Fraud In Regulated Settings: Detrimental Reliance By The Victim Not Always Required

In the recent decision of R. v. Riesberry,1 the Supreme Court of Canada reiterated the elements that the Crown needs to prove to establish the criminal offence of fraud. Riesberry involved charges under ss. 209 (cheating while playing a game) and 380(1) (general offence of fraud) of the Criminal Code.

Evidence was brought at trial which showed that the accused, a licensed horse trainer, injected a horse with drugs with a view to improve the horse's performance during a race and later attempted to sneak syringes containing such substances into a race for the same purpose.

The trial judge acquitted the accused on all charges, concluding that (i) horse racing is not a "game" for the purpose of the offence of cheating while playing a game with the intent to defraud pursuant to s. 209 of the Criminal Code and (ii) there was no casual connection between the acts of the accused and any risk of loss for the betting public.

The Ontario Court of Appeal set aside the acquittals, found the accused guilty on the fraud counts and ordered a new trial with respect to the cheatings charges.

The Supreme Court dismissed the appeal brought by the accused, thereby confirming the Court of Appeal's decision. After determining that horse racing is a game of "mixed chance and skill" and that the accused's conduct could therefore constitute cheating while playing a game under s. 209 depending on the evidence, the Supreme Court went on to conclude that all components of the offence were present to enter convictions on the fraud counts.

Elements of the offence of fraud reiterated

Fraud, which consists of dishonest conduct that results in at least a risk of deprivation to the victim, is a typical criminal offence. To be established, the prosecution must prove a prohibited act (actus reus) and a subjective intent, the required state of mind (mens rea), beyond a reasonable doubt. Cromwell J, writing for a unanimous Supreme Court, reiterated that the elements required to establish the offence of fraud under the Criminal Code are the following: (i) for the actus reus, (a) an act of deceit, a falsehood or some other fraudulent means and (b) a risk of deprivation caused by same; and (ii) for the mens rea, subjective knowledge (a) of the prohibited act and (b) that same could have as a consequence the deprivation of another.

Proof of reliance on or inducement by dishonest conduct is unnecessary for certain fraudulent acts

On the fraud charges, the accused's main submission...