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T-4723-77
Michael John Martinoff and John Michael Page (Applicants)
v.
S/Sgt. L. M. Gossen, Local Registrar of Firearms for Vancouver, R. H. Simmonds, Commissioner of the Royal Canadian Mounted Police, and Garde B. Gardom, Attorney-General for the Province of British Columbia (Respondents)
Trial Division, Collier J.—Vancouver, December 13, 1977 and January 9, 1978.
Prerogative writs — Mandamus — Application for registra tion of firearms — One application to RCMP Commissioner inordinately delayed — Applications made to local registrar of firearms not approved — Local registrar permitted au thority only with respect to certain weapons due to restrictions imposed on appointm nt by provincial attorney general — Whether or not man'arnus will lie to (1) direct the local registrar to deal with the ,,plication (2) to require the Attor- ney-General of Britisl Columbia and the RCMP Commission er to appoint local registrars without restrictions (3) to order the RCMP Commissioru r to consider an application to him for registration before new legislation came into effect — Crimi nal Code, R.S.C. 1970, c. C-34, ss. 82(1), 91, 93, 97, 98, 99 Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Applicant applied to register three firearms. One application made to the RCMP Commissioner, by way of the local detach ment, however, had not been considered until some months after it was first made, and no decision had been reached. Applications, made to a local registrar of firearms with respect to two other weapons, were not approved ostensibly because the appointment of local registrars had been restricted by the provincial Attorney-General to the registration of two of four types of restricted weapons permitted by the Code. Later, although the application was not considered, the local registrar sent a report to the RCMP Commissioner pursuant to section 98. Applicant seeks (1) a writ of mandamus directing respond ent Gossen, a local registrar, to process applicant's application; (2) a writ of mandamus requiring the RCMP Commissioner and the Attorney-General of British Columbia to appoint local registrars and issuers of permits without restrictions; and (3) an order in the nature of mandamus ordering the RCMP Commis sioner to consider the application to register the first weapon.
Held, the relief sought is allowed in part. The delay in the first application reaching the Commissioner is unsatisfactorily explained. It is desirable and equitable that the Commissioner come to a decision before the new legislation comes into force.
The Court does not have jurisdiction to grant mandamus with respect to a provincial attorney general, and although this remedy would lie against the Commissioner, since the appoint ment of local registrars has been traditionally a field of attor neys general, it would not be proper to ask the Commissioner to exercise those powers. In appointing local registrars of firearms, attorneys general, despite the provincial legislative power to administer justice, cannot pick and choose what restricted weapons they will let the appointees deal with. They cannot subvert or render ineffective the law of Canada in such a way. No such arbitrary power has been given them by Parliament. Lastly, a local registrar, as in the instant case, cannot refuse to process a particular application and at the same time report on it; one function is co-extensive with the other.
Walker v. Gagnon [1976] 2 F.C. 155, distinguished.
APPLICATIONS.
COUNSEL:
The applicants in person.
W. D. Stewart for the respondents S/Sgt. L. M. Gossen and Garde B. Gardom, Attorney- General of British Columbia.
B. Purdy for R. H. Simmonds, Commissioner of the Royal Canadian Mounted Police.
SOLICITORS:
Attorney-General of British Columbia, Vic- toria, for respondents S/Sgt. L. M. Gossen and Garde B. Gardom, Attorney-General of British Columbia.
Deputy Attorney General of Canada for defendant R. H. Simmonds, Commissioner of the Royal Canadian Mounted Police.
The following are the reasons for judgment rendered in English by
COLLIER J.: The applicants, on December 5, 1977, launched a motion, returnable December 13, 1977, for certain relief of the type contemplated by section 18 of the Federal Court Act.' At the end of argument, I entered formal pronouncements in respect of certain portions of the motion. Other parts of it were adjourned for hearing to a later date.
R.S.C. 1970 (2nd Supp.), c. 10.
I indicated I might or might not give written reasons for my decisions to date. For a number of considerations, not necessary to detail, I feel it desirable to now set out my conclusions.
The applicant Martinoff is in person. He han dles his cause well. He attempted to act as counsel for his co-applicant, Page. I refused to permit that. The hearing of Page's portion of the motion was postponed.
