[1994] 2 F.C. 33
A-1407-92
Michael J. Martinoff (Appellant)
v.
Her Majesty the Queen and N. D. Inkster (Respondents)
Indexed as: Martinoff v. Canada (C.A.)
Court of Appeal, Heald, Décary and Linden JJ.A.—Vancouver, November 16; Ottawa, December 13, 1993.
Criminal justice — Firearms — Appeal from dismissal of application for judicial review of RCMP Commissioner’s refusal to issue national business permit to sell firearms pursuant to Criminal Code, s. 110(5) — Not considering application on merits as not wanting to interfere with existing provincial administration of scheme — Commissioner having jurisdiction under ss. 110(5),(10) to issue permit effective in more than one province — No agreement with provinces can nullify power given Commissioner by Parliament — Commissioner ordered to consider application on merit but Court not dictating result as reasons may exist to deny permit or impose conditions in public interest.
This was an appeal from the Trial Judge’s dismissal of an application for judicial review of the RCMP Commissioner’s refusal to issue a national business permit to sell firearms across Canada pursuant to Criminal Code, subsection 110(5). The appellant has obtained provincial business permits allowing him to sell firearms in British Columbia each year since 1988. He now intends to carry on business throughout Canada, but cannot do so without a permit from the RCMP Commissioner or from the provincial firearms officer of each province in which he wishes to do business. The Commissioner refused to consider the application on its merits because he did not want to interfere with the longstanding practice of such permits being issued by the chief provincial firearms officers.
Held, the appeal should be allowed.
Any judicial consideration of Part II.1 of the Code must take into account the strict control of handguns which has been and remains an essential feature of Canadian gun control laws.
The Commissioner (or a person designated by him) may issue a permit which is effective in more than one province, according to subsection 110(5) when read together with subsection 110(10). Provincial officials who are entitled to issue these permits cannot give them extraprovincial effect, save in the exceptional situations outlined in subsection 110(10).
The Commissioner refused to exercise the authority given to him by Parliament. He expressly did not consider the application on its merits, as it was his duty to do. It was implicit in his decision that he would never issue a nation-wide permit, despite the fact that Parliament gave him the power to do so. The Commissioner’s refusal to exercise jurisdiction because he did not want to interfere with the existing provincial administration of the scheme amounted to a perception that he had been divested of the authority which Parliament had given to him by agreements with the provinces. No agreement with the provinces can nullify the power which Parliament has given to the Commissioner. Agreements can be made with regard to the administration and the operational cost of the gun control scheme, but the legal authority given to the Commissioner to issue permits cannot be completely obliterated by these agreements.
It would be inappropriate to require the Commissioner to issue a national licence. While the Court can require consideration of this application on its merits, it should not dictate the result. Valid reasons may exist for denying a national gun dealership permit. Although the appellant had already met the provincial safety standards, safety was but one factor to be considered. Furthermore, those same safety standards may not apply to a Canada-wide permit and there might be various conditions or limitations that the Commissioner would see fit to impose in the public interest.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Criminal Code, R.S.C., 1985, c. C-46, ss. 105(1)(a) (as am. by S.C. 1991, c. 40, s. 39), (2)(b)(i) (as am. idem), (5) (as am. idem), 108 (as am. idem, s. 20), 110(5) (as am. idem, s. 40), (10) (as am. idem, s. 23), 111 (as am. idem, s. 24), 112(4) (as am. idem, s. 26).
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Schwartz, [1988] 2 S.C.R. 443; (1988), 55 D.L.R. (4th) 1; [1989] 1 W.W.R. 289; 56 Man. R. (2d) 92; 45 C.C.C. (3d) 97; 66 C.R. (3d) 251; 88 N.R. 90; Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742 (C.A.).
DISTINGUISHED:
R. v. Morgentaler, [1988] 1 S.C.R. 30; (1988), 63 O.R. (2d) 281; 44 D.L.R. (4th) 385; 37 C.C.C. (3d) 449; 69 C.R. (3d) 1; 31 C.R.R. 1; 82 N.R. 1; 26 O.A.C. 1; Prince George (City of) v. Payne, [1978] 1 S.C.R. 458; [1977] 4 W.W.R. 275; 15 N.R. 386; 2 M.P.L.R. 162; 75 D.L.R. (3d) 1.
