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, June 1 and
September 20, 1978.
Prerogative writs — Mandamus — Application in response
to RCMP Commissioner's declining to issue permit to carry
restricted weapon in apparent compliance with policy state
ment — Only remedy available when application filed —
Appeal from Commissioner's decision later provided by new
legislation — Whether or not application for mandamus a
nullity because appeal procedure now provided for — Whether
or not Commissioner exercised independent judgment —
Whether or not application for order for adjudication of
application for registration of weapon, now prohibited, but
only restricted when application for registration made, should
be dismissed — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 18 — Criminal Code, R.S.C. 1970, c. C-34, s. 97 —
Criminal Law Amendment Act, 1977, S.C. 1976-77, c. 53, s.
106.4(8).
On December 6, 1977 applicants filed a motion for certain
relief contemplated by section 18 of the Federal Court Act in
response to the RCMP Commissioner's decision to decline, in
apparent compliance with a policy statement, to issue to appli
cant Martinoff a permit to carry restricted firearms. This
decision was made pursuant to section 97 of the Criminal Code,
which was repealed and replaced on January 1, 1978. Man-
damus was the only remedy available to the applicant at that
time as the old legislation, unlike the new, made no provision
for appeal. Respondents argue, firstly, that the application for
mandamus was a nullity because of the new legislation's pro
viding for an appeal from the Commissioner's decision. The
real issue between Martinoff and the Commissioner, however,
was whether the Commissioner exercised an independent,
unfettered judgment when he considered the application. Appli
cants also sought to have the Court direct the Commissioner to
adjudicate, after January 1, 1978, on an application to register
weapons that became prohibited on that date, but had been
only restricted when the application was made.
Held, the application is dismissed. The new legislation gave a
right of appeal, but it did not purport to give a right of appeal
made under the old section 97. That does not mean that it
obliterated, at the same time, other remedies for which the
procedure had already been instituted. The application of pre-
determined guidelines or policies, in respect of requests for such
things as licences or permits, or in respect of other quasi-judi
cial or judicial rulings, is not necessarily fatal to the exercise of
a discretion in coming to a decision. The chief proviso is that
each application, or each case, be considered on an individual
basis. Provided that is done, the decision rendered is not
reviewable, even though its basis is that the person affected, in
the tribunal's opinion, does or does not, as the case may be,
come within the pre-determined guidelines or policies. The
Commissioner gave individual consideration to Martinoff s
application; he did not fail to carry out his legal duty. The
Court has neitherr the right nor the grounds to interfere. The
Court follows the Lemyre decision and dismisses the applica
tion to compel the Commissioner to consider registering a
weapon after the date on which it was declared prohibited, in
spite of the date of application to register the weapon.
Lemyre v. Trudel [1978] 2 F.C. 453, followed.
APPLICATION.
COUNSEL:
Michael John Martinoff on his own behalf.
John Michael Page on his own behalf.
W. D. Stewart for respondents S/Sgt. L. M.
Gossen and Garde B. Gardom.
S. D. Frankel for respondent R. H. Sim-
monds.
SOLICITORS:
Michael John Martinoff on his own behalf.
John Michael Page on his own behalf.
W. D. Stewart, Ministry of the Attorney-Gen
eral for the Province of British Columbia, for
respondent S/Sgt. L. M. Gossen.
Deputy Attorney General of Canada for
respondent R. H. Simmonds.
The following are the further reasons for judg
ment rendered in English by
COLLIER J.: On December 6, 1977 the appli
cants filed a motion for certain relief contemplated
by section 18 of the Federal Court Act'. There
were four distinct issues put forward. On Decem-
ber 13, 1977 judgment was given in respect of two
of the heads of relief claimed. Reasons [[1978] 2
' R.S.C. 1970 (2nd Supp.), c. 10.
F.C. 537] were delivered on January 9, 1978.
There effectively remained only one issue. It was
adjourned for hearing to a later date.
Subsequently, the applicants applied to add, to
the original motion, a further request for relief in
respect of certain firearms not covered in the
original proceeding. A good deal of additional
affidavit evidence, on all sides, was filed. Written
argument was submitted. Oral argument was, as
well, heard. At the conclusion of the latter on June
1, 1978, I stated the remaining portions of the
applicants' motion were dismissed. I said written
reasons would be given. Those reasons now follow.