In this Court (and Martinoff has sought allied relief in others) his claim for assistance stems from his latest encounter, as a taxpayer and citizen, with bureaucracy and officialdom in respect of the interpretation and administration of the so-called "gun control laws" found in the Criminal Code. 2
The whole history, including the forays in other courts, is not pretty.' I shall not recount it.
That history indicates a number of applications by Martinoff for permits and registration certifi cates in respect of restricted weapons. The plaintiff is obviously persistent and stubborn. He has undoubtedly become a prickly thorn to those charged with administering the gun control laws. Equally, and undoubtedly, he has become an annoyance to those in government and bureaucra cy who disagree with his position and views, par ticularly in respect of possession, as a collector, of firearms, including machine guns.
I cannot be concerned with the morality of ownership or possession, as permitted by the Criminal Code, of machine guns. My duty is to
2 R.S.C. 1970, c. C-34, as enacted by S.C. 1968-69, c. 38, s. 6, and amended by S.C. 1972, c. 17, s. 2. The Criminal Law Amendment Act, 1977, S.C. 1976-77, c. 53 repeals sections 82-106 of what I shall term the pre-January 1, 1978 gun control legislation. New, and as I understand it, more stringent control legislation was, at the same time, enacted. The new legislation is to come into force on a day or days to be fixed by proclamation. Some of the new provisions have been pro claimed effective January 1, 1978.
3 See: (a) The correspondence exhibited to Martinoff's affidavit. (b) The decision and reasons of His Honour Judge J. L. Davies, given June 29, 1977. The earlier history of applica tions and court proceedings is set out. (c) The reasons for judgment of Wetmore C.C.J., dated October 5, 1977.
sublimate any personal views I may have, to inter pret (if necessary) the law, and then apply it. If the law, as the Court sees it, is in favour of the applicant, then he is entitled to its application, and any consequent protection, privileges, or benefits.
For these reasons for judgment, and for any future supplementary reasons dealing with the postponed portions of this motion, it is convenient to set out the whole of the relief sought:
... an Order that such Writs of Certiorari, Mandamus, Prohi bition, and/or Injunction as this Honourable Court may see fit do issue to such persons as this Honourable Court may see fit in order to ensure:
1. that a permit be issued to the Applicant Michael John Martinoff to enable him to transport his Uzi firearm #104 and his G3A4 firearm #G3 12 C 692 from the Vancouver City Police Station, 312 Main Street, to his residence, at 5038 Granville Street, Vancouver;
2. that the Local Registrar of Firearms for Vancouver, S/Sgt. L. M. Gossen, does process the application of the Applicant Michael John Martinoff to register his restricted weapons MAC-10 #2-3007383 and PMC M-2 #791A and does issue to the said Applicant a permit to enable him to transport those said firearms from the dealer, Douglas Hough, Gunsmith, 3626 West 4th Avenue, Vancouver, to (S/Sgt. Gossen's office for examination should he so desire and thence to) the Applicant's residence, 5038 Granville Street, Vancouver;
and that the said Local Registrar of Firearms does process the application of the Applicant John Michael Page to register his restricted weapon Winchester M-2 #1133659 and does issue to the said Applicant a permit to enable him to transport the said firearm from the aforementioned residence of Michael John Martinoff to (S/Sgt. Gossen's office for examination should he so desire and thence to) the Applicant's residence, #409-1445 Marpole Avenue, Vancouver;
in the alternative, that there be appointed (by the Attorney- General of B.C. or by the Commissioner of the R.C.M.P.) a Local Registrar of Firearms and Issuer of Permits willing and able to serve the Applicants in accordance with the provisions of the Criminal Code;
3. that the Respondent R. H. Simmonds, Commissioner of the R.C.M.P., does adjudicate the Application of the Applicant Michael John Martinoff to Register his Schmeisser firearm #9981-D;
4. that the Respondent R. H. Simmonds, Commissioner of the R.C.M.P., does issue to the Applicant Michael John Martinoff a permit authorizing him to have in his possession a restricted weapon elsewhere than in his dwelling-house or place of busi ness to protect life or property and for use in target practice.
