CITATION: R. v. Kamermans, 2015 ONSC4110

COURT FILE NO.: CR 14-0046-00

DATE: 2015/JUNE/26

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v Rob Kamermans and Mary Kamermans

BEFORE: The Honourable Mr. Justice J. M. Johnston

COUNSEL: Counsel, for the Crown, Ms. J. White

Counsel, for the Respondents, self represented

HEARD: March 2, 2015

RULING

[1] This is a Ruling upon a Crown Application for Certiorari, seeking to quash the Order of Justice Hunter at the Ontario Court of Justice dated November 6th, 2014, wherein at the Preliminary Inquiry he dismissed Counts 2, 3, 4, 5 and 6. Justice Hunter committed both Respondents to stand trial on Counts 1, 7, 8, 10 and 11. Count 9 had previously been withdrawn at the commencement of the Hearing.

[2] Crown counsel argues that the learned Justice exceeded his jurisdiction and seeks an Order that the matter be remitted to the presiding Justice to consider the law and all of the evidence.

Background:

[3] The Preliminary Inquiry commenced on March 17, 2014 and continued to March 21 and resumed March 24 and 25 and July 16 and 28, 2014. The Reasons for Decision on the Preliminary Inquiry were released by Justice S. J. Hunter on November 6, 2014.

Decision of Justice Hunter:

[4] At paragraph 20 of his decision the presiding Justice stated:

Having reviewed 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.

[5] At paragraph 21 of his decision, he further stated:

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

[7] While Justice Hunter found that the essential elements of the offence was not made out, he found that both parties could be committed upon charges of fraud covering the time frames and locations of the various extra provincial clinics.

[8] The Crown argues that Preliminary Inquiry Justice Hunter committed a jurisdictional error by failing to consider all of the evidence in the Preliminary Inquiry, specifically: failing to consider the definition of false document set out in Section 321(b) of the Criminal Code of Canada. The Crown argues that the failure constitutes not only a legal error, but a jurisdictional error; such that the order dismissing Counts 2 to 6 ought to be quashed and the matter remitted to the Justice to consider all of the evidence and Section 321 of the Code.

Summary of Evidence taken at the Preliminary Inquiry:

[9] The Respondent, Mary Kamermans, is a registered nurse in the Province of Ontario. Dr. Rob Kamermans, her husband, is a doctor registered with the College of Physicians and Surgeons of Ontario. Together, the accused operated a medical clinic in Coe Hill, Ontario. Dr. Kamermans was licenced to practice medicine in the Province of Ontario.

[10] Following an extensive investigation by police, it is alleged that Dr. Kamermans and Mary Kamermans held “clinics” in hotels in various provinces, including Ontario, Nova Scotia, New Brunswick and Quebec and on on one occasion in British Columbia and were seeing upwards of 100 people a day. For the cash sum of $250.00 these patients received a B1 or B2 form [forms required pursuant to the Medical Marihuana Access Regulations: MMAR] signed by Dr. Kamermans . The B1 or B 2 form signed by a medial doctor entitled an individual to apply to Health Canada to receive a licence to possess and/or grow marijuana. In addition, people were seen in the clinic in Coe Hill for the sole purpose of having their B1 or B2 form signed. These individuals were charged $100.00 and in addition OHIP was billed.

[11] In order to qualify for a licence to possess marijuana, a person must either have a designated Category 1 condition (such as severe arthritis) or have another condition and must have seen a specialist for this condition, the specialist must have tried all other methods of treatment and such treatments failed. Finally, the specialist must concur that marijuana should be used. These are classed as Category 2 or 3 conditions.

[12] In the course of the investigation of the Respondents, police interviewed 43 specialists whose name appears on the various B2 forms submitted and signed by the accused doctor. In addition, police sent a questionnaire to the remaining specialists listed on the forms and received 130 responses. The evidence revealed that none of the medical specialists who knew the patient [listed on the forms] had recommended the use of marijuana by the patient. In most cases, even if the specialist knew the patient, they had not seen the patient for a considerable period of time, or had not treated them for the disorder listed on the B2 form. In many of the cases, the specialists never treated the patient and had not referred the patient to Dr. Kamermans for medical marijuana.

