36179    R. v. Riesberry

Criminal law — Offences — Elements of offence

On appeal from a judgment of the Ontario Court of Appeal (2014 ONCA 744), setting aside the accused’s acquittals and ordering a new trial.

R tried to rig two horse races. He was caught drugging one horse and trying to sneak syringes with drugs into the track for the purpose of doing the same thing to another. Bets in excess of $5,000 had been placed on both races. R was charged with cheating while playing a game, defrauding the public, and attempting to commit the same offences. At trial, he was acquitted. The Court of Appeal allowed an appeal and set aside the acquittals. It ordered a new trial on the cheating counts and entered convictions on the fraud counts.

Held (7:0): The appeal should be dismissed.

The Court of Appeal was correct to order a new trial on the charges of cheating while playing a game. “Game” is defined as “a game of chance or mixed chance and skill” in s. 197(1) of the Criminal Code. The Crown had to establish that a horse race is a game with a systematic resort to chance to determine outcomes. There was evidence that post position is determined at random and that certain post positions are more advantageous than others. The trial judge failed to consider this evidence upon which a trier of fact could find that there was systematic resort to chance which made the race a game of mixed chance and skill. Whether the evidence actually establishes this will be for the trier of fact at the new trial to determine.

Fraud consists of dishonest conduct that results in at least a risk of deprivation to the victim. Fraudulent conduct for the purposes of a fraud prosecution is not limited to deception, such as misrepresentations of fact. Rather, fraud requires proof of deceit, falsehood or other fraudulent means. The term “other fraudulent means” encompasses all other means which can properly be stigmatized as dishonest. Where the alleged fraudulent act is not in the nature of deceit or falsehood, the causal link between the dishonest conduct and the deprivation may not depend on showing that the victim relied on or was induced to act by the fraudulent act. R’s conduct constituted other fraudulent means because it can properly be stigmatized as dishonest conduct that caused a risk of deprivation to the betting public. There is a direct causal relationship between R’s conduct and a risk of financial deprivation to the betting public. The trial judge erred in law by finding that the betting public was not put at risk of deprivation and that any risk of deprivation was too remote.

The trial judge made the necessary findings of fact to support the fraud convictions entered by the Court of Appeal, including in relation to both required aspects of the required mens rea of fraud. The trial judge found that R knew that his acts were dishonest and, in the context of the cheating while playing a game charges, that he knew that his dishonest conduct put bettors at risk of deprivation. That, after all, is what cheating is.

Reasons for judgment by Cromwell J. (Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. concurring)

Neutral Citation: 2015 SCC 65

Docket Number: 36179