I set out, first, paragraph 4 of the motion:
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.
On May 31, 1977 Martinoff wrote the Commis
sioner applying for a permit, in form C-302, allow
ing him to carry, anywhere in Canada, any
restricted weapons registered, or which might
become registered, in his name:
(a) to protect life or property; and
(d) for use in target practice. 2
I reproduce the relevant section of the Criminal
Code in effect at that time:
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.
(2) A permit described in subsection (1) may be issued only
where the person authorized to issue it is satisfied that the
2 See paragraphs 97(2)(a),(c) and (d) of the Code as it read
before January 1, 1978.
applicant therefor requires the restricted weapon to which the
application relates
(a) to protect life or property,
(b) for use in connection with his lawful profession or
occupation,
(c) for use in target practice under the auspices of a shooting
club approved for the purposes of this section by the Attor
ney General of the province in which the premises of the
shooting club are located, or
(d) for use in target practice in accordance with the condi
tions attached to the permit.
(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.
(5) A permit to possess a firearm or ammunition may be
issued by a local registrar of firearms in any province to a
person under the age of fourteen years if that person resides
within an area in that province designated by order of the
Governor in Council and the local registrar of firearms is
satisfied that such permit is needed to enable that person to
hunt game for food or family support.
(6) A permit mentioned in subsection (5) that is issued to a
person who resides within any area mentioned in that subsec
tion shall remain in force until the expiration of the period for
which it is expressed to be issued or until that person ceases to
reside within that area, whichever occurs first, unless it is
sooner revoked.
(7) A permit authorizing a person who is fourteen or more
years of age but under the age of sixteen years to possess a
firearm or ammunition, or a permit for the purpose described in
paragraph 98(2)(a) may be issued by a local registrar of
firearms and shall remain in force until the expiration of the
period for which it is expressed to be issued, unless it is sooner
revoked.
(8) No permit, other than a permit for the possession of a
restricted weapon for use as described in paragraph (2)(c) or a
permit mentioned in subsection (3), is valid outside the prov
ince in which it is issued unless it is issued by the Commissioner
or a person expressly authorized in writing by him.
(9) Every permit shall be in a form prescribed by the
Commissioner, but any person who is authorized to issue a
permit relating to any weapon or ammunition may attach to the
permit such reasonable conditions relating to the use, carriage
or possession of the weapon or ammunition as he deems desir
able in the interests of the safety of other persons.
The Commissioner's office answered on June 9,
1977. Martinoff was asked to obtain a written
recommendation from the Local Registrar of
Firearms.
On June 13, 1977 Martinoff replied. The Local
Registrar in Vancouver was the respondent S/Sgt.
Gossen. Gossen and Martinoff had been in a con
tinuing battle in respect of Martinoff's attempts to
register restricted weapons. I quote the following
from the applicant's reply:
... his reply to my request was to the effect that if you wanted
any information from him you could request it yourself directly
from him.
On June 16, 1977 the Commissioner's office
wrote saying:
... we have since corresponded with the Vancouver police
department on your behalf in this regard.
On July 19, 1977 the Commissioner's office sent
a further letter to the applicant. He was advised
the Commissioner was still waiting for a recom
mendation from S/Sgt. Gossen.
On August 5, 1977 the then Commissioner,
himself, wrote as follows:
With regard to your request for a Canada Wide Permit to
Carry a Restricted Weapon, I have been advised by the Van-
couver City Police that our letter to them has been referred to
the Department of the Attorney General for his advice. Should
a reply not be forthcoming within a reasonable time, I will act
upon your application.
Martinoff wrote two further letters in which he
dealt with the C-302 permit.
On September 22, 1977, the present Commis
sioner, himself, wrote:
I have reviewed the circumstances surrounding your request
for a Canada Wide Permit to Carry on Form 302. It is my
opinion that the reasons which you have provided in support of
your request do not justify the issuance of this document. I
must, therefore, decline to issue the said permit.
On September 26, 1977 Martinoff, by letter,
advised the Commissioner he proposed to "appeal"
this decision (and others). He asked to be provided
with detailed reasons for the refusal of the permit.
