, AGCO compliance officials had turned up at his farm, but found no evidence of abuse.

Kidman cross-examined Bourgault about whether he had discussed the case with Cassell, or logged into the Zoom hearing under her name to hear testimony, which was not permitted. He denied discussing the matter, and also denied arguing with Travis Henry after Sunny Billion’s race. This contradicted his Dec. 9 statement to officials, in which he said he and Henry “had an argument” and he “was pissed off” with the driver. Kidman stated, “You don’t have a clear recollection of what you did with the horse.” Bourgault countered, “I remember what I did.” He denied hitting the gelding that night, on the head or body.

HRAP Chair Sadinsky asked Bourgault, “Can you help me as to why these three people would tell these three separate stories if they were untrue?” The trainer replied, “I’m racing against those people every week.” Grey Bell had won over $15,000 since he claimed her and she left Currie’s care. Horner and Leon “are people who don’t like people coming out to race there” at Western Fair, Bourgault added, noting “Lots of jealousy in harness racing, Mr. Chair.”

On the last day of testimony, Travis Henry was interviewed. He said he never saw Sunny Billion “slammed with a headpole,” but some competitors disliked Bourgault because he was successful and “French, so he might come off a little arrogant.” Henry admitted that as a catch driver in Ohio, the specifics of long-ago races and conversations were hard to remember, but he “never saw Fred touch the horse.”

Jeffrey Williamson, Stephen Quinn, and Andy Moore raced horses at London on the night of the alleged abuse. All testified they hadn’t witnessed anything unusual. Owner/trainer Williamson said he’d had horses with Bourgault, and saw too much influence from “troublemakers”: “People are trying to cause too much drama and problems at the racetrack… If somebody was beating on a horse, you wouldn’t have had five complaints, you would have had a hundred.” Quinn, a groom/owner, said his horse Larjon Lucky was in a paddock stall that gave him full view of Sunny Billion’s, yet saw nothing problematic. Owner/trainer/driver Moore said he has bought horses from Bourgault, and “everything seemed the way it should’ve been” with Sunny Billion Dec. 2.

Closing submissions were presented May 14. Kidman stated, “the position of the Registrar [is] that this horse was simply caught in the crossfire” when Bourgault “was mad about what happened in this race.” She argued that absence of visible marks on Sunny Billion did not rule out abuse, and that no one alleged Bourgault made a “long or overdrawn attack” or caused “long-term damage.” Kidman stressed that cruelty was independent of intent to commit cruelty.

Much came down to who was in position to witness what were alleged to be quick, sudden hits on Sunny Billion, and whose memory of the night’s events was reliable over a year later. Cassell and Bourgault both reversed position on what they told investigators Dec. 9, 2019, diminishing the trainer’s anger and placing the headpole in Cassell’s hands in their May 2021 testimony. Kidman suggested Cassell “intentionally tried to mislead this panel,” while Jackson, Gangle, Robson, Leon and Currie gave statements that were “internally and externally consistent” nearly 18 months after the incident. She asked the panel to dismiss Bourgault’s appeal on grounds that his “conduct must be denounced,” adding “the economic stability of the racing industry” depends on equine welfare.

June 3, the HRAP issued its ruling, finding it improbable that witnesses had fabricated evidence or maliciously colluded against Bourgault. His appeal was dismissed and original $2,500 fine and 45-day full suspension confirmed, to begin at a future date set by AGCO judges. Conditions on his license were extended from one to two years: After the suspension, he must “keep the peace and be of good behaviour” or face immediate suspension if a conduct violation occurs, “until the matter is considered and disposed of.”

The panel concluded “[t]his case turns on issues of credibility.” Credibility of witnesses decided the outcome, but a second layer of credibility was concurrently at stake: Could harness racing be considered a “credible” sport by the general public and government if it allowed acts of abuse to go unchecked? “Striking the horse even once in the manner described by the complainants may constitute conduct prejudicial to the best interest of racing, and cruelty to the horse,” stated the HRAP’s written conclusions. “Striking the horse on three separate occasions makes the conduct even more egregious.”

At press time, Bourgault was driving in qualifiers at Monticello Raceway. Sunny Billion, trained by Gardner McCallum since last year, finished third in his Truro Raceway qualifier Sunday.

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