36179 Riesberry v. The Queen  (Criminal law – Cheating at play – “Game” as defined in s. 197 of the Criminal Code)

On appeal from the judgment of the Court of Appeal for Ontario pronounced October 28, 2014.  The applicant was acquitted on charges of defrauding the public of money wagered on the outcome of a horse race exceeding $5,000, cheating while playing a game with the intent to defraud members of the public engaged in wagering money on the outcome of a horse race, attempting to defraud the public of money to be wagered on the outcome of a horse race exceeding $5,000, 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 horse race.  He is a licensed trainer of Standardbred horses under the Racing Commission Act, 2000, S.O. 2000, c. 20, and is subject to the Ontario Racing Commission’s Rules of Standardbred Racing.  He was videotaped injecting a substance into the trachea of a horse at a raceway and a syringe containing performance-enhancing drugs was discovered in his truck.  On the fraud and attempted fraud charges, the trial judge found that the Crown had not proven deprivation beyond a reasonable doubt.  On the cheating charges, the trial judge concluded that horseracing is not a game within the meaning of s. 197 of the Criminal Code, that the betting public was too remote from the applicant ’s act of cheating, and that the betting public was not deceived by his cheating because there was no evidence that anybody placed any bet in reliance or non-reliance on the fact that the horse may have been injected with a performance-enhancing drug.  The Court of Appeal allowed the appeal, ordered a new trial on the cheating and attempted cheating charges, and entered convictions on the charges of fraud and attempted fraud.