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 Canada’s 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nearly a dozen counts including fraud, possession of the proceeds of crime and six counts of forgery one of which was withdrawn by the Crown.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 Practitioner’s 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 judge’s 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 Justice’s 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 60 (SCC), [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 Practitioner’s 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 Practitioner’s 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.”