IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) and

Transcription

1 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO) File no BETWEEN: DEREK RIESBERRY Appellant (Respondent) and HER MAJESTY THE QUEEN Respondent (Appellant) RESPONDENT S FACTUM HER MAJESTY THE QUEEN, RESPONDENT Rule 42 of the Rules of the Supreme Court of Canada Ministry of the Attorney General Crown Law Office Criminal 720 Bay Street, 10th floor Toronto, Ontario M7A 2S9 Matthew Asma and Mike Kelly Telephone: Facsimile: matthew.asma@ontario.ca mike.kelly@ontario.ca Counsel for the Respondent, the Attorney General for Ontario Burke Robertson LLP 441 MacLaren Street, Suite 200 Ottawa, Ontario K2P 2H3 Robert E. Houston, Q.C. Telephone: Facsimile: rhouston@burkerobertson.com Ottawa Agent for the Respondent, the Attorney General for Ontario

2 Lafontaine & Associates 330 University Avenue, Suite 506 Toronto, ON M5G 1R7 Gregory Lafontaine Telephone: Facsimile: Counsel for the Appellant, Derek Riesberry Supreme Advocacy LLP 340 Gilmour St., Suite 100 Ottawa, ON K2P 0R3 Eugene Meehan, Q.C. Marie-France Major Telephone: Facsimile: Ottawa Agent for the Appellant, Derek Riesberry

3 Respondent s Factum i Riesberry v. R., TABLE OF CONTENTS Table of Contents... 1 Part I: Overview and Statement of Facts... 1 A. Respondent s Position... 1 B. Statement of Facts... 2 Part II: Question in Issue... 3 Part III: Statement of Argument... 4 A. Introduction... 4 B. The legislation in issue... 6 C. Statutory history... 7 (i) The history of cheating at play in the Code... 7 (ii) The history of game in the Code... 9 D. Interpreting section (i) Principles of statutory interpretation (ii) Purposive interpretation of section (iii) Interpretation of the English offences E. Application to the present case F. Deceit adding an element of chance G. Question of mixed fact and law Part IV: Costs Part V: Order Sought Part VI: Table of Authorities a. Statutes and Regulations b. Texts c. Jurisprudence Part VII: Statutes & Regulations Criminal Code, s. 197(1), s.v. bet and game Criminal Code, s Criminal Code, s. 691(2) Rules of Standardbred Racing, 2008, ch. 2, s.v. post position Rules of Standardbred Racing, 2008, rr Supreme Court Act, s. 40(3)... 22

4 Respondent s Factum 1 Riesberry v. R., PART I: OVERVIEW AND STATEMENT OF FACTS A. Respondent s Position 1. The trial judge s undisputed error in acquitting the appellant entitles the Crown to a new trial on the charges of cheating at play. The appellant had injected his race horse with a performance-enhancing drug, intending to obtain advantage in an official race upon which members of the public had wagered thousands of dollars. By doping his race horse, the appellant imposed a risk of loss on the betting public. His plea for an acquittal by this Court must be rejected. 2. This appeal turns on interpreting s. 209 of the Criminal Code. As relevant to this appeal, s. 209 prohibits cheating, while playing a game, with intent to defraud any person. There is no dispute that the appellant cheated, given the trial judge s factual findings. Rather the dispute in this Court relates to the game element: whether the horse race was a game, and whether victims must be co-competitors in the game. 3. The meaning of game is restricted by a partial definition in the Cr. Code and the jurisprudence, requiring that a systemic resort to chance must be built into the game. That restriction limits what counts as a game. The appellant seeks to impose a new, parallel restriction to also limit the meaning of any person a move that is not justified by the statute or by case law. 4. The appellant would interpret the section so that doping his race horse does not make him guilty of cheating the public who were betting on the outcome. He says he can only be guilty of cheating the other competitors (which is not the charge against him). If the appellant is right, then members of the public who had legally bet money on the horse race, expecting it to be run fairly and in compliance with the law, were not cheated by him doping his race horse and depriving them of a fair result. 5. The appellant is wrong. The requirement of a systemic resort to chance begins and ends with proof that the horse race was a game. There is no further requirement that the people who were cheated were people playing the game. The appellant s novel interpretation would undermine the purpose of the section and should be rejected.

