R. v. Riesberry (D.), (2015) 479 N.R. 175 (SCC)

• Judge: Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 13, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 479 N.R. 175 (SCC);2015 SCC 65

R. v. Riesberry (D.) (2015), 479 N.R. 175 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. DE.020

Derek Riesberry (appellant) v. Her Majesty The Queen (respondent)

(36179; 2015 SCC 65; 2015 CSC 65)

Indexed As: R. v. Riesberry (D.)

Supreme Court of Canada

Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ.

October 13, 2015.

Summary:

The accused was a licensed trainer of standardbred horses under the Racing Commission Act. He was videotaped injecting something into the trachea of a horse at a raceway. A search following his arrest uncovered a syringe filled with performance-enhancing drugs. The accused was acquitted of (1) defrauding the public of money wagered on the outcome of a horserace exceeding $5,000; (2) cheating while playing a game with the intent to defraud members of the public engaged in wagering money on the outcome of a horserace; (3) attempting to defraud the public of money to be wagered on the outcome of a horserace exceeding $5,000; and (4) attempting to cheat while playing a game with the intent to defraud members of the public who would be engaged in the wagering of money on the outcome of a horserace. The Crown appealed the acquittals.

The Ontario Court of Appeal, in a judgment reported (2014), 325 O.A.C. 351, allowed the appeal and set aside the acquittals. With respect to the fraud charges, the court entered guilty verdicts. With respect to the cheating while playing a game charges, the court ordered a new trial. The accused appealed.

The Supreme Court of Canada dismissed the appeal.

Criminal Law - Topic 925

Gaming and betting - General - Cheating at play - The accused was a licensed trainer of standardbred horses under the Racing Commission Act - He was videotaped injecting something into the trachea of a horse at a raceway - A search following his arrest uncovered a syringe filled with performance-enhancing drugs - The accused was acquitted of, inter alia, cheating while playing a game with the intent to defraud members of the public engaged in wagering money on the outcome of a horserace and attempting to cheat while playing a game with the intent to defraud members of the public who would be engaged in the wagering of money on the outcome of a horserace - The Crown appealed the acquittals - The Ontario Court of Appeal allowed the appeal, set aside the acquittals and ordered a new trial - The trial judge erred in his interpretation of a game as it was defined in ss. 197 and 209 of the Criminal Code - Under s. 197, a game for the purpose of s. 209 "means a game of chance or mixed chance and skill" - In relying on an American decision that did not contemplate the possibility of a game of mixed chance and skill to support his conclusion that horseracing was a game of pure skill, the trial judge erred in law - Further, the trial judge erred in law in his interpretation of s. 209 - Under that section, a person who cheated while playing a game "with intent to defraud any person" was 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 - Further, it was not incumbent on the Crown to prove that the accused had profited from the deprivation or risk of deprivation - As a result of these legal errors, the trial judge never made the factual findings necessary to decide whether there was a "systematic resort to chance" to determine outcomes in horse-racing - Accordingly, while the accused could reasonably have been convicted if the correct legal test were applied, the necessary findings of fact had not been made - The court could not substitute guilty verdicts - The Supreme Court of Canada agreed that there was evidence at trial upon which it could be found that horse racing, in the present circumstances, could be found to involve a systematic resort to chance and that a new trial was required - See paragraphs 9 to 16.

Criminal Law - Topic 2005

Fraudulent transactions - Fraud - Elements of - The accused was a licensed trainer of standardbred horses under the Racing Commission Act - He was videotaped injecting something into the trachea of a horse at a raceway - A search following his arrest uncovered a syringe filled with performance-enhancing drugs - The accused was acquitted of, inter alia, defrauding the public of money wagered on the outcome of a horserace exceeding $5,000 and attempting to defraud the public of money to be wagered on the outcome of a horserace exceeding $5,000 - The Crown appealed the acquittals - The Ontario Court of Appeal allowed the appeal, set aside the acquittals and entered guilty verdicts - It was undisputed on appeal that evidence was led at trial indicating that bets in excess of $5,000 were placed on both races - The trial judge's statement that no evidence was led on this matter constituted an error in law because it indicated that he failed to consider the whole of the evidence - The trial judge erred in law because he failed to take into account the regulatory scheme in considering the issue of risk of deprivation - The trial judge's closing comments that some bettors would have altered their betting behavior if they had known about the doping, and that the injections created "an unfair advantage" for the accused's horse established that but for his errors of law, he would have concluded that a risk of deprivation had been established - But for the trial judge's legal errors, the accused would have been found guilty of the fraud charges - Accordingly, substituting guilty verdicts was appropriate - The Supreme Court of Canada agreed - See paragraphs 17 to 33.

Cases Noticed:

Harless v. United States (1843), 1 Morris 169 (Iowa), dist. [para. 10].

R. v. Ross, Banks and Dylan, [1968] S.C.R. 786, refd to. [para. 11].

R. v. Graveline (R.), [2006] 1 S.C.R. 609; 347 N.R. 268; 2006 SCC 16, refd to. [para. 13].

R. v. Théroux (R.), [1993] 2 S.C.R. 5; 151 N.R. 104; 54 Q.A.C. 184, refd to. [para. 20].

R. v. Zlatic (Z.), [1993] 2 S.C.R. 29; 151 N.R. 81; 54 Q.A.C. 161, refd to. [para. 20].

R. v. Olan, Hudson and Harnett, [1978] 2 S.C.R. 1175; 21 N.R. 504, refd to. [para. 23].

Scott v. Metropolitan Police Commissioner, [1975] A.C. 819, refd to. [para. 23].

R. v. Côté and Vezina, [1986] 1 S.C.R. 2; 64 N.R. 93, refd to. [para. 26].

R. v. Cassidy, [1989] 2 S.C.R. 345; 100 N.R. 321; 36 O.A.C. 1, refd to. [para. 29].

Counsel:

Gregory Lafontaine, for the appellant;

Michael Kelly and Matthew Asma, for the respondent.

Solicitors of Record:

Lafontaine & Associates, Toronto, Ontario, for the appellant;

Attorney General of Ontario, Toronto, Ontario, for the respondent.

This appeal was heard on October 13, 2015, before Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown, JJ., of the Supreme Court of Canada.

On October 13, 2015, the judgment of the Court was delivered orally and the following written reasons were filed in both official languages by Cromwell, J., on December 18, 2015.