Horse race is a ‘game’ for the purposes of offence of cheating at play, discussed

Supreme Court of Canada: While deliberating upon the question that whether horse racing can be considered a ‘game’ as defined under Section 197 of the Criminal Code of Canada, the Court refrained from giving a definite answer to the question.

The question evolved in a case wherein, a horse trainer had 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 was charged with cheating and attempted cheating at a ‘game’, as well as for fraud and attempted fraud. The accused was acquitted at the trial stage for the charges of cheating because the trial court did not think horse racing fell under the Criminal Code definition of a ‘game’ defrauding the public, and attempting to commit the same offences. The Crown preferred an appeal to the Court of Appeal which disagreed with the view of the Trial Court and ordered a new trial against the accused on the grounds of cheating and, convicted the accused on the charges of fraud. The accused finally appealed to the Supreme Court to decide whether the Court of Appeal made a mistake in finding him guilty on the charges of fraud; whether there should be a re-trial; and whether horse racing fits under the Criminal Code definition of a ‘game’.

The crux of the definition of ‘game’ discussed in this case was that if horseracing does not fit under the Criminal Code definition of ‘game’, then the cheating charges against the accused would likely not hold up. The Court dismissed the appeal on the fraud convictions and ruled that the accused’s conduct was so dishonest as to constitute “other fraudulent means,” which put the public interested in betting at risk of deprivation. However, when it came to deciding that whether horse racing is a game or not, the Court wavered. Thomas Cromwell J., agreed with the Court of Appeal’s findings as to how erringly the trial judge assessed the concept of what constitutes a ‘game’ under the Criminal Code. While he agreed with the Court of Appeal that the trial judge erred in not considering the evidences that showed 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.” [R. v. Riesberry, 2015 SCC 65, decided on 18-12-2015]

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