5 Respondent s Factum 2 Riesberry v. R., B. Statement of Facts 6. The appellant s statement of facts is accurate. The respondent also relies on the facts stated in the respondent s factum in the fraud appeal, and adds the following facts relevant to the cheating offences. 7. Standardbred horse racing has elements of both skill and chance. Uncontested evidence at trial showed that a systemic element of chance consists in the determination of the horse s starting position, called post position ( position de départ ). Post positions are determined by a random post position generator on the Standardbred Canada computer system. The computer draws at random from among the horses entered in a given race to determine which horse starts in which post position. The more advantageous post positions are those closer to the inside rail of the track, since those post positions offer the shortest travelling distance around the track. Evidence of J. Locke, R.R. tab 2 at p. 37 line 28 p. 38 line 20 Evidence of S. Spencer, R.R. tab 3 at p. 63 line 15 p. 64 line The random determination of post positions is legally mandated by the Rules of Standardbred Racing, 2008 [the Rules], a regulation made by the Ontario Racing Commission under authority of the Racing Commission Act, The Rules, specifically rules and 17.10, require that entrants post positions must be drawn by lot from among the entered and eligible horses that are selected to start the race. Racing Commission Act, 2000, S.O. 2000, c. 20, s. 11(1) [R.B.A. tab 1, at p. iv] Rules of Standardbred Racing, 2008, ch. 2 (s.v. post position ) and ch. 17, rr [R.B.A. tab 1, at p. 6 and p. 52] 9. Federal regulations require that after post positions are drawn, that information must be made available to the public, before bettors place their bets on a race. Pari-Mutuel Betting Supervision Regulations, S.O.R./91-365, r. 26(1)(c) [R.B.A. tab 2 at pp ]

6 Respondent s Factum 3 Riesberry v. R., PART II: QUESTION IN ISSUE 10. The respondent accepts the appellant s statement of the question in issue: Did the Court of Appeal err by concluding the trial judge erred in his interpretation of a game as defined in ss. 197 and 209 of the Criminal Code? 11. The respondent s position is that the trial judge did err in law by finding that standardbred horse racing was not a game within the meaning of the Cr. Code, and therefore the Court of Appeal did not err in granting the Crown a new trial on the charges of cheating at play and attempted cheating at play.

7 Respondent s Factum 4 Riesberry v. R., PART III: STATEMENT OF ARGUMENT A. Introduction 12. The appellant does not dispute the Court of Appeal s holding that the trial judge erred by failing to consider whether standardbred horse racing is a game of mixed chance and skill. By relying on a decision from the Iowa Supreme Court, the trial judge misdirected himself as to the law of Canada. Harless v. U.S. (1843), 1 Morris 169 (Iowa Sup. Ct.) [R.B.A. tab 16] Reasons for Judgment at trial, R.R. tab 1, p. 13 line 18 p. 15 line 20 Reasons of Court of Appeal, A.R. tab 1B, pp , paras However the appellant says the Crown is not entitled to a new trial because there is a separate reason the appellant should have been acquitted. He says that while there is an element of chance in the random selection of post positions, it is not a systemic resort to chance that affected the bettors who were the victims of his cheating. 14. It is true, as the appellant emphasizes, that post positions are published before a race. Bettors therefore have the opportunity of knowing, before they place their bets, which horses are assigned to which post positions. But the appellant is wrong when he argues that drugging a horse to affect the outcome of a race cannot make out the charge of cheating the betting public. 15. The appellant s argument is wrong because it confuses two parts of standardbred horse racing that are factually and legally distinct. The two parts are: The race Licensed competitors enter their horses in a given race. Qualified entrants are drawn randomly to determine which entrant gets which starting post position. Later, the competitors race their horses, and can win prize money depending on the finishing order of their horses. The betting After post positions are assigned, information about the upcoming race, including the post positions, is made available to the public. Members of the public bet money on the outcome of the race. The race is run. Money is paid out to bettors who placed winning bets.

8 Respondent s Factum 5 Riesberry v. R., The offence of cheating at play also involves two separate elements: 1. Cheating while playing a game, and 2. Intent to defraud any person. 17. A decision of this Court, Ross, requires the prosecution to prove that an activity involves a systemic resort to chance in order to be a game for purposes of the Cr. Code. But, nothing requires that there also be a systemic resort to chance in relation to the means of the intended fraud. Ross, Banks & Dyson v. R., [1968] S.C.R. 786 [Ross] [A.B.A. tab 3] 18. In other words, the game in which the accused cheated must involve a systemic resort to chance, but there is no requirement that the betting by the victims involves a systemic resort chance. 19. Here, the random assignment of post positions, as required by the Rules, is a systemic resort to chance sufficient to make a standardbred horse race a game of mixed chance and skill. The betting public do not need to be affected by the random assignment of post positions. The betting public only need to be affected by the cheating. The Cr. Code prohibits cheating with intent to defraud any person. The offence explicitly is not limited only to cheating with intent to defraud competitors in the game. 20. This appeal poses a question of statutory interpretation. The respondent s submissions proceed from the history of the sections in issue to a purposive interpretation of them. Ultimately the respondent submits that the appellant s position requires an untenable interpretation of the section, and therefore the appeal should fail and the Court of Appeal s order for a new trial should be affirmed.