REFERRED TO:
Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92 N.R. 110; Toronto Newspaper Guild v. Globe Printing Co., [1953] 2 S.C.R. 18; [1953] 3 D.L.R. 561; (1953), 106 C.C.C. 225; 53 CLLC 15,056; Kahlon v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 386; (1986), 30 D.L.R. (4th) 157; 26 C.R.R. 152 (C.A.); Jefford v. Canada, [1988] 2 F.C. 189; (1988), 47 D.L.R. (4th) 321; 28 C.L.R. 266; 21 C.P.R. (3d) 28.
APPEAL from the trial judgment ([1992] 3 F.C. 648) dismissing the appellant’s application for judicial review of the RCMP Commissioner’s refusal to issue a national business permit to sell firearms pursuant to Criminal Code, subsection 110(5). Appeal allowed.
COUNSEL:
Douglas H. Murray for appellant.
Daniel L. Kiselbach for respondents.
SOLICITORS:
Street, Morrison & Murray, Vancouver, for appellant.
Deputy Attorney General of Canada for respondents.
The following are the reasons for judgment rendered in English by
Linden J.A.: Michael J. Martinoff, the appellant, is a gun collector in Vancouver, British Columbia, who is in the business of selling guns. He has been active in debates over legislation controlling firearms and has been before the courts a number of times, which is, of course, irrelevant to the legal issue in this case. That issue is whether the Commissioner of the Royal Canadian Mounted Police was legally correct in the way he handled Mr. Martinoff’s application for a Firearms and Ammunition Business Permit which would enable him to engage in the business of selling firearms across Canada in the same way as he is allowed to do so within the province of British Columbia pursuant to the provincial permit which he has obtained each year since 1988 from the officials in his province. (There was some question raised about the mootness of this appeal, since the date for which he seeks a permit has come and gone, but in my view this is a continuing problem and deserves resolution in any event. See Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342.
The appellant applied to the Commissioner of the RCMP for a national business permit pursuant to subsection 110(5) [as am. by S.C. 1991, c. 40, s. 40] of the Criminal Code, R.S.C., 1985, c. C-46, as amended, which reads:
110.…
(5) A permit to carry on a business described in paragraph 105(1)(a) or (b) … may be issued by the Commissioner, the Attorney General or the chief provincial firearms officer of the province where the business is or is to be carried on or by any person whom the Commissioner or the Attorney General designates in writing for that purpose, the fee payable on application for such a permit is the fee prescribed by regulation, and the permit remains in force until the expiration of the period, not exceeding one year, for which it is expressed to be issued, unless it is revoked before that expiration. [My emphasis.]
Such a permit could cover the business of “manufacturing, buying or selling at wholesale or retail, storing, importing, repairing, modifying or taking in pawn of restricted weapons or firearms” (paragraph 105(1)(a) [as am. idem, s. 39]) as well as the “manufacturing, buying or selling at wholesale or retail or importing of ammunition” (subparagraph 105(2)(b)(i) [as am. idem]).
As indicated above, Mr. Martinoff has obtained each year since 1988 business permits from the chief provincial firearms officer of British Columbia, pursuant to which he has carried on the business of selling firearms across British Columbia from his home at 6361 Granville St., Vancouver. He now wishes to carry on his business across Canada from his establishment, but he cannot do so without a permit from the Commissioner of the RCMP or from each of the provincial firearms officers in each of the provinces in which he wants to do business. This is so, because of subsection 110(10) [as am. idem, s. 23] of the Criminal Code which stipulates:
110.…
(10) No permit, other than
(a) a permit for the possession of a restricted weapon for use as described in paragraph (2)(c),
(b) a permit to transport a restricted weapon from one place to another place specified therein as mentioned in subsection (3),
(b.1) a permit that authorizes a person who does not reside in Canada to possess and carry a restricted weapon for use in a target shooting competition as mentioned in subsection (2.1),
(b.2) a permit that authorizes a holder of a registration certificate in respect of a restricted weapon to temporarily store the restricted weapon elsewhere than at the place at which that holder is otherwise entitled to possess it, as mentioned in subsection (3.1), or
(c) a permit authorizing an applicant for a registration certificate to convey the weapon to which the application relates to a local registrar of firearms as mentioned in subsection (4),
is valid outside the province in which it is issued unless it is issued by the Commissioner or a person designated in writing by him and authorized in writing by him to issue permits valid outside the province and is endorsed for the purposes of this subsection by the person who issued it as being valid within the provinces indicated therein. [My emphasis.]