The Commissioner, on October 31, 1977, said
this:
I must also decline the issuance of a Canada Wide Permit to
Carry on Form C-302, as I consider the reasons provided by
you do not justify the issuance of this Permit. I am attaching
for your information a photocopy of a news release made
jointly by the Minister of Justice and Solicitor General of
Canada concerning the guidelines for issuing of Permits to
Carry. This document is a guide to Local Registrars, and each
application is assessed on its own merits.
The document referred to is as follows:
GUIDELINES FOR ISSUING HANDGUN CARRYING PERMITS
CHANGED FOR NORTHERN AND REMOTE WILDERNESS AREAS
OTTAWA, December 1, 1976—In a joint statement today
Justice Minister Ron Basford and Solicitor General Francis
Fox announced changes in the practice governing the issuance
of permits to carry handguns in remote and wilderness areas in
Canada. The effect of the changes will be to make obtaining a
handgun permit easier for those persons who need to travel in
northern and remote areas for their livelihood and need to
protect their lives against wild animal attacks.
As a restricted weapon, the handgun is strictly controlled in
Canada and the present law governing issuance of carrying
permits for restricted weapons states (section 97 Criminal
Code, 2, (a)) a permit can be granted to a person for among
other reasons if the handgun is "to protect life or property, or
(b) for use in connection with his lawful profession or
occupation."
The new guidelines on applying the law governing issuance of
carrying permits for handguns are as follows:
—that handgun carrying permits be issued to persons who
must travel in northern and remote wilderness areas for the
purpose of protection of life against wild animal attacks if:
1) the work is such that the person is required to come in
contact with wild animals rather than avoid them, and if the
calibre and weapon are adequate to provide protection,
2) the person is a licensed trapper, prospector, geologist,
timber cruiser, etc., who obtains his principal income from
these occupations and must travel in remote areas for extended
periods of time carrying his equipment on his person and if the
calibre and weapon are adequate to provide protection.
These proceedings, for relief in the nature of
mandamus, were filed on December 6, 1977. The
motion came on for hearing on December 13,
1977. An affidavit by the Commissioner, sworn
December 9, 1977, was filed. As earlier recounted,
some portions of the original motion were decided
on December 13, 1977. Paragraph 4 was, by con
sent, not argued at that time.
But on January 1, 1978 sections 82-106 of the
Code were repealed. It is not necessary, for the
purposes of deciding paragraph 4 of this motion, to
reproduce all of the new legislation. The type of
permit Martinoff seeks still exists; the Commis
sioner is one of the persons who may issue it: the
restrictions on its issue are similar to those in the
previous legislation 3 . There is one significant dif
ference relevant to the present matter. Under
former sections 97 and 99 there was no appeal
from the refusal to issue a carrying permit. If there
were any remedy at all, it was likely by way of
mandamus, provided the requisites for the issue of
that writ could be met. Under the now existing
legislation, an appeal from a refusal lies to a
magistrate (see subsection 106.4(8)).
Counsel for the Commissioner contends this out
standing motion for mandamus must, on
"procedural grounds", be dismissed. He relies on
paragraphs 36(c) and (d) of the Interpretation
Act 4 . I reproduce not only those paragraphs, but
paragraphs 35 (b),(c) and (e), as well:
35. Where an enactment is repealed in whole or in part, the
repeal does not
(b) affect the previous operation of the enactment so
repealed or anything duly done or suffered thereunder;
(c) affect any right, privilege, obligation or liability
acquired, accrued, accruing or incurred under the enactment
so repealed;
(e) affect any investigation, legal proceeding or remedy in
respect of any such right, privilege, obligation, liability,
penalty, forfeiture or punishment;
and an investigation, legal proceeding or remedy as described in
paragraph (e) may be instituted, continued or enforced, and the
penalty, forfeiture or punishment may be imposed as if the
enactment had not been so repealed.
36. Where an enactment (in this section called the "former
enactment") is repealed and another enactment (in this section
called the "new enactment") is substituted therefor,
(c) every proceeding taken under the former enactment shall
be taken up and continued under and in conformity with the
new enactment so far as it may be done consistently with the
new enactment;
(d) the procedure established by the new enactment shall be
followed as far as it can be adapted thereto in the recovery or
enforcement of penalties and forfeitures incurred, and in the
enforcement of rights, existing or accruing under the former
enactment or in a proceeding in relation to matters that have
happened before the repeal;
3 See s. 106.2 of the Criminal Law Amendment Act, 1977,
S.C. 1976-77, c. 53.