9 Respondent s Factum 6 Riesberry v. R., B. The legislation in issue 21. Section 209, appearing in Part VII of the Cr. Code, reads: 209. Cheating at play Every one 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 an indictable offence and liable to imprisonment for a term not exceeding two years. The meaning of game is restricted by a partial definition given earlier in Part VII: 197. (1) Definitions In this Part, game means a game of chance or mixed chance and skill; Criminal Code, s. 197 and s. 209 [R.B.A. tab 3] 22. The meaning of mixed chance and skill was elaborated by this Court in Ross. In that case it was argued that a card game, bridge, was a game in which the importance of skill outweighed the importance of chance. It was argued that the predominance of skill over chance should take the game of bridge outside the category of mixed chance and skill. But the majority (per Pigeon J.) held that relative proportions of skill and chance are irrelevant, since the definition of game only excludes matters of pure skill: And further: The word mixed implies no indication of the respective proportions of the two elements. Nothing shows that they must be equal or nearly so. Nothing indicates which is to be preponderant. It seems clear that the Parliament of Canada sought to avoid the uncertainties involved in trying to ascertain the predominant factor in mixed games by enacting that they would be treated in the same way as games of pure chance. Ross, supra at 789 [A.B.A. tab 3] Foll d R. v. Kelly, [2008] EWCA Crim 137 at paras [R.B.A. tab 17] 23. A second important point arises from Ross. The kinds of chance contemplated by the Cr. Code do not include unexpected accidents. Rather, only chance that is built into the system makes a game one of mixed chance and skill :

10 Respondent s Factum 7 Riesberry v. R., [W]hen the statute speaks of chance as opposed to skill, it is clear that it contemplates not the unpredictables that may occasionally defeat skill but the systematic resort to chance involved in many games such as the throw of dice, the deal of cards. Ross, supra at 791 [emphasis added] [A.B.A. tab 3] 24. After Ross, to be a game of mixed chance and skill there must be systemic resort to chance in the game, but the relative proportions of chance and skill are immaterial. C. Statutory history (i) The history of cheating at play in the Code 25. The criminal offence of cheating at play traces its origins to a series of English statutes. These began in with the first enactment of a penalty for cheating in gaming. The 1664 provision was updated in , and then replaced in with the enactment of a new criminal offence. The 1845 enactment was subject to the codification efforts of the late 19th century in both England and Canada, and consequently a version of the 1845 offence was included in Canada s original Criminal Code in Street, Howard A., The Law of Gaming (London: Sweet and Maxwell Ltd., 1937) at [R.B.A. tab 8] Stephen, J.F., A Digest of the Criminal Law (Crimes and Punishments) (London: MacMillan & Co., 1887), art. 333 [R.B.A. tab 9] Burbidge, G.W., A Digest of the Criminal Law of Canada (Crimes and Punishments) Founded by Permission on Sir James Fitzjames Stephen s Digest of the Criminal Law (Toronto: Carswell & Co., 1890), art. 439 [R.B.A. tab 10] Rodrigues, G.P., ed., Crankshaw s Criminal Code of Canada, looseleaf (Toronto: Carswell, 1993), s. 209 [R.B.A. tab 11] 26. The purpose of the 1845 statute was to impose restraint in unlawful Gaming and to prevent the Mischiefs which may happen therefrom. Among its provisions was the creation of the criminal offence of cheating at play: 1 An Act against deceitful, disorderly and excessive Gaming (U.K.), 16 Char. II, c. 7, s. 3 2 An Act for the better preventing of excessive and deceitful Gaming (U.K.), 9 Anne, c. 14, s. 5 3 An Act to amend the Law concerning Games and Wagers (U.K.), 8 & 9 Vic., c. 109, s. 17

