Judgments

Decision Information

Decision Content

T-2491-78
Michael John Martinoff (Applicant)
v.
S/Sgt. L. M. Gossen (Respondent)
Trial Division, Collier J.—Vancouver, June 12 and September 22, 1978.
Prerogative writs — Mandamus — Applicant seeking order requiring respondent to issue permit concerning firearms busi ness — Section requiring permit repealed and not immediately replaced — Respondent's authority to grant permit revoked and respondent re-appointed local registrar of firearms — Whether or not respondent should be compelled to consider application, made when former law in force, under the old law rather than under the new legislation — Criminal Code, R.S.C. 1970, c. C-34, ss. 96(2), 97(1),(3),(4), 99(5),(6) — Criminal Law Amendment Act, 1977, S.C. 1976-77, c. 53, s. 3, re ss. 82(1), 103(4), 106.2(5) — Interpretation Act, R.S.C. 1970, c. I-23, ss. 35, 36.
The applicant seeks, by way of mandamus, an order requir ing the respondent, the local registrar of firearms appointed by the Attorney-General of British Columbia, to issue him a permit to carry on a business that includes the selling, repair ing, or pawnbroking of restricted weapons, or at least an order to compel respondent to consider the application, and either grant or refuse it. Applicant applied for the permit on Decem- ber 5, 1977. On January 1, 1978, section 97 of the Criminal Code requiring dealers' permits was repealed and respondent was no longer authorized to issue those permits. On January 4, 1978, the Attorney-General of British Columbia revoked all previous appointments granted to the respondent, and appoint ed him local registrar of firearms. Applicant contends that the respondent should consider the application on the footing that the repealed legislation still applies to it, and should the application be refused, reasons should be given so that the applicant would have the right to appeal under section 99(6) of the old Act:
Held, the application is dismissed. There is nothing in section 35 or 36 of the Interpretation Act to support applicant's submission. The respondent's position is legally unassailable. During the period respondent had the application for a business permit under consideration, his powers to issue such permits were taken away. The legislation did not provide for someone else to continue consideration of the application. At that stage (January 1 and 4, 1978) applicant did not have any accrued right. There was no unreasonable delay on the part of the respondent in processing and considering this application.
APPLICATION. COUNSEL:
Applicant on his own behalf.
J. A. Rubenstein for respondent.
SOLICITORS:
Applicant on his own behalf.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren dered in English by
COLLIER J.: This is yet another skirmish in the continuing conflict between the applicant and the respondent. Once more, the controversy arises out of the so-called "gun control" legislation of the Criminal Code as it existed in 1977, and the changes made by the Criminal Law Amendment Act, 1977'.
The applicant seeks, by way of mandamus, an order requiring the respondent to issue him a permit to carry on a business that includes the selling, repairing, or pawnbroking of restricted weapons, or, at the least, an order compelling the respondent to consider the applicant's application for such a permit, and either grant it or refuse it.
I set out the relief claimed in the notice of motion:
... for an Order that a Writ of Mandamus do issue to the Respondent S/Sgt. L. M. Gossen to compel him to perform his duty to the Applicant pursuant to s. 99 of the 1977 Criminal Code.
At the hearing I allowed an addition to the notice of motion, as follows:
, or directing the Respondent to process the applicant's applica tion for a permit to carry on a business described in subsection 96(2) of the Criminal Code in accordance with the provisions of the Code as they were prior to January 1, 1978.
I turn to the facts.
On December 5, 1977 Martinoff applied to S/Sgt. Gossen for a permit to carry on a business described in subsection 96(2) of the then Code (that of a gun dealer).
Subsection 96(2) read as follows:
96. ...
(2) No person shall carry on a business that includes
(a) the selling of restricted weapons at retail,
(b) the repairing of restricted weapons, or
(c) the taking of restricted weapons in pawn,
S.C. 1976-77, c. 53, s. 3.
unless he is the holder of a permit for that purpose.
The respondent S/Sgt. Gossen was, in Decem- ber of 1977, a local registrar of firearms. He had been so appointed by the Attorney-General of British Columbia. He had also, at that time, been authorized by the same Attorney-General to issue permits of the kind described in subsections 97(1),(3) and (4) of the then Code. I reproduce those subsections:
97. (1) A permit authorizing a person to have in his posses sion a restricted weapon elsewhere than in his dwelling-house or place of business may be issued by
(a) the Commissioner or a person expressly authorized in writing by him to issue a permit for that purpose, or
(b) the Attorney General of a province or a person expressly authorized in writing by him to issue a permit for that purpose,
and shall remain in force until the expiration of the period for which it is expressed to be issued, unless it is sooner revoked.
(3) A permit to transport a restricted weapon from one place to another place specified therein may be issued by any person mentioned in subsection (1) to any person who is required to transport that weapon by reason of a change of residence or for any other bona fide reason, and shall remain in force until the expiration of the period for which it is expressed to be issued, unless it is sooner revoked.
(4) A permit to carry on a business described in subsection 96(2) may be issued by any person mentioned in subsection (1) and shall remain in force until it is revoked.
The respondent, when presented with the application, raised some question as to whether the applicant intended to carry on a real business.
By a letter, dated December 27, 1977, Martinoff replied as follows:
Sir:
I write this letter at the request of S/Sgt. L. M. Gossen,
issuer of restricted weapons business permits.
On Monday, 5 December, 1977, in order to comply with the requirements of the Criminal Code of Canada, I applied to S/Sgt. Gossen for a restricted weapons business permit (not a municipal business licence).
He told me that he would enquire of Mr. Lorne Newson, Chief Provincial Firearms Officer, about it, and later he advised me to speak with Mr. Ken Armstrong (I think it was) at City Hall.
I spoke with Mr. Newson, who told me that he would not interfere with S/Sgt. Gossen's responsibility as issuer of per mits, and I spoke with Mr. Armstrong (I believe), who told me