At the hearing on December 13, 1977, the pro ceedings were confined to
(a) the request, in the first subparagraph of paragraph 2 above, for an order in the nature of mandamus requiring the respondent Gossen to process Martinoff's application to register his restricted weapons MAC-10 and PMC M-2. Those weapons are of the automatic or machine gun type.
(b) the alternative request, in the third subpara- graph of paragraph 2 above, that the Attorney- General of B.C. or the Commissioner of the RCMP be directed, by an order in the nature of mandamus, to appoint a Local Registrar of Firearms and Issuer of Permits, without any restriction on the authority or powers given, by the Criminal Code, to those officials.
(c) the request, in paragraph 3 above, for an order in the nature of mandamus, directing the respondent Simmonds to adjudicate on Martin- off's application to register his Schmeisser fire arm. This again was an automatic weapon.
Before outlining the facts and issues, I shall set out some technical points and decisions which arose at the outset of the hearing, and during it.
Relief is sought against the Attorney-General of B.C. On his behalf it was objected this Court had, in the circumstances, no jurisdiction. I gave effect to the objection and directed dismissal of the proceedings against the Attorney-General. As I see it there is no existing and applicable federal law (statutory or common) which can be invoked to support the proceedings asserted, in this Court, against the Attorney-General 4 .
On behalf of S/Sgt. Gossen it was argued that any relief sought by way of certiorari could not, on the facts here, be granted by the Trial Division; recourse must be had to the Appeal Division and
4 I my view, the principles set out in: Union Oil of Canada Ltd. v. The Queen [1976] 1 F.C. 74 (F.C.A.), appeal to the Supreme Court of Canada dismissed, [1976] 2 S.C.R. V; Canadian Javelin Ltd. v. The Queen (Nfld.) [1978] 1 F.C. 408; Quebec North Shore Paper Co. v. Canadian Pacific Ltd. [1977] 2 S.C.R. 1054 and McNamara Construction (Western) Ltd. v. The Queen [1977] 2 S.C.R. 654 at pages 658-659, apply.
the section 28 procedure. In my opinion, when the motion as a whole is fairly and reasonably read, and bearing in mind the documents were not drawn by someone legally trained, the essence of the relief asked for is in the nature of mandamus, or mandatory injunction. I so ruled at the hearing, and dismissed that jurisdictional objection.
There are two other matters which require com ment. On behalf of the respondents Gossen and the Attorney-General of B.C., an affidavit, deposed to by Mr. W. D. Stewart, was filed. Mr. Stewart appeared, at the hearing, as counsel for those two respondents. The affidavit contained some poten tially controversial material. I ruled, in accordance with long standing practice, the affidavit could not be relied on, unless other counsel appeared to argue the case. Other counsel were not instructed. I have therefore, in reaching my decision, put aside that particular material.
The respondent Simmonds filed his own affida vit. It is seriously defective in form.' It is a fairly lengthy affidavit based, not on personal knowl edge, but on information and belief. Throughout, the following phrase appears:
I am informed and believe ....
Nowhere, as required by the rules, are the sources and grounds of his information and belief set out. 6 I might add it is not sufficient in my view, to state merely (for example): I am informed by John Jones and verily believe. There must be sufficient identification of John Jones and disclosure of other facts from which the Court can conclude John Jones probably has first-hand knowledge of the facts asserted by the deponent, and that in those circumstances, the deponent's grounds for belief in their truth are reasonable.
In the final analysis of the issues I have heard to date, I did not have to rely on the Commissioner's affidavit.
5 I make no criticism of the Commissioner personally. Unaoubtedly the affidavit was prepared by others on his behalf. 6 See Rule 332(1).
I turn now to the basic facts and the dispute among the parties. It is first necessary to summa rize the applicable provisions of the Code.
Sections 83 to 96 set out a variety of offences in respect of the use of, possession of, dealing in, etc. of weapons, prohibited weapons, and restricted weapons. The prohibitions and offences most rele vant to this proceeding are found in sections 91 and 93. By section 91, everyone who has in his possession a restricted weapon "for which he does not have a registration certificate issued to him" is guilty of an offence.