11 Respondent s Factum 8 Riesberry v. R., Cheating at Play to be punished as obtaining Money by false Pretenses. XVII. And be it enacted, That every Person who shall, by any Fraud or unlawful Device or ill Practice, in playing at or with Cards, Dice, Tables, or other Game, or in bearing a Part in the Stakes, Wagers, or Adventures, or in betting on the Sides or Hands of them that do play, or in wagering on the Event of any Game, Sport, Pastime, or Exercise, win from any other Person to himself, or any other or others, any Sum of Money or valuable Thing, shall be deemed guilty of obtaining such Money or valuable Thing from such other Person by a false Pretence, with Intent to cheat or defraud such Person of the same, and, being convicted thereof, shall be punished accordingly. Gaming Act 1845 (U.K.), 8 & 9 Vic., c. 109, preamble, and s. 17 [R.B.A. tab 4] 27. The 1845 offence was received into Canadian law, then re-enacted in substantially similar form in the Larceny Act of That was then replaced by s. 395 of the original Cr. Code of 1892, in language that is essentially the same as the present-day enactment. The 1892 Cr. Code stated: 395. Every one is guilty of an indictable offence and liable to three years imprisonment who, with intent to defraud any person, cheats in playing a game, or in holding the stakes, or in betting on any event. Larceny Act, R.S.C. 1886, c. 164, s. 80 [R.B.A. tab 5] Rodrigues, G.P., ed., Crankshaw s Criminal Code of Canada, looseleaf (Toronto: Carswell, 1993), p [R.B.A. tab 11] 28. Taschereau s annotated edition of the first Cr. Code cited both the Gaming Act 1845 and the Larceny Act as the two predecessors for s Taschereau, H.E., The Criminal Code of the Dominion of Canada as amended in 1893, with Commentaries, Annotations, Precedents of Indictments, &c., &c. (Toronto: The Carswell Co. Ltd., 1893), s. 395 [R.B.A. tab 12] 29. Notably, in the original Cr. Code the offence of cheating at play was located with the other fraud-related offences in Part XXVIII, titled Fraud. It was moved to join the other gaming-related provisions in the reorganization of the Cr. Code. Taschereau, supra, at pp. xxvi xxvii [R.B.A. tab 12] Rodrigues, supra at p [R.B.A. tab 11]

12 Respondent s Factum 9 Riesberry v. R., In England, the 1845 offence remained in force until its repeal and replacement by new legislation in Halsbury s Laws of England, 4th ed., vol. II(I) (London: Butterworths, 1990) at para. 579 [R.B.A. tab 13] Archbold: Criminal Pleading, Evidence and Practice 2005 (London: Sweet & Maxwell, 2005) at paras to [R.B.A. tab 14] Gambling Act 2005 (U.K.), 2005, c. 19, s. 42(6) [R.B.A. tab 6] (ii) The history of game in the Code 31. Recall that the meaning of game is restricted, but not comprehensively defined, by the Cr. Code: 197. (1) Definitions In this Part, game means a game of chance or mixed chance and skill; 32. This definition was added to the Cr. Code in the revisions. Before then, the term game was not defined for purposes of the offence of cheating at play, 4 and its meaning could be found by reference only to case law. Rodrigues, supra at p. 7-7, s.v. Game [R.B.A. tab 15] 33. In England, the learned author of The Law of Gaming declined to attempt an exhaustive definition of the term, but noted that according to English case law, horse races were considered games. The English Court of Appeal had confirmed in 1898 that horse racing fell within the meaning of game as used in the English statutes. Street, supra at p. 1 [R.B.A. tab 8] Woolf v. Hamilton, [1898] 2 Q.B. 337 (C.A.) [R.B.A. tab 18] 34. In Canada, at the time of the amendment, domestic case law applying the English statues was equally clear that horse racing was a game in Canadian law. McGillis v. Sullivan, [1947] O.R. 650 (C.A.) at [R.B.A. tab 19], aff d Sullivan v. McGillis and Others, [1949] S.C.R. 201 at 206 [R.B.A. tab 20] 35. It must be taken that Parliament knew this when the partial definition of game 4 The terminology of game of mixed chance and skill did appear elsewhere in the original Cr. Code in the original definition of gaming house, e.g.: Ross, supra at 790 [A.B.A. tab 3].

13 Respondent s Factum 10 Riesberry v. R., was enacted. Before the amendment, the term game included horse racing. After the amendment, horse racing remains a game as long as it includes any degree of systemic resort to chance as required by s. 197(1) and the Ross decision. D. Interpreting section The respondent submits the purpose of the offence of cheating at play, s. 209, is to protect the public against dishonesty in gaming and wagering activities where money or other property is at stake. The section should be interpreted in a way that favours realizing that purpose. Instead, the appellant s position would undermine it. The appellant s position should therefore be rejected. (i) Principles of statutory interpretation 37. The purpose of an enactment guides its correct interpretation. The modern approach to statutory interpretation requires that: the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Interpretations that fly in the face of Parliament s legislative intention should be avoided. Interpretations that result in irrational distinctions or absurd consequences should also be avoided. Interpretation Act, R.S.C. 1985, c. I-21, s. 12 [R.B.A. tab 7] Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at paras. 21, 27 [R.B.A. tab 21] R. v. Paré, [1987] 2 S.C.R. 618 at [R.B.A. tab 22] R. v. Proulx, [2000] 1 S.C.R. 61 at para. 92 [R.B.A. tab 23] (ii) Purposive interpretation of section The purpose of s. 209 is to protect the public against dishonesty in gaming and wagering activities where money or other property is at stake. The appellant s position would require an interpretation of s. 209 that creates an irrational distinction and flies in the face of that purpose.

