Richard Moreau appeal hearing on the verge of a decision in Ontario
It appears final arguments have been made in the Ontario Horse Racing Appeal Panel case involving the 10-time Canadian Trainer of the Year.
by Melissa Keith
On Friday (March 20), the Ontario Horse Racing Appeal Panel (HRAP) heard what could be final arguments from both sides in the ongoing appeal hearing of Richard Moreau.
Voted the O’Brien Trainer of the Year from 2013 through 2022 (inclusive), Moreau has been sidelined since July 23, 2024 in relation to the DPO (darbepoetin alfa) positive of pacer Funtime Bayama. He and driver Sylvain Filion each faced 10-year suspensions and $40,000 fines in relation to the gelding’s positive out-of-competition test for the prohibited substance after the 2024 North America Cup. The trainer’s HRAP hearing began on Dec. 10, 2025.
When the appeal hearing resumed on March 19, Moreau’s assistant trainer Justin Turcotte answered questions pertaining to the collection of Funtime Bayama’s blood sample and signing of the test card on Moreau’s farm. On March 20, counsel for both sides presented arguments.
Counsel for the Registrar Brendan van Niejenhuis brought up “the threshold issue.” He stated that although the Counsel for the Appellant, Jean-Marc MacKenzie, had raised questions about the chain of custody and sample integrity, there was nonetheless an undeniable forensic reality.
“The signature peptide, the T9 peptide, described by the [laboratory testing] witnesses to you [in the Dec. 2025 hearing], is unique to DPO,” Van Niejenhuis said. “The controls that were applied during the course of the testing performed precisely as expected, and the result, a positive test, is unequivocal… I observe now that none of the concerns that have been raised in the evidence, in my submission, can undermine the scientific integrity of the confirmatory result, which is the critical evidence before you.
“What we’ve undertaken to do is show you on common sense evidence, on scientific evidence, that this horse had DPO in its system.”
Van Niejenhuis added that the Agriculture and Gaming Commission of Ontario (AGCO) is not required to follow the same testing protocol as the Canadian Pari-Mutuel Agency (CPMA).
“The departures, if that’s what they are to be called, [or] the distinctions between the procedure followed here and the CPMA protocols are not deficiencies,” he said. “They are distinctions between two different processes.”
On June 10, 2024, AGCO inspector Brian Nagano and veterinarian Dr. Pam Chesterfield visited Moreau’s Hamilton, ON training center to conduct what van Niejenhuis called “a planned out-of-competition testing operation that was targeting horses that had been entered into the Pepsi North America Cup.”
Funtime Bayama had been chosen based on a confidential decision by AGCO management; no advance notice is provided to trainers.
“Its purpose… particularly in the case of EPO and DPO, is to detect these non-therapeutic, performance-enhancing substances outside of race day, when they may no longer be detectable yet still be having a performance-enhancing effect,” van Niejenhuis said.
“Mr. [Justin] Turcotte initialed the tamper-evident seal and signed the test card, as he confirmed to you yesterday,” noted the Counsel for the Registrar, referencing the March 19 testimony of Moreau’s assistant trainer. “He had routinely participated in sample collections both on Moreau’s behalf and in other circumstances in the out-of-competition program.”
After summarizing the collection and testing trajectory of Funtime Bayama’s blood sample, van Niejenhuis argued that departure from standard procedure for handling the sample “does not bear the weight that the defense appears to seek to place upon it.” Two tubes of the horse’s frozen plasma had been sent from BV (formerly Bureau Veritas Labs) of Burnaby, BC to LGC Laboratories, Fordham, UK for confirmatory testing, arriving defrosted on June 12, 2024, with no tamper-proof seal or security bag, and Moreau’s name on the package.
Van Niejenhuis stated that regardless of handling issues, the DPO test could still be trusted because of its specificity.
“DPO does not occur in the horse at all,” he said. “The question is qualitative: Is DPO potentially present, or is it not? It is not an issue of concentration. A late-timed reading may affect the degree of the optical density reading, but it cannot create a false positive for a substance that never naturally occurs in the blood of the horse.”