Restricted weapons are defined in subsection 82(1) as follows:
82....
"restricted weapon" means
(a) any firearm designed, altered or intended to be aimed and fired by the action of one hand,
(b) any firearm that is capable of firing bullets in rapid succession during one pressure of the trigger,
(c) any firearm that is less than twenty-six inches in length or that is designed or adapted to be fired when reduced to a length of less than twenty-six inches by folding, telescoping or otherwise, or
(d) a weapon of any kind, not being a shotgun or rifle of a kind commonly used in Canada for hunting or sporting purposes, that is declared by order of the Governor in Council to be a restricted weapon.
The three weapons earlier here referred to (the MAC-10, the PMC M-2 and the Schmeisser) all fall within paragraph (b).
Section 97 provides for the issuance of permits authorizing a person to have in his possession a restricted weapon elsewhere than in his dwelling- house or place of business. Permits, pursuant to subsection 97(1), are issued only to applicants who satisfy the issuer that the restricted weapon is required for a certain limited use or uses (see subsection 97(2)). Those permits may be issued by the Commissioner of the RCMP or a person authorized in writing by him to issue a permit, or the Attorney-General of a province or a person authorized by him to issue a permit.
Parliament has obviously said that a person, holding a permit issued pursuant to section 97, does not commit an offence against section 93.
Section 98 of the legislation deals with firearm registration and firearm registration certificates. A registry of such certificates is kept by the Commis sioner of the RCMP. Applications for certificates are made to "a local registrar of firearms." Local registrar of firearms means (subsection 82(1)):
... a person appointed in writing by the Commissioner or by the Attorney General as a local registrar of firearms.
What is meant by "local" is unexplained. It is apparent a person appointed a local registrar need not be the same person authorized to issue permits pursuant to section 97. On the other hand there is nothing preventing such dual appointments.
Upon receipt of a registration application, the duties of the local registrar and the Commissioner are specified as follows:
98. (1) The Commissioner shall cause a registry to be main tained in which shall be kept a record of every firearm registra tion certificate issued under this section.
(2) An application for a registration certificate shall be in a form prescribed by the Commissioner and shall be made to a local registrar of firearms who shall, upon receiving the application,
(a) issue a permit under section 97 authorizing the applicant to transport the weapon to him for examination; and
(b) if he is satisfied that the weapon bears a serial number sufficient to distinguish it from other restricted weapons or, in the case of a weapon that in his opinion is useful or valuable primarily as an antique, that the description of the weapon in the application is accurate, endorse the application and
(i) send one copy thereof to the Commissioner,
(ii) deliver one copy thereof to applicant, and
(iii) retain one copy thereof.
(3) Where a local registrar of firearms has notice of any matter that may render it desirable in the interests of the safety of other persons that the applicant should not possess a restrict ed weapon, he shall report that matter to the Commissioner.
(4) Upon receiving an endorsed application for a registration certificate the Commissioner shall, subject to section 99, regis ter the restricted weapon described in the application and issue a firearms registration certificate therefor to the applicant, in such form as the Commissioner may prescribe and subject to such conditions as he deems necessary to enable the informa-
tion contained in the registry mentioned in subsection (1) to be maintained on a current basis.
Subsection 99(4) provides that the Commission er may refuse to issue a registration certificate:
... where he has notice of any matter that may render it desirable in the interests of the safety of other persons that the applicant should not possess a restricted weapon'.
Parliament has obviously said that a person, holding a registration certificate issued pursuant to section 98, does not commit an offence against section 91.
In my view, the legislators intended:
(a) that certificates, pursuant to section 98, could be obtained,
(b) that local registrars of firearms, to look into and process, applications for registration certifi cates, would be appointed, and
(c) that such registrars would not be restricted in, or forbidden to carry out, their duties as set out in paragraph 98(2)(b), in respect of some or all of the weapons described in the definition of restricted weapons in subsection 82(1). To put it another way, the legislators did not intend to give to the Commissioner, the Attorneys Gener al, or their appointees the power to refuse to process applications for registration of, say, automatic weapons.
That is really the essence of the controversy here.