14 Respondent s Factum 11 Riesberry v. R., It has been clear since the 1845 enactment that the criminal proscription against cheating at play is about protecting honesty in wagering when something of material value is at stake. Section 17 of the Gaming Act 1845 was explicit that it applied only when the accused had won any Sum of Money or valuable Thing from others.. Gaming Act 1845 (U.K.), 8 & 9 Vic., c. 109, s. 17 [R.B.A. tab 4] 40. The current Cr. Code version is broader, in that an accused need not win the money to be guilty, but Canadian courts have long held that there is no game unless money or money s-worth is at stake depending on the outcome. Thus the offence of cheating at play is about protecting monetary and similar interests. R. v. Wilkes; R. v. Hiscock; R. v. Robertson (1930), 55 C.C.C. 1 (Ont. C.A.) at 7-8 [R.B.A. tab 24] Roberts v. R., [1931] S.C.R. 417 [R.B.A. tab 25] R. v. Irwin, Garvin, Oliver and Cress (1982), 1 C.C.C. (3d) 212 (Ont. C.A.) at [R.B.A. tab 26] Di Pietro et al. v. The Queen, [1986] 1 S.C.R. 250 at 258, 262 [R.B.A. tab 27] 41. As noted above, 5 in the first Cr. Code cheating at play was located with the fraudrelated offences. This is another indication that the section s purpose is about ensuring honest dealings when gambling over money and things of material value. Although the section has since been moved to join the gaming-related offences, s. 209 still requires intent to defraud, consistent with its history and purpose. 42. There is a detailed scheme of regulations surrounding betting and horse racing in Canada. Indeed betting on horse racing is a crime, unless both the betting and the racing are conducted in compliance with the regulatory scheme. There can be no doubt that, in Parliament s view, legal betting on regulated horse races engages the public interest in honest dealings. The proscription against cheating at play is an important component of the regulatory scheme. But to adopt the narrow interpretation of s. 209 proposed by the appellant would undermine its contribution to the scheme. 5 See above at para. 29.

15 Respondent s Factum 12 Riesberry v. R., Criminal Code, supra, ss [R.B.A. tab 3] Pari-Mutuel Betting Supervision Regulations, supra [R.B.A. tab 2] Racing Commission Act, 2000, supra [R.B.A. tab 1] Rules of Standardbred Racing, 2008, supra [R.B.A. tab 1] 43. Importantly, s. 209 prohibits fraudulent cheating not only in relation to gaming, but also in betting. The definition of bet in the Cr. Code includes a bet that is placed on any contingency relating to a horse-race. It would create an irrational distinction, and be inconsistent with the purpose of the legislation, if cheating with fraudulent intent in betting on a horse race makes out the offence, but cheating in the conduct of the same race (if not a game ) does not. This irrational distinction follows only if the appellant s interpretation is adopted. The appellant s position should therefore be rejected. Criminal Code, supra at s. 197(1), s.v. bet [R.B.A. tab 3] (iii) Interpretation of the English offences 44. The appellate jurisprudence in England supports a broad interpretation of the offence of cheating at play. The 1845 version of the offence was the law in England until The English Court of Appeal held an accused was guilty of cheating in betting even if his fraud did not go directly to the act of betting, so long as his dishonesty materially affected the circumstances. The English Court of Appeal twice rejected an interpretation that would require dishonesty in the betting itself. R. v. Leon, [1945] K.B. 136 (C.C.A.) at [R.B.A. tab 28] R. v. Clucas; R. v. O Rourke, [1959] 1 All E.R. 438 (C.C.A.) at [R.B.A. tab 29] 45. The 2005 version of the offence, cheating at gambling, has also been interpreted broadly. In the case of Majeed, the English Court of Appeal rejected an argument that two accused, who had dishonestly rigged cricket matches, should be acquitted on the basis that while their cheating acts occurred in England, any affected betting had occurred abroad, outside of the jurisdiction of the English courts. The Court of Appeal held that the cheating acts and the culpable effects of the cheating need not coincide. R. v. Majeed, [2012] EWCA Crim 1186 at paras. 8, [R.B.A. tab 30] 6 See above at para. 30.

