R. v. Riesberry, 2014 ONCA 744

Keywords: Criminal law; fraud; failure to consider totality of evidence = error of law; horseracing; betting & gambling; what is a “game”

Synopsis: The Respondent, a licensed horse trainer, was captured by a hidden video camera injecting something into the trachea of a horse at a racetrack. An hour later the injected horse was raced and finished in sixth position. A month later the Respondent was arrested at the racetrack where a search of his vehicle revealed a syringe filled with a combination of the drugs epinephrine and clenbuterol (which can be used as performance-enhancers). The use of the drugs in horses on racing day, as well as the possession of a loaded syringe at a race track, are both prohibited by regulation. The respondent was charged with fraud and cheating at play with the intent to defraud members of the public engaged in the wagering of money on the outcome of a horserace pursuant to the Criminal Code. The trial judge held inter alia that 1) the purpose of the injection was to enhance the performance of the horse, 2) the Respondent knowingly and surreptitiously brought syringes containing banned substances onto a racetrack, and 3) the injections were made for the purpose of creating an unfair advantage for a horse who had been entered in a racing event (at para. 8). Despite the findings, the trial judge acquitted the Respondent of all charges (at para. 9). The Crown appealed the acquittals to the Ont. C.A.: appeal granted. Counts of fraud and attempted fraud acquitted at trial were set aside and substituted with verdicts of guilty by the C.A. pursuant to s.686(4) of the Criminal Code (at paras. 35, and 37-38); see also R. v. Cassidy, [1989] 2 S.C.R. 345 at 354. Counts acquitted at trial in relation to cheating while playing a game were set aside and new trial ordered in line with authority established in R. v. Graveline, 2006 SCC 16, at paras. 14-16.

Importance: The C.A. found the trial judge failed to consider the totality of the evidence in relation to the fraud-related charges which amounted to an error in law; R. v. J.M.H., 2011 SCC 45, at para. 31. It was undisputed on appeal that evidence at trial demonstrated that public bets in excess of $5,000 were placed in relation to the race outcome (at para. 18). Just as those who invest are entitled to the accuracy of financial statements (R. v. Drabinsky, 2011 ONCA 582) so too are bettors entitled to assume compliance with regulatory horseracing rules (at para. 21). The intentional use of performance horse-enhancing substances was a significant breach of the regulatory scheme which placed bettors at risk of being deprived of their bets. As found by the trial judge, the purpose of the trachea injection by the Respondent was to create an unfair advantage for the horse. The trial judge erred when he concluded horseracing was a game of pure skill that does not include an element of chance when considering the s.197 definition of a “game” and the related s.209 offence of cheating at play under the Criminal Code. The trial judge erroneously relied on American jurisprudence which failed to contemplate the Criminal Code definition of “game” as one of “mixed chance and skill” (at para. 30). The trial judge erred when he relied on R. v. Vézina, [1986] 1 S.C.R. 2, “to conclude that, assuming the betting public had suffered deprivation, the deprivation was too remote” (at paras. 12 and 32). The C.A. concluded:

“[A] person who cheats while playing a game ‘with intent to defraud any person’ is guilty of an offence. The words ‘any person’ would clearly encompass any person betting on a race, and not just those participating in a race…In our view, each of these errors could have affected the result on the cheating while playing a game charges. In the result, we conclude that the trial judge erred in law in acquitting the respondent on these charges and we allow the appeal from the acquittals” (at paras. 32 and 34).

Counsel for Appellant: Matthew Asma & Michael Kelly (Crown Law Office Criminal, Toronto)

Counsel for Respondent: Gregory Lafontaine (Lafontaine & Associates, Toronto)

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