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T-1116-78
Henri Lemyre (Plaintiff) v.
Sergeant Jacques Trudel and Commissioner of the Royal Canadian Mounted Police (Defendants)
Trial Division, Marceau J.—Montreal, April 17; Ottawa, May 16, 1978.
Prerogative writs — Mandamus — Firearms permit — Restricted weapon reclassified ''prohibited" on coming into force of Criminal Code amendment — Application for permit made prior to amendment's effective date, but not issued by that date — Whether or not mandamus can lie to force issuance of permit pursuant to law in force when application made — Criminal Code, R.S.C. 1970, c. C-34, s. 82(1) as amended by S.C. 1976-77, c. 53, s. 3 — Interpretation Act, R.S.C. 1970, c. I-23, s. 35.
An application for registration of a restricted weapon, sub mitted in November 1977, had not been approved by January 1, 1978, when new legislation reclassified the type of weapon as prohibited, unless the weapon was part of a bona fide gun collection and had been previously registered. This application is for a writ of mandamus to compel the Commissioner of the RCMP and the Local Registrar of Firearms to issue plaintiff- applicant, a firearms collector, a carriage permit and a trans port permit for his automatic weapon.
Held, the application is dismissed. Plaintiff-applicant cannot maintain that he had an acquired right to possess his weapon, since without the permit and certificate, such possession was quite simply prohibited. There was no positive right existing independently, with which well-defined prerogatives were associated. The application simply called on the Commissioner to exercise the power conferred on him by the Act to issue a certificate and ceased to have any object from the time that power ceased to exist. The application itself cannot preserve in the Commissioner a power which may only proceed from the Act.
City of Toronto v. Trustees of the Roman Catholic Sepa rate Schools of Toronto [1926] A.C. 81, applied. Canadi- an Petrofina Ltd. v. P. R. Martin & City of St. Lambert [1959] S.C.R. 453, applied.
APPLICATION. COUNSEL:
Henri Lemyre for himself.
S. Marcoux-Paquette for defendants.
SOLICITORS:
Henri Lemyre, Saint Chrysostome, for him self.
Deputy Attorney General of Canada for defendants.
The following is the English version of the reasons for judgment rendered by
MARCEAU J.: This is an application for a writ of mandamus enjoining the Commissioner of the Royal Canadian Mounted Police (hereinafter referred to as the Commissioner) and the Local Registrar of Firearms (hereinafter referred to as the Local Registrar) to issue plaintiff-applicant a carriage permit and a transport permit for a Walther MPL 9 mm automatic weapon.
A very rapid review of the principles underlying the legislation on possession of firearms as they relate to the question at bar will serve to place the facts in their legal context and more clearly identi fy the problem before the Court.
As is well known, the possession of offensive weapons is regulated by the Criminal Code (R.S.C. 1970, cc. C-34 and C-35, as amended), sections 82 to 106. These sections have all been extensively revised by a very recent Act, assented to on August 5, 1977 and effective on January 1, 1978 (S.C. 1976-77, c. 53). For our purposes it is not necessary to undertake an examination of all the provisions. What is important is that both pieces of legislation contain the same fundamental distinction and the same regulatory techniques. Certain weapons are classified as "prohibited" and others as "restricted". In principle, anyone who has a prohibited weapon in his possession commits a criminal offence, as does anyone who has a restricted weapon in his possession without being the holder of a permit or registration certificate. The application for a permit and registration of a restricted weapon is made to a Local Registrar, who is himself empowered to issue a permit for a limited and temporary purpose, but must refer the matter to the Commissioner, who is solely respon sible for issuing registration certificates. While both pieces of legislation are thus similar in their basic structure, they differ profoundly with regard to their implementing provisions and content. The new legislation seeks to introduce more strict regu-
lation and, inter alia, extends the list of prohibited weapons. Certain weapons that were formerly restricted are henceforth prohibited. This is the case with any weapon "that is capable of firing bullets in rapid succession during one pressure of the trigger", unless at the time the Act came into effect it "was registered as a restricted weapon and formed part of a gun collection in Canada of a bona fide gun collector" (section 82(1)). As will have been surmised, the weapon concerned in the proceedings at bar is one of those which thus became prohibited on January 1, 1978.
