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ness — Section requiring permit repealed and not immediately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Code requiring dealers' permits was repealed and respondent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the repealed legislation still applies to it, and should the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.