4 R.S.C. 1970, c. I-23.
It is said the effect of paragraphs 36(c) and (d),
applied to this case, means Martinoff's mandamus
proceedings, arising out of a decision under the
former legislation, cannot now be concluded
because the new legislation provides for an appeal
procedure; the old mandamus proceedings cannot
be pursued under the new provisions because they
cannot be continued "consistently with the new
enactment". To put it baldly, it is asserted the
mandamus proceedings of December 1977,
launched against the Commissioner's refusals of
September and October 1977, are dead.
I do not agree.
One must read the relevant paragraphs of sec
tions 35 and 36 together. In December 1977 Mar-
tinoff did not have a remedy spelled out by statute.
The common law prerogative writ of mandamus
existed. It is provided for in section 18 of the
Federal Court Act. The new legislation gave a
right of appeal, to a magistrate, against a decision
made under the new legislation. It did not purport
to give a right of appeal, to a magistrate, against
decisions made under old section 97. But that does
not mean it obliterated, at the same time, other
remedies, the procedure for which had already
been instituted.
Counsel for the Commissioner relied, as I under
stood it, on the decision of Marceau J. in Lemyre
v. Trudel s. In that case an application was made
for a permit to carry, and to register, a specified
weapon. The application was made under the
"old" gun control legislation. By the time the
application reached the Commissioner, the new
legislation was in effect. The particular weapon
was no longer restricted, but prohibited. Man-
damus was refused.
The facts of the Lemyre case are quite distin
guishable. Marceau J. merely decided mandamus
could not lie, because the respondents no longer
had the power, by law, to issue the particular
permit and certificate sought.
I, therefore, turn to the merits of this
application.
5 [1978] 2 F.C. 453.
The classic requisites, which an applicant for
mandamus must meet, are well-known 6 . Applying
them to this case, there must be a legally enforce
able public duty on the Commissioner to issue the
permit; the issuance, or not, must not be complete
ly discretionary on his part; there must be a specif
ic demand for performance of the duty, and a
refusal (express or constructive). In any event the
Court, itself, has a discretion as to whether, in the
particular circumstances, mandamus will be
granted.
The only real issue between Martinoff and the
Commissioner, as I see it, is whether the Commis
sioner exercised an independent, unfettered judg
ment when he considered and refused the applica
tion. I quote from page 9 of the written submission
made on behalf of the Commissioner:
It is not argued that the Commissioner is entitled to exercise
his discretion to issue or not to issue such a permit arbitrarily.
It may even be conceded for the sake of this argument that if a
proper case is made out by the Applicant the Commissioner
may have a duty to issue the permit requested. It is submitted,
however, that what is a "proper" case is for the Commissioner
to decide and as long as he does so by giving individual
consideration to the Applicant, and by the Application of
reasonable principles which are not in conflict with the enabling
legislation, the Commissioner's discretion may not be interfered
with by prerogative writ.
I go a little further.
The Commissioner does not, in my view, have an
unfettered or arbitrary discretion as to whether he
will or will not issue a permit. If an applicant
brings himself within subsection 97(2), then, as I
see it, the Commissioner has a compellable duty to
issue one. The general principles are set out in S.
A. de Smith (earlier cited) at page 485:
When entertaining applications for mandamus to compel the
proper performance of functions in which a substantial discre
tionary element is present (e.g. licensing functions), the attitude
of the courts has been less consistent. In so far as applications
have been based on the contention that the competent authority
has made errors of law or fact in relation to matters determi
nable by it prior to exercising its discretion, they have generally
refused to intervene unless the error is held to go to jurisdiction
6 S. A. de Smith, Judicial Review of Administrative Action
(3rd ed.) 1973, pp. 481-505. Halsbury's Laws of England (4th
ed.) vol. 1, paras. 89-91 and 120-126. Karavos v. Toronto and
Gillies [1948] 3 D.L.R. 294, followed in Wright v. Town of
Burlington (1959) 17 D.L.R. (2d) 537.