16 Respondent s Factum 13 Riesberry v. R., The analysis of the Court of Appeal in Majeed offers a good analog to the issue before this Court. In Majeed, so long as the cheating occurred in England it did not matter that the fraudulent effect was extraterritorial. Here, so long as the appellant s cheating occurred within a game involving systemic resort to chance, it does not matter that the bettors who were defrauded were betting outside of the game. It was sufficient here that the bettors were wagering on the game, and thus affected by the cheating; they need not have been playing in the game with the cheater. E. Application to the present case 47. Horse racing has long been recognized as a game in the sense used in the English statues, in both English and Canadian jurisprudence. 7 The issue in this appeal is whether standardbred horse racing conducted according to the Rules is also a game in the restricted sense used in the Cr. Code. In accordance with Ross, standardbred horse racing is a game if it involves a systemic resort to chance in any degree. 48. In the Rules for standardbred horse racing in Ontario, rules provide the systemic resort to chance sufficient to make standardbred horse racing a game. By law, post positions are randomly assigned. 8 The assignment of post positions is material because some post positions are more favourable than others It is not relevant that post positions are made known to the public before bets are made. 10 The contemporary offence of cheating at play only requires the prosecution to prove the accused cheated while playing a game with intent to defraud any person. The prosecution does not need proof of intent to defraud a co-competitor in the game. To hold otherwise, against the plain wording of the statute, would undermine the intent of Parliament in enacting s The decision in Ross is no authority for the appellant s claim that the victims 7 See above at page 9, under The history of game in the Code. 8 See above at para See above at para See above at para. 9.

17 Respondent s Factum 14 Riesberry v. R., must be participants in the game before a cheater can be guilty. The Ross case involved a different charge altogether: the offence of keeping a common gaming house (now s. 201). The majority decision in Ross speaks to what is a game, but does not address what is cheating or who can be a victim of cheating. The dissent in Ross got closer to the position pressed by the appellant here. The dissenting judgment argued that after a hand of cards is dealt, the systemic resort to chance in the game of bridge is exhausted, and from that point the player s skill is the determining factor, therefore bridge is not a game. But, the majority of this Court disagreed with that dissenting view. Ross, supra at 799 (dissent) [A.B.A. at tab 3] Also see Kelly, supra at para. 11(viii) [R.B.A. tab 17] F. Deceit adding an element of chance 51. An act of deceit can turn what is otherwise a game of pure skill into one of mixed chance and skill. In the present case, even if randomly assigning post positions is not enough for standardbred horse racing to be a game of mixed chance and skill generally, here the appellant s cheating act of injecting his horse with performance-enhancing drugs was sufficient to add an element of chance, such that this horse race became a game of mixed chance and skill. 52. This analysis follows from this Court s decision in McGarey, where Spence J. for the unanimous Court accepted that a carnival game of milk bottle toss was, if played fairly, a game purely of skill and thus not a game subject to the proscription against cheating at play. But the carnival operator had invisibly weighted the bottles that were placed at the bottom of the pyramid (the goal of the game being to knock over the entire pyramid), such that the bottles would not tip over as readily as should be expected when struck by a player s ball. This modification was not made known to members of the public who paid money to play the game. This Court held that by this deception of secretly weighting the bottles, the operator turned a game of pure skill into a game of mixed skill and chance. Spence J. continued:

18 Respondent s Factum 15 Riesberry v. R., It is by the use of bottles varying so markedly in weight that the game of skill which appeared to face the patron was changed to a game of mixed skill and chance and, in fact, the chance all weighed against the patron. McGarey v. R., [1974] S.C.R. 278 at [R.B.A. tab 31] Cf. R. v. Reilly (1979), 48 C.C.C. (2d) 286 (Ont. C.A.) [R.B.A. tab 32] 53. Here, injecting a race horse with performance-enhancing drugs is the same as weighting the bottles. It puts bettors up against an unknown element, contrary to their legitimate expectation of a race to be run fairly according to the Rules. The appellant s dishonest act therefore added a hidden element of chance to the race. Even if standardbred horse racing and betting thereupon is ordinarily a matter of skill alone (as the trial judge and the appellant both argue), here an element of chance was injected by the appellant s conduct, and the race was transformed into a game of mixed chance and skill. 54. The Crown made this alternative argument in the court below. The Court of Appeal held the argument was too factual to permit the appeal court to convict on this basis, but granted a new trial on the cheating counts so that a trier of fact can make the relevant factual findings. Reasons of Court of Appeal, A.R. tab 1B, paras G. Question of mixed fact and law 55. The appellant asks this Court to acquit him by deciding a question of mixed fact and law in his favour (A.F. paras ). However this Court s jurisdiction in this appeal is limited to questions of law. The appellant s factual arguments can be dealt with at the new trial. Criminal Code, s. 691(2)(c) appeal only on a question of law Cf. Supreme Court Act, s. 40(3) leave to appeal not available under s. 40