The Commissioner has never appointed local registrars of firearms. The Attorney-General of B.C. has, from time to time since 1969, appointed local registrars of firearms (subsection 82(1)) and permit issuers (section 97). What restrictions he imposed on their powers and duties prior to August 18, 1977 is, on the admissible material before me, unclear. I suspect that the respondent
7 Those words are identical in substance to subsection 98(3).
Gossen 8 was, however, not empowered to deal with applications in respect of automatic weapons.
For chronological purposes, I divert here to Martinoff's attempts to register the three weapons earlier referred to. On May 20, 1977 he applied on form C.300 to register the Schmeisser. The application was taken by Corporal L. C. Malkoski of the RCMP detachment at Richmond, B.C. There was considerable unexplained delay in deal ing with this application and forwarding a copy to the Commissioner (see subparagraph 98(2)(b)(i)). The latter began considering this particular application in September or October, 1977.
On June 29, 1977, Martinoff wrote, in respect of the MAC-10 and the PMC M-2, as follows: (in part)
The Local Registrar of Firearms
Vancouver City Police
312 Main Street
Vancouver, B.C.
V6A 2T2
Sir:
TAKE NOTICE THAT I do hereby make application to register the following restricted weapons:
P.S.: I am aware of your policy regarding registration of firearms of this type. Please retain this Notice, as it may be relevant to possible litigation.
On August 18, 1977 the Attorney-General wrote the Vancouver City Police Force and the RCMP. He revoked all previous appointments, as local registrars of firearms and issuers of permits, of members of those two forces. He appointed all members of both forces 9 as local registrars of firearms. All members were, as well, authorized to issue permits "under Sections 97(3) and 97(4) of the Criminal Code". 10 Only certain specifically designated officers of the RCMP were authorized to issue the more `general permits contemplated by subsections 97(1) and (2).
8 S/Sgt. Gossen is and was a member of the Vancouver City Police Force.
9 I the case of the RCMP the appointments apply only to those members of the force stationed in British Columbia.
10 The permits referred to in those two subsections are quite limited in the privileges granted.
All of these appointments and authorizations contained a significant exception or restriction:
These appointments are not valid in respect to any firearm that is capable of firing bullets in rapid succession during one pressure of the trigger nor any firearm that is designed or adapted to be fired when reduced to a length of less than twenty-six inches by folding, telescoping or otherwise.
The effect of this restriction, if valid, means that in British Columbia one cannot obtain a section 97 permit or a firearms registration certificate in respect of two of the four types of restricted weapons dealt with in the Code. Citizens of other provinces, where no such "exceptions" have been specified by other Attorneys General, can (if they meet the requirements of the legislation) obtain such permits and certificates. They then commit no criminal offences, as described in section 91 or 93, by possessing (in their dwelling-house or else where) restricted weapons such as automatic firearms.
The respondent Gossen, to whom the applica tions in respect of the MAC-10 and PMC M-2 were referred, refused to consider them. His grounds were he was not authorized to issue per mits or endorse certificate applications in respect of that type of restricted weapon. The Commis sioner refused to take any action until he had received an "endorsed" copy of the application in accordance with subsection 98(4).
The result, of course, from Martinoff's point of view, was no action by anyone. That state of affairs precipitated this motion, and some of the other litigation I have referred to.
As I see it, if an Attorney General chooses to appoint local registrars of firearms, or chooses to authorize certain persons to issue permits, he cannot pick and choose what restricted weapon he will let those appointees deal with. No such arbi trary power or discretion has been given, by Par liament, to the Attorneys General. They cannot, by forbidding appointees to handle applications in respect of certain types of weapons, subvert or render ineffective the law of Canada. It matters not their motives are probably praiseworthy and, in the eyes of many, in the best interests of the residents of a particular province. Attorneys Gen-
eral are subject, nevertheless, to the competent and valid legislation of the federal authority.
