News & Media

Can an Appeal Court Enter Convictions on Certain Counts and Order a New Trial on Others?

January 07, 2016

s. 209 of the Criminal Code

Cheating at play

209 Every person who, with intent to defraud any person, cheats while playing a game or in holding the stakes for a game or in betting is guilty of

  • (a) an indictable offence and liable to imprisonment for a term of not more than two years; or
  • (b) an offence punishable on summary conviction.

The Supreme Court of Canada decided a case in 2015 regarding the rigging of horses where the accused was acquitted at trial, and subsequently convicted on appeal on some counts. 

The case, R. v. Riesberry, focused on the accused – a licensed trainer – drugging one horse, and attempting to drug another. He was charged with cheating while playing a game, defrauding the public, and attempting to repeat these offences. The accused was acquitted at trial, but the Crown appealed the decision, questioning the trial judge’s definition of a game and whether a horse race would apply. The appeals court entered convictions on the counts of fraud, opting to order a new trial on the cheating counts. 

The decision was appealed to the Supreme Court of Canada, who dismissed the appeal. On the count of cheating while playing a game, the Supreme Court of Canada found that calling a new trial was appropriate, as it would be up to a trier of fact to determine that a horse race is a game. Secondly, the Supreme Court upheld the Court of Appeal’s convictions on the counts of fraud because there was adequate evidence to convict on these charges. 

An interesting point in this case was the trial judge’s reliance on a US case in determining whether or not horse racing could be considered a game as falls under the definition outlined in the Criminal Code.

From the court document:

[10]                          The charges against Mr. Riesberry arise under s. 209 of the Criminal Code which provides that everyone is guilty of an offence who, “with intent to defraud any person, cheats while playing a game”. “Game” is defined as “a game of chance or mixed chance and skill”: s. 197(1). It follows that the Crown had to establish that a horse race is a game with at least some element of chance. The trial judge relied on the U.S. case of Harless v. United States, 1 Morris 169 (Iowa 1843), to conclude that a horse race is a game of pure skill.

[11]                          It is somewhat unclear to what extent the trial judge relied on this authority as stating the law in Canada. However, to the extent that he did so, he made a legal error. The statute considered by the U.S. court divided games into only two categories, games of chance and games of skill. That case, therefore, did not address a point that must be addressed under the Criminal Code. That point is whether horse racing is a game of mixed chance and skill. The applicable Canadian law on this point is found in Ross, Banks and Dyson v. The Queen, [1968] S.C.R. 786. There must be a “systematic resort to chance” to determine outcomes, not merely the “unpredictables that may occasionally defeat skill”: p. 791.

[12]                          Even if we were to accept that the trial judge was alive to this difference between the law as set out in Harless and Canadian law, he nonetheless erred by failing to consider evidence in the record 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.  I therefore conclude that the trial judge erred in law on this aspect of the case. 

Please, enter a valid value