Is horseracing a game? Maybe, says top court

The Supreme Court of Canada didn’t make a definitive decision on whether horseracing is a ‘game.’
The Supreme Court of Canada didn’t make a definitive decision on whether horseracing is a ‘game.’ REUTERS/Hamish Blair

Horseracing is a game of uncertainty. That also seems to apply to the question: is horse-racing considered a game as defined under s. 197 of the Criminal Code of Canada?

This question was the centrepiece in the case R. v. Riesberry, a decision released today by the Supreme Court of Canada.

Derek Riesberry, a horse trainer, was discovered to have tried to fix two horse races by drugging one horse before it entered a racing competition, and trying to do the same to another horse.

He had been acquitted at trial level for the charges of cheating while playing a game — because the trial court didn’t think horseracing fell under the Criminal Code definition of a game — defrauding the public, and attempting to commit the same offences.

The Crown appealed to the Court of Appeal of Ontario which disagreed with the trial judge’s acquittals. The appeal court ordered a new trial on the cheating counts, but convicted Riesberry on the fraud charges.

Unhappy with the Court of Appeal’s verdict, Riesberry appealed to the Supreme Court, which was to decide whether the appeal court make a mistake in finding him guilty on the fraud charges, whether there should be a re-trial on the cheating charges, and whether horseracing fits under the Criminal Code definition of a game.

The crux of the definition of game lay, in this case, in the fact that if horseracing did not fit under the Criminal Code definition of “game,” then the cheating charges against Riesberry would likely not hold up.

The SCC dismissed Riesberry’s appeal on the fraud convictions and ruled that Riesberry’s conduct was so dishonest as to constitute “other fraudulent means,” which put the betting public at risk of deprivation.

However, when it came to deciding whether horseracing is a game or not, the court wavered.

Justice Thomas Cromwell, writing on behalf of a unanimous 7-0 panel, agreed with the Court of Appeal in finding an error with how the trial judge assessed the concept of what constitutes a “game” under the Criminal Code.

While Cromwell agreed with the Court of Appeal that the trial judge erred in not considering evidence that shows that horse racing is a game, he concluded by saying: “Of course, whether the evidence actually establishes this will be for the trier of fact at the new trial to determine.”

While it is within the authority of the Supreme Court to have this question decided by a new trial judge, one can’t help it but think this is a missed opportunity to give firm direction on this question, and thereby avoid future uncertainty of the Criminal Code definition of what is and isn’t a game.

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