It was said that because the provinces have legislative authority in respect of the administra tion of justice, an Attorney General, the provincial cabinet official charged with that responsibility, can, in administering justice, make the restricted appointments and authorizations as was done here. To my mind, that argument overlooks the realities of a federal state, with divided legislative jurisdic tion, and the expression, through Parliament, of the will of the Canadian people as a whole. What has been attempted here, from a practical point of view, is to render nugatory validly enacted federal legislation. As I see it, Attorneys General, if they elect to appoint firearm registrars or permit issu- ers, cannot, in the guise of giving effect to the views of a particular group of persons, take away privileges, rights, and defences to criminal charges, which other persons in other areas may enjoy, and which all persons in Canada may be entitled to invoke. In my opinion the attempt to restrict a local registrar's powers and functions is not permissible.
At the conclusion of argument, I ordered a writ of mandamus to issue to the respondent Gossen, directing him to process Martinoff's applications to register the MAC-10 and the PMC M-2, with out regard to the purported restriction on his appointment against dealing with applications in respect of so-called automatic weapons.
I must comment on one other matter in respect of the respondent Gossen. These proceedings were commenced on December 6, 1977. S/Sgt. Gossen swore an affidavit on December 13, 1977. To it he exhibited a letter written, on December 12, by him to the Commissioner. I was told this letter was, after legal advice, prepared and sent. It purports to be a report pursuant to subsection 98(3). The report expresses concern over theft of automatic and semi-automatic weapons, and the possibility of their being used by potential criminals. Three instances since 1972 are referred to. Nowhere in the report is it specifically stated it is not desirable
that Martinoff ("the applicant") should possess a restricted weapon.
I find it perplexing why the respondent Gossen should have been prevailed upon to file, on Decem- ber 12, 1977, a subsection 98(3) report regarding automatic weapons in general, when it has been Gossen's steadfast position he is not empowered to "endorse" applications of this kind (paragraph 98(2)(b)). A local registrar in B.C. cannot have it both ways. He must process the particular applica tion and, if has notice "... of any matter [etc.] ..." he must, at the same time, report it. He cannot refuse to process the particular application, and yet at the same time report on it. His report ing function can only be co-extensive with his endorsing function. That seems to me the only logical conclusion when subsections 98(3), 98(4), 99(4) and 99(5) are read together. Counsel for the respondent Gossen contended that authority for the step taken by the respondent Gossen can be found in Walker v. Gagnon". I disagree. That case merely decided an applicant for a firearm registra tion certificate cannot be required to submit to fingerprinting.
Finally, on this point, I suggest it was indiscreet to have S/Sgt. Gossen write such a letter to the Commissioner, when the whole issue as to the extent of his (Gossen's) functions and powers was before the Court.
I turn now to that part of the motion dealing with the Schmeisser. Counsel for the Commission er very candidly agreed it was open to the Court, if it saw fit, to make an order in the nature of mandamus against the Commissioner. 12 But it was said the Commissioner had not yet had sufficient time to consider Martinoff's application. I could not concur. The application was made on May 20, 1977. The delay in its reaching the Commissioner
11 [1976] 2 F.C. 155 at 159 and 160, per Walsh J.
12 It was common ground before me that S/Sgt. Gossen and the Commissioner fell within the expression "federal board, commission or other tribunal" found in section 18 of the Federal Court Act.
was not satisfactorily explained. It was, to my mind, desirable and equitable the Commissioner came to a decision before some of the new legisla tion became applicable. I therefore directed man- damus issue requiring the Commissioner to adjudicate and decide, on or before December 22, 1977, this particular application.
There remains the alternative relief sought: that the Attorney-General of B.C. or the Commissioner appoint a local registrar and "issuer of permits," without any restriction as to the kind of applica tions they can entertain. My ruling in respect of lack of jurisdiction over the Attorney-General of B.C. left only the claim in respect of the Commissioner.
I dismissed the motion as against the Commis sioner. I am not convinced the mandatory relief requested would, in the circumstances, lie against him. In any event, mandamus is a discretionary remedy. Here, the Attorney-General of B.C. has, for several years, appointed local registrars and authorized certain persons to issue permits, albeit with restrictions on both. It would not be proper, to my mind, to ask the Commissioner to exercise powers in what has traditionally been a field of the Attorneys General.
As I said early in these reasons, the remaining matters set out in the notice of motion have been adjourned sine die.
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