



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Kamermans, 2016 ONCA 117

DATE: 20160209

DOCKET: C60752

Gillese, Watt and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rob Kamermans and Mary Kamermans

Appellants

Paul Lewin, for the appellants

John Patton, for the respondent

Heard: February 2, 2016

On appeal from the judgment of Justice John M. Johnston
    of the Superior Court of Justice, dated June 26, 2015, granting certiorari and
    quashing the order of Justice Stephen J. Hunter of the Ontario Court of
    Justice, dated November 6, 2014, discharging the appellants, on several counts
    of forgery.

ENDORSEMENT

[1]

The appellants appeal from an order of a judge of the Superior Court of Justice
    quashing their discharge at the conclusion of a preliminary inquiry on several
    counts of forgery and remitting the case to the preliminary inquiry judge for
    consideration of the whole of the evidence including the essential elements of
    the offence of forgery.

The Background Facts

[2]

The appellants are husband and wife. The husband is a medical
    practitioner licensed to practise medicine in Ontario. The wife is a nurse.
    Together they operate a medical clinic in Coe Hill, Ontario.

[3]

The charges arise out of what is alleged to be an abuse of Health
    Canadas Medical Marijuana Licensing Scheme. The information upon which the
    appellants were jointly charged contained nearly a dozen counts including
    fraud, possession of the proceeds of crime and six counts of forgery one of
    which was withdrawn by the Crown.

[4]

At the end of the preliminary inquiry, the appellants were committed for
    trial on the fraud and possession of proceeds counts, as well as on a count of
    trafficking in a controlled substance as an other indictable offence in
    respect to the same transaction under s. 548(1)(a) of the
Criminal Code
.

[5]

The Crown alleged that the appellants operated a lucrative fraudulent
    scheme that involved the submission of forms required under the
Marijuana
    Medical Access Regulations
for patients who sought access to marijuana for
    medical purposes. The forms were submitted to Health Canada for approval. Each
    bore the signature of Dr. Kamermans.

[6]

The allegedly false declarations submitted to and relied upon by Health
    Canada fell into either of two categories.

[7]

One category involved declarations signed outside Ontario in clinics
    held by the appellants at various hotels in Nova Scotia, New Brunswick, Québec
    and British Columbia. There, for a fee, Dr. Kamermans would sign the Medical
    Practitioners Form even though he was not a medical practitioner in the
    province where he signed it. The inclusion of Dr. Kamermans Ontario address,
    the Crown argued, misled Health Canada about where the patients were seen.

[8]

The second category involved forms signed in Ontario where Dr. Kamermans
    was licensed to practise medicine. These forms, which required consultations
    with specialists to confirm the patients conditions, falsely claimed that such
    consultations had occurred.

The Discharge Decision

[9]

The essence of the reasons of the preliminary inquiry judge for
    discharging the appellants on the forgery counts appears in the following
    paragraphs of his reasons:

[20] Having viewed the documents, however, on their face, and
    the definition of forged within the meaning of Section 367, I have difficulty
    coming to the conclusion in law that the offence of forgery can be supported by
    the documents as presented.

[21] The essential elements that were indicated and the awkward
    wording of the declaration signed, apparently by Dr. Kamermans, do not appear,
    in my view, to meet the legal definition of forged.

[22] Both parties could be clearly committed on a charge or
    charges of fraud covering the timeframes and locations of the various
    extra-provincial clinics, and I am prepared to do so, but I would discharge
    them under the Section 367 offences as set out and enumerated in Counts 2
    through 6.

The Decision of the Reviewing Judge

[10]

In
    the Superior Court of Justice, the reviewing judge concluded that the Crown had
    established jurisdictional error on the basis that the preliminary inquiry
    judge had failed to consider the whole of the evidence adduced at the inquiry
    against the essential elements of the offence of forgery.

[11]

The
    final three paragraphs of the reviewing judges reasons explain why he reached
    this conclusion about jurisdictional error:

[23] There is a lack of discussion within the Reasons for
    refusal to commit under
Section 366
of the
Criminal Code
by the
    Preliminary Inquiry Justice. The Justice states that having reviewed the
    definition of 
forged within the meaning of Section 367 I have difficulty
    coming to the conclusion in law that the offence of forgery can be supported by
    the documents as presented
.  The failure to identify the description of
    false document and the Crown argument about
Section 321(b)
of the
Criminal
    Code of Canada
inescapably leads to the conclusion that the Preliminary
    Inquiry Justice did not assess the whole of the evidence against the correct
    elements of the offence of forgery. It is not clear from the Justices reasons
    if he did consider the elements of Section 321(b). Had the Justice considered
    the elements argued by the Crown, I find it is possible he may have reached a
    different conclusion.