The facts are straightforward and the respective claims of the parties may be easily stated. The facts relied on by plaintiff-applicant which we need consider are the following. He is a collector of weapons. On November 14, 1977, having pur chased the aforementioned weapon from a dealer, he submitted to the Local Registrar an application for registration to authorize him to obtain the weapon and keep it in his possession. On Decem- ber 4, he received a letter from the Local Registrar notifying him that his application was being con sidered; however, it was not until March 3 follow ing that he learned, in a letter from the Commis sioner, that his application was forwarded to Ottawa only on December 30, and with the nota tion "Not recommended", that it was accordingly impossible to issue the permit before January, and that since January such permits and registration were no longer possible. Plaintiff-applicant sub mits that, on the basis of these facts, he is clearly entitled to the relief sought. He argues that on November 14, 1977 the weapon he applied to have registered was merely a restricted weapon; that the Local Registrar had no reason not to proceed on his application without delay, and especially no reason not to forward it to the Commissioner with a favourable recommendation, since there could be no objection to him personally; that he met all the requirements for obtaining a permit, and that the coming into effect of the new Act could not result in depriving him of his right.
Defendant-respondents do not dispute the facts alleged by plaintiff-applicant; they merely present their own version. Accordingly, the Local Regis trar undertook to explain, by affidavit, that on
receipt of the application he thought it best to request an opinion from legal counsel to the Quebec Police Force, because no certificate of registration had been issued to an individual for a weapon of this type since 1936; that he had sub mitted to the Commissioner on December 21 a report setting out the reasons why he felt the application should not be granted; that he had sent this report, prepared in compliance with the provi sions of section 98(3) of the Criminal Code then in effect, as soon as he had come to a decision as to the type of recommendation he should make, and without in any way seeking to unduly delay han dling of the file. Defendant-respondents argue, however, that the application for mandamus served on March 15, 1978 is inadmissible because, since January, they no longer have the power to grant the permit and issue the certificate sought by plaintiff-applicant.
It will be seen that this is a problem of conflict of the law at the time, which required reference to section 35 of the Interpretation Act (R.S.C. 1970, c. I-23), in particular paragraph (c), which it is well to recall:
35. Where an enactment is repealed in whole or in part, the repeal does not
(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed;
While the principle embodied in section 35 that acquired rights shall continue to exist, or that statutes shall not have a retroactive effect, is easy to understand, the difficulties of application which it presents are well recognized. The only ap proaches to a solution which the parties were able to suggest to the Court at the hearing (only defendant-respondents were represented by coun sel) were those drawn from case law on building permit applications under municipal zoning by-laws (City of Toronto v. Trustees of the Roman Catholic Separate Schools of Toronto ([1926] A.C. 81); Canadian Petrofina Limited v. P. R. Martin & City of St. Lambert ([1959] S.C.R. 453)). It is now well settled law that a property owner has no acquired right that his application for a building permit shall be con sidered only under the by-law existing at the time the application was submitted, and the issuing of the permit remains subject to new restrictions
imposed in good faith by subsequent alteration of the by-law; only actual issuance of the permit will vest in the property owner an absolute right to use his immovable as authorized, his right until that time being merely an uncertain quantity subject to the power of the municipality to determine how it shall be exercised. It is true that this line of au thority is not wholly applicable here as the power to determine the conditions on which the permit and the certificate will be issued have never been vested in the Commissioner or the Local Registrar. Nevertheless, my conclusion is the same for the following reasons.
Plaintiff-applicant clearly cannot maintain that he had an acquired right to possess his weapon, since without the permit and certificate such possession was quite simply prohibited. His argu ment is that he has an acquired right to the certificate. However, this was not a right in the full sense, a positive right existing independently, with which well-defined prerogatives are associat ed. The object of the application made to the Local Registrar was not the exercise of a right, one, which merely by application that it be recognized could be made an absolute part of plaintiff-appli cant's estate. This was simply an application call ing on the Commissioner to exercise the power conferred on him by the Act to issue a certificate. Such an application ceases to have any object from the time the power to issue the certificate no longer exists, because the application cannot in itself preserve in the Commissioner a power which may only proceed from the Act. I cannot see how, after January 1, plaintiff-applicant could have retained a right to force the Commissioner to exercise a power which he no longer has. It bears repeating: this action is not one seeking the recog nition of a right, it is an action to compel a public official to exercise a duty or a power which was conferred on him by the Act for a time but has since been absolutely withdrawn.
In my view, the application cannot be allowed and will be dismissed. However, in light of the circumstances, it will be dismissed without costs.
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