19 Respondent s Factum 16 Riesberry v. R., Neither party seeks costs. PART IV: COSTS PART V: ORDER SOUGHT 57. The respondent requests that the appeal be dismissed. All of which is respectfully submitted this 5th day of August, 2015, by Matthew Asma & Mike Kelly Matthew Asma & Mike Kelly counsel for the respondent, the Attorney General for Ontario

20 Respondent s Factum 17 Riesberry v. R., PART VI: TABLE OF AUTHORITIES a. Statutes and Regulations Criminal Code, R.S.C. 1985, c. C-46, ss , < Criminal Code, R.S.C. 1985, c. C-46, s. 691(2), < Gambling Act 2005 (U.K.), 2005, ch. 19, < Gaming Act 1845 (U.K.), 8 & 9 Vic., c. 109, < Interpretation Act, R.S.C. 1985, c. I-21, s. 12, < 21, , Larceny Act, R.S.C. 1886, c. 164, s Pari-Mutuel Betting Supervision Regulations, S.O.R./91-365, < Racing Commission Act, 2000, S.O. 2000, c. 20, < 9, 42 8, 42 Rules of Standardbred Racing, 2008, by the Ontario Racing Commission 8, 42, 48 Supreme Court Act, R.S.C. 1985, c. S-26, s. 40(3), < b. Texts Archbold: Criminal Pleading, Evidence and Practice 2005 (London: Sweet & Maxwell, 2005) Burbidge, G.W., A Digest of the Criminal Law of Canada (Crimes and Punishments) Founded by Permission on Sir James Fitzjames Stephen s Digest of the Criminal Law (Toronto: Carswell, 1890) Halsbury s Laws of England, 4th ed. (London: Butterworths, 1990) 30 Rodrigues, G.P., ed., Crankshaw s Criminal Code of Canada, looseleaf (Toronto: Carswell, 1993) Stephen, J.F., A Digest of the Criminal Law (Crimes and Punishments) (London: MacMillan & Co., 1887) 25, 27, 29, Street, Howard A., The Law of Gaming (London: Sweet and Maxwell, 1937) 25, 33 Taschereau, H.E., The Criminal Code of the Dominion of Canada as amended in 1893, with Commentaries, Annotations, Precedents of Indictments, &c., &c. (Toronto: Carswell, 1893) 28, 29

21 Respondent s Factum 18 Riesberry v. R., c. Jurisprudence Clucas, R. v.; R. v. O Rourke, [1959] 1 All E.R. 438 (C.C.A.) 44 Di Pietro et al. v. The Queen, [1986] 1 S.C.R. 250, < 40 Harless v. U.S. (1843), 1 Morris 169 (Iowa Sup. Ct.) 12 Irwin, Garvin, Oliver and Cress, R. v. (1982), 1 C.C.C. (3d) 212 (Ont. C.A.) 40 Kelly, R. v., [2008] EWCA Crim 137, < 22, 50 Leon, R. v., [1945] K.B. 136 (C.C.A.) 44 Majeed, R. v., [2012] EWCA Crim 1186, < McGarey v. R., [1974] S.C.R. 278, < 52 McGillis v. Sullivan, [1947] O.R. 650 (C.A.), < aff d Sullivan v. McGillis and Others, [1949] S.C.R. 201, < 34 Paré, R v., [1987] 2 S.C.R. 618, < 37 Proulx, R. v., [2000] 1 S.C.R. 61, < 37 Reilly, R. v. (1979), 48 C.C.C. (2d) 286 (Ont. C.A.) 52 Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27, < 37 Roberts v. R., [1931] S.C.R. 417, < 40 Ross, Banks & Dyson v. R., [1968] S.C.R. 786, < 17, 22-24, 32fn, 35, 47, 50 Wilkes, R. v.; R. v. Hiscock; R. v. Robertson (1930), 55 C.C.C. 1 (Ont. C.A.) 40 Woolf v. Hamilton, [1898] 2 Q.B. 337 (C.A.) 33

22 Respondent s Factum 19 Riesberry v. R., PART VII: STATUTES & REGULATIONS Criminal Code, s. 197(1), s.v. bet and game R.S.C. 1985, c. C-46 DEFINITIONS 197. (1) In this Part, bet means a bet that is placed on any contingency or event that is to take place in or out of Canada, and without restricting the generality of the foregoing, includes a bet that is placed on any contingency relating to a horse-race, fight, match or sporting event that is to take place in or out of Canada; game means a game of chance or mixed chance and skill; DÉFINITIONS 197. (1) Les définitions qui suivent s appliquent à la présente partie. «pari» Pari placé sur une contingence ou un événement qui doit se produire au Canada ou à l étranger et, notamment, un pari placé sur une éventualité relative à une course de chevaux, à un combat, à un match ou à un événement sportif qui doit avoir lieu au Canada ou à l étranger. «jeu» Jeu de hasard ou jeu où se mêlent le hasard et l adresse. Criminal Code, s. 209 R.S.C. 1985, c. C-46 CHEATING AT PLAY 209. Every one 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 an indictable offence and liable to imprisonment for a term not exceeding two years. TRICHER AU JEU 209. Est coupable d un acte criminel et passible d un emprisonnement maximal de deux ans quiconque, avec l intention de frauder quelqu un, triche en pratiquant un jeu, ou en tenant des enjeux ou en pariant.