that I would need a municipal business licence only if I intended to operate for profit.
If I wish to buy, say, 100 lbs. of gunpowder at an attractive price, to keep part for myself and sell the rest to my friends at cost, I am required by law to obtain a federal explosives licence but not a municipal business licence.
If I wish to buy, say, five handguns at an attractive price, to keep one for myself and sell the rest to my friends at cost, I am similarly required by law to obtain a federal restricted weapons business permit but not a municipal business licence.
According to s. 99(3) of the Criminal Code, the only reason for which issue of a restricted weapons business permit may be refused is the safety of other persons. Judge John Davies has already decided that I am fit to own machineguns, and my security measures exceed the proposed federal standards.
As an economist, I am generally disappointed with the inefficiency, high mark-ups, and high prices of local firearms dealers.
Please expedite issue of my restricted weapons business permit.
The respondent received the letter on January 4, 1978.
By the Criminal Law Amendment Act, 1977, sections 82 to 106 of the Code were, effective January 1, 1978, repealed. New sections were enacted. Not all of them came into force on Janu- ary 1, 1978. Some do not come into force until January 1, 1979.
As can be seen, old section 97 was repealed. The respondent, as of January 1, 1978, no longer was authorized to issue a dealer's permit. Repealed, as well, was subsection 96(2), set out earlier in these reasons. That subsection required a dealer to hold a section 97 permit.
The new legislation contains certain provisions dealing with the responsibilities and duties of per sons who deal in firearms and restricted weapons.
Certain records and inventories must be kept; the loss, destruction or theft of any restricted weapon or firearm must be reported (subsections 103(1),(2), and (3)).
Subsection 103(4) of the new legislation is as follows:
103. ...
(4) No person shall carry on a business described in subsec tion (1) or subparagraph (2)(b)(i) unless he is the holder of a permit to carry on such business.
Subsection 106.2(5) is as follows:
106.2.. .
(5) A permit to carry on a business described in subsection 103(1) or subparagraph 103(2)(b)(î) may be issued by the Commissioner, the Attorney General or chief provincial fire arms officer of the province where the business is or is to be carried on or by any person whom the Attorney General or the Commissioner designates in writing for that purpose and shall remain in force until the expiration of the period, not exceeding one year, for which it is expressed to be issued, unless it is sooner revoked.
Those two subsections do not come into effect until January 1, 1979.
There was, therefore, in 1978, as I see it, no requirement that a dealer hold a business permit. There was also, in 1978, no one authorized to issue such permits. I assume that dealers who already hold permits, issued under the former legislation, have had no legal difficulties. But I suspect a new venturer into the field in 1978, without a permit, would likely be confronted with other provisions of the legislation which would effectively prevent him carrying on business, except at the risk of criminal prosecution.
There is one final fact.
On January 4, 1978 the Attorney-General of British Columbia revoked all previous appoint ments granted to the respondent. In the same document the respondent was appointed, pursuant to subsection 82(1) (as enacted by the 1977 stat ute), a local registrar of firearms and a firearms officer.
The respondent's position, in respect of this mandamus proceeding, is set out in paragraphs 6-8 of his affidavit:
6. That on January 4, A.D. 1978, my authority to issue permits pursuant to the aforesaid Criminal Code of Canada provisions was revoked. Attached hereto and marked Exhibit "B" to this my Affidavit is a true copy of a letter from the Deputy Attorney-General of British Columbia whereby our offices were advised of the said revocation. I received notice of the said revocation on or about January 10, A.D. 1978.
7. That at no material time had I decided whether or not to issue a permit to Michael Martinoff because I was not satisfied as to whether or not the permit was required for one of the purposes set out in the former Section 96(2) of the Criminal Code of Canada.
8. That because of the repeal of former Sections 82 to 106 of the Criminal Code of Canada and because of the revocation of my authority as set out in this my Affidavit, I have no au thority to issue any permit of the type for which Mr. Martinoff applied, nor have I had any such authority since January of 1978.
For the applicant, it is said his application for a business permit was made to an authorized issuer on December 5, 1977; the old legislation was then in force; the respondent should consider the application on the footing the repealed legislation still applies to it; the respondent should either issue or refuse; if the permit is refused, the respondent should then, pursuant to former subsection 99(5), notify the applicant in writing of the refusal and of the reasons for it; the applicant then has a right of appeal, pursuant to former subsection 99(6), to a magistrate 2 .
I cannot accept the applicant's contention.
I can find nothing in section 35 or 36 of the Interpretation Act', in the unusual circumstances here, to support the applicant's submission. The respondent's position is, in my opinion, legally unassailable. During the period S/Sgt. Gossen had the application for a business permit under con sideration, his powers to issue such permits were taken away. Unfortunately, the legislation did not provide for someone else to continue consideration of the application. At that stage, (January 1 and January 4, 1978) the applicant did not have any accrued right.
I find there was no unreasonable delay on the part of the respondent in processing and consider ing this application.
The motion is dismissed. In the circumstances, there will be no costs.
ORDER
1. The notice of motion, on behalf of the appli cant, dated June 6, 1977, is amended by adding
2 The "new" legislation has similar appeal provisions where certain permits, including business permits, are refused.
3 R.S.C. 1970, c. I-23.
the following after the words "Criminal Code" at the end of the first paragraph:
, or directing the Respondent to process the applicant's application for a permit to carry on a business described in subsection 96(2) of the Criminal Code in accordance with the provisions of the Code as they were prior to January 1, 1978.
2. The said motion is dismissed, without costs.
 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.