[24] On a Certiorari Application this Court cannot impose its
    opinion as to whether or not the test for committal at the Preliminary Inquiry
    stage has been met.  However, in circumstances where the Preliminary Inquiry
    Justice fails to assess the whole of the evidence against the correct elements
    of the offence, jurisdictional error is completed.

[25] I find that there is no evidence that the Preliminary
    Inquiry Justice conducted the assessment required. Justices are not required to
    address every legal argument raised by counsel. Jurisdictional error occurs in circumstances
    such as this case, where there is an absence of reasons in where there is a
    real question as to whether the facts and law were properly applied. A
    reviewing court cannot be satisfied the requisite mandatory review was
    undertaken here. Accordingly, the dismissal on Counts 2 to 6 is quashed.  The
    matter is remitted to the Ontario Court of Justice and the Preliminary Inquiry
    Judge for consideration on the whole of the evidence including the elements of
    the offence of forgery as particularized in
Section 321(b)
the
Criminal
    Code of Canada
. [Emphasis added.]

The Governing Principles

[12]

Certiorari
is one of several remedies by which the superior court of criminal jurisdiction
    ensures that courts of limited jurisdiction remain within their jurisdictional
    limits. Part XVIII of the
Criminal Code
defines the jurisdiction of a
    judge or justice at a preliminary inquiry. A preliminary judge who fails to
    meet the statutory obligations imposed by Part XVIII of the
Criminal Code
acts
    in excess of his or her jurisdiction and risks intervention by the reviewing
    court:
R. v. DesChamplain
, 2004 SCC 76, [2004] 3 S.C.R. 601, at para.
    1.

[13]

It
    is well-settled that
certiorari
is available to quash both committals
    and discharges ordered at the conclusion of a preliminary inquiry. The scope of
    review is very limited. The same rule  jurisdictional error  governs whether the
    Crown seeks to quash a discharge or a person charged challenges committal:
R.
    v. Russell
, 2001 SCC 53, [2001] 2 S.C.R. 804, at paras. 27-28;
R. v.
    Dubois
, [1986] 1 S.C.R. 366, at p. 374.

[14]

Jurisdictional
    error may be shown where the preliminary inquiry judge has failed to test the
    evidence adduced at the inquiry against the essential elements of the offences
    charged:
Dubois
, at pp. 378-379;
R. v. Sazant
, 2004 SCC 77,
    [2004] 3 S.C.R. 635, at para. 25. It is perhaps unnecessary to add that the
    essential elements against which the preliminary inquiry judge tests the whole
    of the evidence must accurately reflect the legal requirements Parliament has
    prescribed:
Sazant
, at para. 25;
Russell
, at para. 28

[15]

Jurisdictional
    error may also be established if it can be shown that a preliminary inquiry
    judge preferred an inference favourable to an accused to an inference, also
    available on the evidence, favourable to the Crown:
Sazant
, at para.
    25. The limited weighing of circumstantial evidence in which a preliminary inquiry
    judge may engage does not involve drawing inferences, assessing credibility or
    considering the inherent reliability of evidence:
R. v. Arcuri
, 2001
    SCC 54, [2001] 2 S.C.R. 828, at paras. 23 and 30.

[16]

Jurisdictional
    error may also be demonstrated where the preliminary inquiry judge has failed
    to consider the whole of the evidence adduced at the inquiry in reaching his
    or her conclusion about committal or discharge:
Sazant
, at para. 25.

The Principles Applied

[17]

We
    are not persuaded that the reviewing judge erred in concluding that the
    preliminary inquiry judge committed jurisdictional error in discharging the
    appellants on the forgery counts. In our respectful view, the jurisdictional
    errors were three-fold.

[18]

First,
    as a result of his failure to properly define the essential elements of
    forgery, the preliminary inquiry judge concluded that there was no evidence
    that the appellants had made a false document in completing the various
    Medical Practitioners Forms in a province in which Dr. Kamermans was not
    authorized to practise medicine. This amounted to a failure to test the
    evidence adduced against the actual elements of forgery. To proceed in such a
    manner constitutes jurisdictional error:
Sazant
, at para. 25.

[19]

Second,
    the preliminary inquiry judge failed to consider the whole of the evidence
    adduced in reaching his conclusion to discharge the appellants. His focus was
    on a textual analysis of the Medical Practitioners Form, not the evidence
    adduced on the inquiry.

[20]

Third,
    in resting his conclusion to discharge the appellants in part at least because
    of a difficulty in drawing the inferences proposed by the Crown, the
    preliminary inquiry judge exceeded his jurisdiction. Whether an inference is
    easy, hard or difficult to draw is of no moment to a decision on committal.
    Provided the inferences advanced by the Crown are within the field of available
    inferences and provide evidence of each essential element of the offence,
    committal follows.

Conclusion

[21]

For
    these reasons, the appeal is dismissed.

E.E. Gillese J.A.

David
    Watt J.A.

M.
    Tulloch J.A.


