R v Riesberry: A Job for the Highest Court in the Land

So far, in R v Riesberry, the Supreme Court of Canada (“SCC”) was uncharacteristically laconic – in an oral judgment on the day of hearing, it “dismissed the appeal with reasons to follow.” As of now, the SCC has yet to release its reasons.

Having mulled over the Ontario Court of Appeal (“ONCA”) decision that precipitated the appeal, I, at first, had only one question: “this is a job for the highest court in the land?”

All legal complexities aside, the facts of the case intuitively lend themselves well to a relatively simple logical chain:

1. Man dopes horse before race;
2. Doping is cheating;
3. Ergo, man cheats;
4. Cheating harms people and should be punished.

I maintain that my surprise at the fact that this syllogism was tested at every level of court in our country is at least partially justified. Why this protracted saga?

Man does, indeed, dope horse before race

Riesberry was charged with fraud and attempted fraud, and cheating in a game as well as attempting to cheat in a game, in a context where the public wagered money on a horse race in excess of $5,000.

There was almost no question about the validity of the first logical proposition above. Riesberry did, indeed, dope a horse he entered into a race, by injecting performance-enhancing drugs into its trachea an hour before the race began. The trial judge found as much. Riesberry was caught on a security camera. Moreover, the trial judge found that Riesberry made the injection in order to give his horse an unfair advantage, and acted deceitfully. So far so good. You’d think there would be a criminal record or two entered.

But is he punished?

Not after the trial. On the fraud charges, the trial judge said that bettors are the public, and they weren’t actually deprived of anything, or risked being deprived (deprivation is an element of the offence of fraud). On the charges of fraud, the judge held:

• The public merely wagered on the race and didn’t participate, so it either faced no deprivation or its deprivation was too remote – it was the participants, if anyone, who lost or stood to lose anything;
• The betting public wasn’t deprived or at risk of deprivation because they didn’t rely on knowledge of doping or lack thereof to make their bets (R v Riesberry, 2014 ONCA 744, paras 11-12).

On the charges of cheating in a game, the trial judge held that:

• Horseracing isn’t a game within the meaning of the offence because it’s a game of pure skill, not of chance;
• The outcome of a bet is too remote from the act of doping, because betting on horses is an activity of pure skill, uninfluenced apparently by doping; and
• “‘The betting public was not deceived by cheating because they didn’t know about it’” (paras 14-16).

With the freedom to be less polite than the ONCA, I have to point out the perversity of this logic. On the whole, it seemed that the judge said the following:

• It’s no harm to me if I bet a million dollars on “Beacon of Honesty,” but Beacon of Honesty loses to “Cool Fraudster” because Fraudster was doped – it’s only Beacon’s owner who lost anything as a direct result of the doping. I was just using my skill in placing bets, so it’s my own fault if my skill didn’t measure up;
• It’s okay if you dope your horse as long as you keep it on the down low and don’t tell anyone about it so they don’t change their bets (as if you’d tell anyone anyway); and
• Horseracing is a game of pure skill (really?).

The ONCA wasn’t as explicitly unhappy with the trial judge as I just was, but they made two key observations:

• The betting public was, indeed, deprived or at risk of being deprived of their economic interests (i.e. their bets) because they were entitled to assume compliance with the extensive regulatory scheme which prohibited doping, so it doesn’t matter whether they specifically knew or did not know about this injection;
• The judge didn’t consider the possibility that games are not binary creatures, and that horseracing could be a game of skill and chance. No evidence or finding had been made in this regard (para 31).

The ONCA substituted convictions for acquittals when it came to fraud, and sent the game-related charges to a new trial to determine what kind of game horseracing is, after all.

Enter the Supreme Court

Although the SCC issued its decision orally and unanimously on the day of the hearing, and did not, therefore, seem to be excessively troubled by this case, I was left questioning why the Justices chose to fit this case into their hearing schedule at all. There must have been something about it that was a matter of significant general interest, apart from the narrow horseracing application. Had the SCC been concerned only with the equities to Riesberry and the good betting public, it would have been enough to deny leave to appeal and let the ONCA decision stand on its own without affirmation.

The bird’s eye view

On my second or third reading of the ONCA decision, I noticed that potentially, there is indeed a more significant general ratio. All you need to do is take a broader bird’s eye view. Read the following fragment broadly: “bettors were entitled to assume compliance with the regulatory scheme.” Now substitute any other group of people for “bettors” and you have a powerful statement that can apply in a whole host of situations. For example, “patients are entitled to assume doctors’ compliance with the regulatory scheme that governs doctors,” or “food buyers are entitled to assume farmers’ compliance with the regulatory scheme that governs food safety.”

Broadly read, Riesberry thus has the potential to reduce the burden on the Crown in proving deprivation or risk thereof in all fraud cases. Where the fraudulent act breaches a statutory scheme, proving the fraudulent breach itself would be enough to establish deprivation or risk thereof (assuming there is no issue of remoteness). There would be no need to show that the fraudulent act or representation was the reason for the deprivation. A victim of fraud may have had 99 reasons to make a bet or another decision, but as long as the regulatory scheme was one of the reasons, the breaching party is responsible for the deprivation (or risk) that results from the victim’s decision.

So Riesberry might not be a throwaway case, after all. Unless the SCC dismissed the appeal for completely different reasons than those proposed by the ONCA, we will soon get to see how broad a net the SCC intends Riesberry to cast into the turbulent waters of fraudulent seas. Until then, we wait.