In other words, except for the narrow circumstances of the listed situations, a permit issued by a provincial officer is not valid outside the province in which it is issued. Hence, Mr. Martinoff, to avoid having to apply to 10 different places, applied to the Commissioner of the RCMP for one trans-Canada permit on January 22, 1992.
In a letter dated February 27, 1992, the Commissioner responded as follows:
Dear Mr. Martinoff:
This has reference to your request dated January 22, 1992, for the issuance of a Firearms and Ammunition Business Permit pursuant to subsection 100(5) of the Criminal Code.
I must agree that, as you pointed out, I have the authority to issue the permit you seek. However, by virtue of subsection 110(5) of the Criminal Code, the Provincial Attorneys General or the Chief Provincial Firearms Officers (CPFO) have the same authority albeit within their respective jurisdictions. Section 111 of the Criminal Code provides for the establishment of federal/provincial agreements relating to the administration of subsection 110(5). It has been a long standing practice and, indeed, policy, in all provinces and territories for the CPFO/CTFO to issue business permits. I do not wish to interfere with the role of the CPFO/CTFO by commencing the issuance of business permits from my office.
Accordingly, I cannot review your application on its merits but suggest you contact the provincial/territorial authority in the province/territory in which you wish to do business.
Your postal money order in the amount of $250.00 is returned herewith.
The Trial Judge dismissed Mr. Martinoff’s subsequent application for judicial review on September 23, 1992 [[1992] 3 F.C. 648]. It is from that decision that this appeal has been launched.
Before dealing with the specific legal issues that arise in this case, I would like to refer for general guidance to the statement of Mr. Justice McIntyre in R. v. Schwartz, [1988] 2 S.C.R. 443, at page 483:
… there have been successive amendments which without exception have strengthened the controls upon possession and use of firearms. The history of this process is summarized by Martin L. Friedland, A Century of Criminal Justice (1984), commencing at p. 125. He concludes, at p. 128, with what may be considered a sober warning:
Canada has been fortunate in having had a gradual development of control over firearms for the past 100 years. We have never had to face a situation as in the United States today, which appears to many observers to be almost out of control.
This is a consideration which may well be significant in any judicial approach to the construction of Part II.1 of the Code. It is evident that the strict control of handguns has been and remains an essential feature of the Canadian gun control laws.
The first matter to resolve is whether the Commissioner has the power under subsection 110(5) to issue a permit that is valid beyond the borders of one province. Counsel for the Crown contended that there was no such authority granted to the Commissioner in the legislation, while counsel for Mr. Martinoff says that such a power is granted to the Commissioner. In my view, the words of subsection 110(5) read together with subsection 110(10) can lead to no other conclusion but that the Commissioner (or a person designated by him) may issue a permit which is effective in more than one province. On the other hand the provincial officials who are entitled to issue these permits cannot give them extra-provincial effect (save in the exceptional situations outlined in subsection 110(10)). This obviously is a consequence of the nature of our federal system of complementary administration of criminal justice. The Commissioner was, therefore, correct when he wrote in his letter of February 27, 1992, that he had the authority to issue the permit Mr. Martinoff sought.