or to constitute a refusal to exercise jurisdiction or discretion—
there is no universal rule that the validity of the exercise of
discretion is contingent upon correct findings of law and fact—
but in some cases manifest errors of law and fact have been
treated as constituting failure to hear and determine according
to law and as justifying the award of mandamus. On the other
hand, mandamus has frequently been employed to give redress
for misapplication of the discretionary power itself. Although
the courts have repeatedly disclaimed any jurisdiction to review
the wisdom or reasonableness of the exercise of discretionary
powers, otherwise than on appeal, they have long applied
judge-made criteria by which the exercise of "judicial" discre-
tions must be measured; and from early times mandamus was
recognized as an appropriate remedy for certain forms of abuse
of discretion. The duty to observe these basic principles of
legality in exercising a discretion is, unlike the "duty" to apply
the law correctly to findings of fact, prima facie enforceable by
mandamus. Hence where an authority has misconceived or
misapplied its discretionary powers by exercising them for an
improper purpose, or capriciously, or on the basis of irrelevant
considerations or without regard to relevant considerations, it
will be deemed to have failed to exercise its discretion or
jurisdiction at all or to have failed to hear and determine
according to law, and mandamus may issue to compel it to act
in accordance with the law.
The issue really goes to what factors governed
the Commissioner's decision.
I earlier noted the Commissioner, on December
6, 1977, filed an affidavit. I shall refer to it as the
first affidavit. In my reasons of January 9, 1978,
[[1978] 2 F.C. 537] I described the affidavit as
seriously defective in form. I, at that time, said [at
page 542]:
In the final analysis of the issues I have heard today, I did
not have to rely on the Commissioner's affidavit.
But the Commissioner filed a second affidavit,
sworn February 8, 1978.
In both affidavits the Commissioner stated that
permits to transport within a province, or to pos
sess within a province (other than at a residence or
place of business) restricted weapons, have never
been issued by him, his predecessors, nor by
anyone on their behalf. This type of permit is
referred to as a C-301 permit. But permits of that
type have been issued in the Northwest Territories
and the Yukon Territory. Both affidavits further
disclose that the Attorney-General for British
Columbia has authorized others to issue such per
mits for restricted weapons, but has excluded the
machine-gun type from that authorization.
In both affidavits it is said that only the Com
missioners of the day have issued Canada-wide
permits (the type sought by Martinoff). This kind
is referred to as a C-302 permit.
Paragraph 10 of the first affidavit is as follows:
10. I am informed and believe that
(a) a Memorandum of Agreement, attached as Appendix
"D", has been entered into between the Government of
Canada and the Government of the Province of British
Columbia for the use and employment of the Royal Canadi-
an Mounted Police to provide and maintain Provincial Police
Services within the Province, and as one of the terms of this
Agreement the Commanding Officer of the Provincial Police
Services shall act under the direction of the Attorney Gener
al in the administration of justice in the Province; and
(b) In accordance with current and historical practice the
Commissioner of the day and the members of the Force
posted in British Columbia have complied with the instruc
tions and policies of the Attorney General for British
Columbia as these relate to the registration of firearms and
the issuance of the permits mentioned in paragraph 5 above
within a Province, to the extent that such instructions and
policies are not inconsistent with law; and
I have formed the opinion it is desirable in the public's interest
and in the best interests of the administration of justice in the
Province of British Columbia that the terms of this Agreement
be complied with and the current and historical practice men
tioned above continue.
The "permits mentioned in paragraph 5" are
those limited to transporting or possessing within a
province (C-301).
To understand the significance of this paragraph
of the affidavit, it is necessary to recount some
facts which are now academic. Martinoff had
applied to S/Sgt. Gossen for a C-301 permit to
transport certain restricted weapons from the Van-
couver Police Station to his home, and to transport
certain others from a Vancouver dealer to S/Sgt.
Gossen's office for examination. The applicant,
Page, had requested a similar permit to transport a
restricted weapon from Martinoff's residence to
S/Sgt. Gossen's office. S/Sgt. Gossen had refused
to grant the permits. It was his position the weap
ons were of the automatic type; his authority from
the Attorney-General excluded him from issuing
C-301 permits for, or processing applications for
registration of, weapons of that kind 7 .
In the first affidavit, the Commissioner declined
to issue the C-301 permits on these grounds:
... it would be improper and contrary to the intent and purpose
of the relevant provisions of the Criminal Code, and improper
and contrary to the instructions and policies of the Attorney
General of British Columbia mentioned in paragraphs 9 and 10
above, and thereby a breach of the Memorandum of Agree
ment mentioned in paragraph 10 above, for me to issue these
permits; and accordingly, I have exercised the discretion given
me as Commissioner pursuant to the authority of paragraph
(1)(a) and subsection (3) of section 97 of the Criminal Code
and have declined to issue ....
