A-311-78
Henri Lemyre (Appellant)
v.
Sgt. Jacques Trudel and Commissioner of the
Royal Canadian Mounted Police (Respondents)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Montreal, April 3, 1979.
Prerogative writs — Appeal from dismissal of application
for mandamus — Appellant sought mandamus to compel
respondents to issue him with registration certificate for an
automatic weapon — Weapon, at time of submission of
application for registration in November 1977, was a restricted
weapon requiring only registration with R.C.M.P. Commis
sioner — After January 1, 1978, that weapon was prohibited,
unless registered before that date — Registration not com
pleted before January 1, 1978 and Commissioner then without
jurisdiction to approve application — Whether or not s. 35(c)
of the Interpretation Act preserved intact the right appellant
claimed prior to January 1, 1978 — Interpretation Act, R.S.C.
1970, c. I-23, s. 35(c).
APPEAL.
COUNSEL:
H. Lemyre for himself.
S. Marcoux-Paquette for respondents.
SOLICITORS:
H. Lemyre, St. Chrysostome, for himself.
Deputy Attorney General of Canada for
respondents.
The following is the English version of the
reasons for judgment of the Court delivered orally
by
PRATTE J.: We already stated this morning,
after hearing appellant, that we were all of the
opinion that this appeal should be dismissed. How
ever, as we have arrived at this conclusion for
reasons which differ somewhat from those of the
Trial Judge, it is appropriate for us to briefly
explain our decision.
Appellant is asking that a writ of mandamus be
issued ordering respondents to issue him with a
registration certificate for an automatic weapon.
Applicant first submitted this application for
registration in November 1977, pursuant to sec
tions 82 et seq. of the Criminal Code, which then
provided that a firearm like that belonging to
applicant was a "restricted weapon", the posses
sion of which was prohibited unless the weapon
was registered with the Commissioner of the
R.C.M.P. For reasons which need not be men
tioned here, on January 1, 1978 the Commissioner
had still not approved applicant's application for
registration. On that date, January 1, 1978, the
Criminal Law Amendment Act, 1977, S.C. 1976-
77, c. 53, came into effect, repealing sections 82 to
106 of the Criminal Code and replacing them with
new provisions. According to these, the possession
of a weapon like that which applicant wished to
register is now prohibited unless it is a weapon
"that, on the day on which this paragraph comes
into force, was registered as a restricted weapon";
in that case, the weapon continues to be treated as
a restricted weapon which can be registered. On
February 22, 1978 the Commissioner of the
R.C.M.P. wrote appellant telling him that his
application for registration had been denied
because the new legislation did not authorize the
Commissioner to approve it, since applicant's
weapon had not been registered on January 1,
1978. As a consequence of this rejection, appellant
submitted the application for mandamus which
was dismissed by the Trial Judge.
Appellant cited section 35(c) of the Interpreta
tion Act, R.S.C. 1970, c. I-23, which in his submis
sion preserved intact the right he claimed to have
had prior to January 1, 1978 to obtain registration
of his weapon.
According to that section,
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;
In our view, section 35 has no application to the
case at bar. It regulates the effect of the repeal of
an enactment and states that such a repeal shall
not adversely affect certain rights or privileges.
While it is quite true that sections 82 to 106 of the
Criminal Code were repealed on January 1, 1978,
that repeal was not in itself capable of causing a
detriment to appellant. What did cause him a
detriment was not the repeal of the sections of the
Criminal Code but the adoption of the new provi
sions which replaced them.
If the new legislation had provided that all
automatic weapons, without exception, were pro
hibited weapons, it would have been clear that
appellant's application for registration had been
properly dismissed, since in that case no one would
have had a right after January 1, 1978 to possess
such weapons. In fact, the new legislation did not
enact such an absolute prohibition. The rule it
enacted, that weapons of the type owned by appel
lant are prohibited, is accompanied by an excep
tion: the rule does not apply to weapons which
were registered as restricted weapons on January
1, 1978. In our opinion, for appellant to succeed he
had to show that his weapon fell within this excep
tion, namely that it was registered (not that it
might or should have been) on January 1, 1978. As
admittedly that was not the case, we think it is
clear that after January 1, 1978 applicant's
weapon became a prohibited weapon which the
Commissioner had no power to register.
This appeal will accordingly be dismissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.