May the Odds be Ever in Your Favour...

Riesberry was a gambling man who wanted the odds to be ever in his favour - so he cheated. He used his position as a licensed trainer of standardbred horses to inject them with performance enhancing drugs. Riesberry was charged with criminal offences including fraud and cheating. He was acquitted. The Crown successfully appealed: 2014 ONCA 744.

The facts were as follows: on a race day in September 2010 Riesberry was caught via hidden camera injecting something into the trachea of horse at the Windsor Raceway.  The injected horse finished sixth in that race. Just over a month later Riesberry was arrested as he was heading into the Raceway grounds. A search of his truck revealed a syringe filled with performance-enhancing drugs.

Testing of the contents of the syringe revealed that it was a combination of drugs which, when not administered on a race day, are perfectly legal and have a therapeutic purpose. However, because the side effects of combination include a performance enhancing effect, administering it on race day is prohibited. Additionally, regardless of the contents of a syringe, no trainer is permitted to possess a loaded syringe at a racetrack.

Riesberry was charged with:

  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 wording of these charges was of some significance at trial. The trial judge held that the use of the term “members of the public” meant that the Crown could not rely on fraud or cheating directed at other racers.

The trial judge concluded that Riesberry had injected performance enhancing drugs in to the horse in the incident captured on camera and had attempted to do the same on the day he was apprehended. The trial judge further concluded that Riesberry:

  • was not using the drug for therapeutic purposes
  • knew of the ban on syringes on race days
  • had tried to sneak a loaded syringe into the track
  • and had done the forgoing with the intent to give his horse an unfair advantage.

Notwithstanding these findings the trial judge acquitted Riesberry. On the fraud counts the trial judge found that the Crown had failed to establish a deprivation. The trial judge held that:

  • no evidence had been called about whehther any member of the betting public placed or did not place a bet because of the injection
  • the betting public did not participate in the rage, rather they only wagered on the outcome
  • the real victims, if any, would have been the participants in the race (but the indictment wasn’t particularized that way)
  • there was no evidence about the amounts of the bets on the races at issue.
  • even if the public had suffered a deprivation is was too remote

On the gaming counts the trial judge found that horseracing not a game captured by section 197 of the Code as it is a game of pure skill that does not include an element of chance.

A unanimous Ontario Court of Appeal held that horseracing bettors are in a similar position as investors:

Just as investors were entitled to rely on the accuracy of the financial statements, bettors were entitled to assume compliance with the regulatory scheme. What occurred in this case was not a minor breach or minor non-compliance with the regulatory scheme. Where there is an attempt (successful or not) to affect the outcome of a race through the use of banned performance-enhancing substances, such a significant breach of the regulatory scheme necessarily places bettors at risk of being deprived of their bets. Indeed, as the trial judge found, the very purpose of the injection was to create “an unfair advantage” for the respondent’s horse. It is obvious that a horse injected with performance-enhancing drugs could run differently than if it was not so injected; in fact, that appears to be at least part of the reason for the prohibition. @para 21

The Appellate Court found that the trial judge had also erred in finding that horseracing was not a game as contemplated by section 197 of the Code. In fact horseracing, the Court of Appeal found is precisely the type of game of mixed of skill and chance that the section provides for.

Moreover the Court gave short shrift to the trial judge’s assessment of the remoteness of the risk of deprivation, holding that:

bettors were entitled to rely on compliance with the regulatory scheme. It is no answer to say they also relied on other factors in making their bets. As the trial judge observed in this section of his reasons addressing cheating while playing a game, had they known about the doping, some bettors would likely have changed their behavior, while others would not. Thus, as a group, the betting public was deprived of information about the race that they were entitled to know; they were also deprived of an honest race run in accordance with the rules. As we said in the previous section of these reasons, in our view, the trial judge erred in law in failing to consider the regulatory scheme in relation to the issue of deprivation. @para 33

In a relatively unusual step the Court of Appeal substituted verdicts of guilt on the fraud charges. The Court of Appeal found that the trial judge had made all of the necessary findings of fact to support a conviction for fraud and attempted fraud but had used the wrong legal test in reaching his conclusion. Thus, the convictions were entered and the matter back to the trial judge for sentencing.

A different remedy however, was imposed on the cheating and gaming counts. The Court found that “while the respondent could reasonably have been convicted if the correct legal test were applied” the necessary findings of fact had not been made to enter convictions. The trial judge did not conclude that the race even met the section 197 definition of a game or whether a particular form of cheating had impacted on the game. Since these necessary findings of fact had not been made, a new trial was ordered on those counts.