The instructions and policies of the Attorney-
General are those referred to in my earlier reasons:
removing the power, from appointees, of issuing
permits in respect of, or processing applications for
registration of, certain kinds of restricted weapons,
including automatic ones.
If the above-quoted statement is taken literally,
one could conclude the Commissioner, because of
the policies and wishes of the Attorney-General of
British Columbia, would not issue a C-302 permit
useable in British Columbia.
In the second affidavit there is no mention made
of the policies and instructions of the Attorney-
General of British Columbia, nor is the policing
agreement set out. (See paragraph 10 of the first
affidavit, reproduced above.)
In the first affidavit, in respect of C-302 per
mits, this was said:
7. I am informed and believe that the issuance of a Canada-
wide Permit to Possess a Restricted Weapon is strictly con
trolled and is issued only in limited circumstances to a person,
other than for a purpose described in paragraph (2)(c) and
sub-section 3 of section 97 of the Criminal Code, who is a bona
7 In my earlier reasons, I held the restriction imposed by the
Attorney-General was not permissible.
fide seller of restricted weapons, or who must travel in northern
and remote wilderness areas in connection with his lawful
profession or occupation for the purpose of protection of life
against wild animals if:
— the work is such that the person is required to come in
contact with wild animals rather than avoid them, and if the
calibre and weapon are adequate to provide protection;
— the person is a licensed trapper, prospector, geologist,
timber cruiser, etc., who obtains his principal income from
these occupations and must travel in remote areas for extend
ed periods of time carrying his equipment on his person and
if the calibre and weapon are adequate to provide protection.
In the second affidavit, in respect of the C-302
permits, it was put this way:
7. I have adopted a policy at this time that the issuance of a
Canada-wide Permit to Possess a Restricted Weapon should be
strictly controlled and issued only in limited circumstances to a
person, other than for a purpose described in former paragraph
(2)(c) and subsection 3 of section 97 of the Criminal Code
(now paragraph (2)(c) and subsection 3 of section 106.2), who
is a bona fide seller of restricted weapons, or who must travel in
northern and remote wilderness areas in connection with his
lawful profession or occupation for the purpose of protection of
life against wild animals if:
(i) the work is such that the person is required to come in
contact with wild animals rather than avoid them, and if the
calibre and weapon are adequate to provide protection;
(ii) the person is a licensed trapper, prospector, geologist,
timber cruiser, etc., who obtains his principal income from
these occupations and must travel in remote areas for extend
ed periods of time carrying his equipment on his person and
if the calibre and weapon are adequate to provide protection.
The difference is subtle. In the first affidavit
there is no mention of any policy. In the second,
the Commissioner deposes as to a particular
policy, as of February 1978. That policy is the
same as the earlier practice governing the issue,
presumably by others, of C-302 permits.
I note, at this point, Simmonds did not become
Commissioner until September 1, 1977. It may
well be the Martinoff application was his first
experience with C-302 permits. The earlier, what I
have termed "practice", and the present Commis
sioner's "policy" are almost word-for-word from
the guidelines, published December 1, 1976, by the
Justice Minister and the Solicitor General.
But, in both affidavits in respect of paragraph 4
of this motion, this is said (I have used the second
affidavit):
d) in respect to the matter identified as paragraph 4 in the
Notice of Motion herein, I have formed the opinion from the
material forwarded to me by Michael John Martinoff that the
said Michael John Martinoff does not come within either of the
categories mentioned in paragraph 7 of this affidavit, and
accordingly I have exercised the discretion given to me as
Commissioner of the Royal Canadian Mounted Police pursuant
to the authority of former subsection 97(8) of the Criminal
Code and have declined to issue to the said Michael John
Martinoff a Canada-wide Permit to Possess a Restricted
Weapon Form C-302.