The second question requiring resolution is whether the Commissioner refused to exercise the authority given to him by the statute or whether he was merely referring the matter to the provincial officials involved, as was contended by counsel for the Crown. In my view, it is impossible to find, considering the words used by the Commissioner in his letter, that he considered the application on its merits, as it was his duty to do. (See Toronto Newspaper Guild v. Globe Printing Co., [1953] 2 S.C.R. 18.) He specifically stated, “I cannot review your application on its merits.” If he had reviewed the matter on its merits, or if he thought he had done so, he would have said so.
The reason given by the Commissioner for refusing to exercise his jurisdiction—not wishing to interfere with the existing provincial administration of the scheme—is certainly understandable, but it is not well-founded in law. Implicit in the Commissioner’s decision is the position that the Commissioner would never issue a nation-wide permit, despite the fact that Parliament gave him the power to do so. In other words, by agreements with the provinces, which are certainly permitted by the statute (section 108 [as am. idem, s. 20] and section 111 [as am. idem, s. 24]), the Commissioner appears to take the view that he has been divested of the authority which Parliament had given to him. This cannot be. No agreement with the provinces can nullify the power which Parliament has given to the Commissioner. It is permissible, of course, for agreements to be made with regard to the administration and the operational cost of the gun control scheme, but the legal authority given to the Commissioner to issue permits cannot be completely obliterated by these agreements. By acting in the way he did, therefore, the Commissioner refused to exercise the jurisdiction given to him by Parliament, something he was not legally entitled to do. (See Globe Printing, supra.)
The third issue to consider is that of the appropriate remedy. It was contended that the Commissioner should be required to issue a national licence but I do not think that to be advisable. The jurisprudence on mandamus has recently been canvassed thoroughly in this Court in Apotex Inc. v. Canada (Attorney General), [1994] 1 F.C. 742, Robertson J.A. It is plain that, although this Court may require consideration, it does not dictate the result of such a process. (See Kahlon v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 386 (C.A.), at page 387, Mahoney J.A.; see also Jefford v. Canada, [1988] 2 F.C. 189 (C.A.), at page 192, Heald J.A.). In my view the cases involving the former abortion law of Canada (R. v. Morgentaler, [1988] 1 S.C.R. 30 and those dealing with the obligations of municipalities (Prince George (City of) v. Payne, [1978] 1 S.C.R. 458)) and other types of institutions are of little, if any, assistance in understanding this detailed legislative scheme.
It was contended that the only possible basis for the Commissioner refusing a permit would be safety reasons (see subsection 112(4) [as am. idem, s. 26]) and that since the provincial officials already approved the safety aspects of the business before granting the provincial permit, there is nothing left for the Commissioner to consider. This is wrong. I agree rather with the Trial Judge who wrote [at page 663]:
Safety of the applicant and of others is undoubtedly one consideration but it is not determinative under the statutory provisions.
The Trial Judge also correctly observed [at page 664]:
The fact that the applicant has met the safety standards required for a provincial licence does not mean that those same safety standards would be applicable in the case of a Canada-wide permit.
There may be many valid reasons for denying someone a permit to operate a business nationally that might commend themselves to the Commissioner. It may be that, because the primary administration and enforcement of the scheme has been placed in provincial hands, the practices of the provinces involved might be taken into account. The Commissioner might wish to obtain the views of the local administrators of the scheme. Since a separate permit for each location at which business is carried on is required by the legislation (subsection 105(5) [as am. idem, s. 39]) it is obviously important to the control scheme to have ready access to records of the business, and, hence, considerations having to do with the location or locations of the business may be of importance. There may be business matters to be taken into account, such as the credit-worthiness, honesty and reliability of an applicant. One could think of many other factors, which might influence the Commissioner to award a permit or to refuse to do so. There might be various conditions or limitations that the Commissioner would wish to impose in the public interest. But, in my view, he cannot merely decline to exercise the authority given to him by the statute without considering the merits of the application, as has been his approach in this case.
Consequently, this appeal should be allowed, and an order in the nature of mandamus should issue requiring the Commissioner to consider Mr. Martinoff’s application on its merits as if it had been submitted for the year 1994 on January 1, 1994.
Heald J.A: I concur.
Décary J.A: I agree.