Van Niejenhuis noted that the “bubble-wrapped, taped-up bag inside a sealed polystyrene box” that BV used for shipping Funtime Bayama’s sample “is consistent with the out-of-competition requirements.” The absence of tamper-evident packaging did not indicate the sample was compromised.
“There’s no evidence to suggest that anything like that happened,” he said. “The defense has not called any scientific evidence that challenges the confirmatory result or the sworn evidence of these witnesses who performed the testing.”
Counsel for the Defense Jean-Marc MacKenzie opened his argument by mentioning “the threshold matter” in relation to the “absolute liability” of Moreau.
“That’s critical, because in an absolute liability regime, once the evidentiary threshold is met, the consequences fall,” he said. “There’s no consideration of intent; no explanation; no safeguard. The result of this penalty, in practical terms, is a career-ending sentence in the only industry [in which Moreau] has worked.”
MacKenzie pointed out that as of March 20, 2026, the trainer had already served 605 days of a life-altering suspension, “on the basis of a flawed process we heard evidence on for three full days.” He invoked a baseball example to illustrate the necessity of maintaining perfect control of Funtime Bayama’s blood and plasma samples at every stage: “no matter how striking the home run was, it didn’t count unless every base was touched on the way home… In a proceeding where a man’s entire career is at stake, close enough can’t be good enough.”
The Counsel for the Registrar asked that the test results for Funtime Bayama be excluded from consideration in the HRAP’s ruling on Moreau’s appeal hearing. He argued that the data “lacks any hallmarks of [forensic] reliability” and is “far more prejudicial… than probative.”
MacKenzie requested that Moreau be granted a stay if the panel allowed the test results to be excluded as evidence in his ongoing appeal.
“Should the evidence be deemed admissible… [it] should be given such greatly reduced weight that it cannot sustain the burden of proof required for this absolute liability charge,” he said. “The Registrar wants to say that we don’t have express proof of tampering, but that kind of argument is an attempt to unfairly shift the burden of proof onto the appellant. They don’t get the benefit of any presumptions. They represent a regulator who has a duty of integrity.”
Moreau’s representative compared the trainer’s situation with the “Motherisk scandal,” in which years of hair testing at the independent Motherisk Drug Testing Laboratory in Toronto’s Hospital for Sick Children produced false positives for maternal drug and alcohol abuse based on flawed methodology and analysis.
MacKenzie reviewed irregularities in the lab equipment, testing, and chain of custody for Funtime Bayama’s samples, pointing out numerous shortcomings.
“They also let you believe that what went on in BC [at the BV lab] was just screening,” he said. “They controlled the ‘A’ sample throughout the process, the integrity of that process… What went on at that lab for almost a month? We don’t know. There’s no documentation… We didn’t even know that they had the samples for 16 or 18 months.”
He noted that three vials “went missing” and were never sent to LG.
Van Niejenhuis responded to MacKenzie’s 29 points, noting that a stay should only be allowed in cases where there has been “a finding of abusive process.” The Counsel for the Registrar said that MacKenzie’s submissions sounded like “a reasonable doubt case” despite “the gold standard” being used for testing.
“There’s no chain of custody document for Isaac Newton’s apple, either, but on a balance of probabilities, we all believe in gravity,” van Niejenhuis said. “As for who’s responsible for the exogenous administration [of DPO], that’s not a question that you have to decide today. It may be a question you’re called to consider when we reconvene, if you accept my suggestions.”
MacKenzie said that “a decision on this would be helpful, at this stage,” noting that he thought van Niejenhuis “was now in agreement” on that matter.
HRAP chair Stanley Sadinsky asked if the test results for Funtime Bayama “should not stand… if we found there was bias, or if we found there was a reasonable apprehension of bias?”
Van Niejenhuis responded “one must expect a scientist to stand behind their work.”
MacKenzie pointed out that “in our opinion, we have almost two different samples: the two milliliters [already tested]… and then the found sample, 18 months later.”
Sadinsky concluded by stating that he was “certainly prepared to provide a decision on the threshold issue, as both counsel have requested… We are going to consider this matter carefully and provide a decision on the threshold issue… Depending upon that result, we may or may not be reconvening for the balance of the appeal.”
Note: The nine lives of Mark MacDonald, Part 2 will be published next weekend.