23 Respondent s Factum 20 Riesberry v. R., Criminal Code, s. 691(2) R.S.C. 1985, c. C-46 APPEAL WHERE ACQUITTAL SET ASIDE 691. (2) A person who is acquitted of an indictable offence other than by reason of a verdict of not criminally responsible on account of mental disorder and whose acquittal is set aside by the court of appeal may appeal to the Supreme Court of Canada (a) on any question of law on which a judge of the court of appeal dissents; (b) on any question of law, if the Court of Appeal enters a verdict of guilty against the person; or (c) on any question of law, if leave to appeal is granted by the Supreme Court of Canada. [emphasis added] APPEL LORSQUE L ACQUITTEMENT EST ANNULÉ 691. (2) La personne qui est acquittée de l accusation d un acte criminel sauf dans le cas d un verdict de non-responsabilité criminelle pour cause de troubles mentaux et dont l acquittement est annulé par la cour d appel peut interjeter appel devant la Cour Suprême du Canada : a) sur toute question de droit au sujet de laquelle un juge de la cour d appel est dissident; b) sur toute question de droit, si la cour d appel a consigné un verdict de culpabilité; c) sur toute question de droit, si l autorisation d appel est accordée par la Cour suprême du Canada.

24 Respondent s Factum 21 Riesberry v. R., Rules of Standardbred Racing, 2008, ch. 2, s.v. post position by the Ontario Racing Commission pursuant to the Racing Commission Act, 2000, S.O. 2000, c. 20, s. 11(1) DEFINITIONS Post Position means the position assigned or drawn for a horse for the start of a race. Rules of Standardbred Racing, 2008, rr by the Ontario Racing Commission pursuant to the Racing Commission Act, 2000, S.O. 2000, c. 20, s. 11(1) At the time specified, one of the Judges or in the event of their in ability to be present the race secretary, or licensed delegate, shall unlock the box. The race secretary will be responsible to see that at least one licensed participant is present to witness the draw. An owner or agent of a horse with a declaration in the declaration box shall not be denied the privilege of being present. Declarations shall be listed, the eligibility verified, preference ascertained, starters selected, and post positions drawn. If it is necessary to reopen any race, public announcements shall be made at least twice and the box reopened at a definite time Starters and also eligibles for overnight events shall be drawn by lot from horses properly declared to start, except that preference shall be given according to a horse s last previous start in a purse race, other than races designated as schooling races, at the gait for which it is declared. In addition, preference shall be governed by the following: (a) If more than the required number of horses are declared in with the same preference date, the previous two preference dates shall apply. A race secretary may draw by lot if more than two previous preference dates are identical. These procedures are to be carried out at the time of the draw in the presence of licensed participants. (b) When a horse is racing for the first time at the gait declared, it shall have preference over other horses regardless of their preference dates. (c) If a declaration is made for a horse that has already been drawn in to start in a race that has not yet been con tested, the date of that un con tested race shall be its preference date. (d) The declarer shall be responsible for providing acceptable evidence of exact preference dates governed by eligible declarations or starts in un con tested races made at other tracks. (e) When a race has been reopened for additional declarations, preference shall be given those horses eligible and declared at the time declarations closed originally. (f) If conditions so specify, preference can be given two-year-olds, regardless of preference date. [emphasis added]

25 Respondent s Factum 22 Riesberry v. R., Supreme Court Act, s. 40(3) R.S.C. 1985, c. S APPEALS IN RESPECT OF OFFENCES (3) No appeal to the Court lies under this section from the judgment of any court acquitting or convicting or setting aside or affirming a conviction or acquittal of an indictable offence or, except in respect of a question of law or jurisdiction, of an offence other than an indictable offence. 40. APPELS À L ÉGARD D INFRACTIONS (3) Le présent article ne permet pas d en appeler devant la Cour d un jugement prononçant un acquittement ou une déclaration de culpabilité ou annulant ou confirmant l une ou l autre de ces décisions dans le cas d un acte criminel ou, sauf s il s agit d une question de droit ou de compétence, d une infraction autre qu un acte criminel. [emphasis added]