[13] Dr. Benier, a physician in Toronto, was hired by OHIP and the Anti-rackets Branch of the OPP to review patient files of those patients seen only at the Coe Hill clinic where OHIP was billed for the visit. Dr. Benier testified that, of the 1724 files that she reviewed, 1620 had been billed at a rate of $77.20.

[14] With regard to the B2 forms signed in Ontario by the accused doctor, Dr. Benier testified that on review of the files she found there was no indication that the specialist prescribed marijuana and that often times the last report from the specialist was eight to ten years old.

[15] It is the Crown position that there was evidence presented at the Preliminary Inquiry such that the Justice could have determined that a reasonably instructed jury could have returned a verdict of guilty on the forgery charge contrary to Section 366 of the Criminal Code of Canada. The Crown theory on the forgery charges is that the accused persons intentionally made a false document by creating documents which were false in some material particular and that Health Canada was induced by the document to believe that it was genuine.

[16] With respect to the charges from Provinces outside of Ontario, namely, Nova Scotia, New Brunswick, Quebec and British Columbia, the Crown contends the B1 and the B2 forms were signed and cash was obtained for doing so by the Respondents knowing that Dr. Kamermans was not entitled to sign the forms as a “licenced medical practitioner” and that they knew and intended for Health Canada to rely on the fact that a “licenced medical practitioner” had signed the forms and thus issue the licences for marijuana. While Dr. Kamermans was licenced in the Province of Ontario, he was not a licenced physician in Nova Scotia, New Brunswick, Quebec or British Columbia at the material time.

[17] The Crown theory for the forgery charge relating to activity in Ontario is :

In using the names of a specialist on the B2 form in Ontario, knowing that the specialist had not been spoken to and thus could not concur that the marijuana was the right course of action, Health Canada was misled into thinking that Dr. Kamermans was in compliance with the medical marijuana access regulations and therefore issued the licences.

Forgery:

[18] For purposes of this Application, the elements of forgery in Section 366 of the Criminal Code of Canada require the Crown to prove beyond a reasonable doubt:

(a) that the person has intentionally made a false document;

(b) that they have done so by creating documents which are false in some material particulars; and

(c) that another person has been induced by the belief that the document is genuine to do something within Canada.

[19] Section 321 of the Criminal Code of Canada defines “false document”, in part, as a document:

(b) that is made by or on behalf of the person who purports to make it but it is false in some material particular.

[20] Crown counsel argues that the Preliminary Inquiry Justice erred in concluding that the use of false names of specialists on the B2 forms signed in Ontario was not a forged document as defined in Section 366 of the Criminal Code of Canada and that a jury properly instructed could not find that this caused Health Canada to act on the document as though they were genuine . Further the Crown argues the Justice erred in concluding that a jury properly instructed could not find that in holding himself out as a licenced physician or medical practitioner in provinces other than Ontario, [when he was not licenced to practice in those provinces] that he and Mary Kamermans caused Health Canada to act on B1 and B2 forms as though they were genuine. Crown counsel argues the document was false and the Respondents knew it was false, because they knew Dr. Kamermans was not properly licenced outside Ontario.

Scope of Review

[21] The scope of review on Certiorari with respect to discharge must now be considered in view of the pronouncements from the Supreme Court of Canada in R.v. Deschamplain 2004 SCC 76, [2004] S.C.J. No. 73 (S.C.C.) and R. v.Sazant 2004 SCC 77, [2004] S.C.J. No. 74 (SCC). Both cases stand for the proposition that where the reasons of the Preliminary Inquiry Judge do not indicate the mandatory requirement of Section 548(1)(b) of the Criminal Code has been met, namely, that the Justice considered “the whole of the evidence”, the result is a loss of jurisdiction.

Analysis

[22] I now turn to analysis of the Crown Application applying the law.

[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) of the Criminal Code of Canada.

The Honourable Mr. Justice J. M. Johnston

Date: June 26, 2015