Gabriel Gordon Edelson

The Registrar of Alcohol, Gaming and Racing appealed from a Superior Court declaration that the GotSkill gaming system is not a game as defined under s. 197(1) of the Criminal Code.

The application judge had concluded that GotSkill was not a game of mixed chance and skill because a sufficiently skilled player could ultimately beat the machine.

The Court of Appeal allowed the appeal, holding that GotSkill is a game of mixed chance and skill.

The court clarified that under the Criminal Code, any game containing both elements of chance and skill—regardless of which predominates—falls within the definition of a game.

The presence of a systematic resort to chance when the game is played multiple times, combined with the skill element required in the game task, was sufficient to classify GotSkill as a game of mixed chance and skill.

David Livingston, Chief of Staff to the Premier of Ontario, and Laura Miller, Deputy Chief of Staff for Communications and Strategy, were charged with Breach of Trust by a Public Official, Commit Mischief to Data, and Unauthorized Use of a Computer.

The Crown abandoned the Breach of Trust charge.

The defendants were accused of directing the wiping of twenty computers in the Office of the Premier during the transition from Premier McGuinty to Premier Wynne in early 2013, allegedly to destroy records responsive to Freedom of Information requests and potential Legislative Standing Committee Production Orders related to the controversial cancellation and relocation of the Oakville and Mississauga gas plants.

The Crown alleged the defendants obtained administrative rights through deception and hired an outside IT consultant to indiscriminately wipe hard drives.

The defendants claimed they sought only to delete personal information and Liberal Party documents from departing staff computers.

Justice Lipson found Livingston guilty on both remaining counts (Attempt to Commit Mischief to Data and Unauthorized Use of a Computer) but acquitted Miller due to insufficient evidence of her knowledge of Livingston's deceptive means in obtaining administrative rights.

The defendants, David Livingston and Laura Miller, pleaded not guilty to charges of breach of trust by a public official, mischief to data, and unauthorized use of a computer.

The Crown withdrew the breach of trust count at the close of its case.

The defendants brought a motion for a directed verdict of acquittal on the remaining two counts.

The court found that while the Crown failed to establish that actual data was destroyed, there was sufficient evidence that the defendants attempted to commit mischief to data without legal justification or colour of right.

The motion was allowed in part on the mischief to data count, which was reduced to attempt to commit mischief to data.

The motion was dismissed on the unauthorized use of a computer count.