I had, at first, in perusing the written submis
sions and listening to the oral argument, been
concerned with whether the Commissioner had, in
coming to his decision, really put his mind to the
particular application by Martinoff, and to its
particular facts. I had wondered whether he (the
Commissioner) had, as a matter of routine, applied
a pre-determined blanket policy, formulated by his
predecessors and two Ministers of the Crown: a
rubber-stamp approach, of the type described in
Lloyd v. Superintendent of Motor Vehicles. 8
The application of pre-determined guidelines or
policies, in respect of requests for such things as
licences or permits, or in respect of other quasi-
judicial or judicial rulings, is not necessarily fatal
to the exercise of a discretion in coming to a
decision. The chief proviso, to my mind, is that
each application, or each case, be considered on an
individual basis. Provided that is done, the decision
reached is not reviewable, even though its basis is
that the person affected, in the opinion of the
tribunal, does, or does not, as the case may be,
come within pre-determined guidelines or
policies 9 .
I am satisfied the Commissioner gave individual
consideration to Martinoff's application. He deter
mined that Martinoff had not satisfied ' him
restricted weapons were, anywhere in Canada,
required by him to protect his life or property, or
for use in target practice. The Commissioner did
not fail to carry out his duty in a legal way. He, in
8 [1971] 3 W.W.R. 619.
9 See: Lloyd v. Superintendent of Motor Vehicles, supra at
626-627 (B.C.C.A.): Re Cruikshank (1976) 64 D.L.R. (3d)
420 at 424 (B.C.S.C.). Re Purdy (1975) 20 C.C.C. (2d) 247
(N.W.T.S.C.).
fact, carried out his duty to consider and decide.
His decision was adverse to the applicant. This
Court has neither the right nor grounds to
interfere.
The order sought in paragraph 4 of the motion
is refused.
There remains paragraph 5 of the motion. It was
added, by consent, in February, 1978. It reads:
5. that the Respondent R. H. Simmonds, Commissioner of the
RCMP, does adjudicate the Application of John Michael Page
to Register his firearm Winchester M-2 #1133659 and the
Applications of Michael John Martinoff to Register his three
firearms Voere American 180 #A004866, Plainfield M-2
#793-A, and Harrington & Richardson Reising M-50 #2136 as
the Respondent R. H. Simmonds would have adjudicated those
Applications had he received them at his office in Ottawa
before 1 January, 1978.
It is necessary, in order to understand the above
paragraph, to outline certain facts.
Page applied, on July 29, 1977, under the "old"
gun control laws, to register his Winchester M-2.
On September 13, 1977 S/Sgt. Gossen refused to
process the application. His grounds were that his
appointment by the Attorney-General of British
Columbia did not empower him to process applica
tions for automatic-type weapons. Because of my
ruling of December 13, 1977 in favour of Martin-
off, the Attorney-General of British Columbia, in
December, instructed S/Sgt. Gossen to process an
application by Page to register the Winchester
M-2. Page made a new application dated either
December 20 or December 21, 1977. It was mailed
by Gossen to the Commissioner on December 22,
1977. For some reason it did not reach him until
January 3, 1978.
At that time the new legislation had come into
effect. The Winchester M-2 was no longer a
restricted weapon. It was, effective January 1,
1978, a prohibited weapon.
The Commissioner, in his second affidavit,
stated that, if the application had been received by
him prior to January 1, he would have registered
the weapon and issued a certificate; because of the
uncertain legal position in respect of the new
legislation he had sought advice and was awaiting
a reply; until he had that reply, he declined to act.
By the time of the further hearing of this motion
in June, the Lemyre decision had been handed
down. It was then implicit that the Commissioner
refused to register on the grounds set out in the
reasons of Marceau J.
I turn to the applications by Martinoff to regis
ter the Voere American 180, the Plainfield M-2
and the Harrington & Richardson Reising M-50.
In the original motion, Martinoff had sought an
order that S/Sgt. Gossen process his applications
for registration of an MAC-10 and a PMCM-2.
The applications were originally made on June 29,
1977. On December 13, 1977 I directed S/Sgt.
Gossen to process the applications. By that time
Martinoff's wholesaler in Montreal could not
deliver the MAC-10 and the PMCM-2. It was
agreed S/Sgt. Gossen would process applications
for registration of substitute and other weapons.
Application was then made in respect of the 3
weapons described in paragraph 5. The application
in respect of the Voere was presented to S/Sgt.
Gossen on December 27, 1977.
I set out the following from Martinoff's affidavit
of February 17, 1978:
4. that when I made Application to Register my Voere Ameri-
can 180 firearm S/Sgt. Gossen told me that the Commissioner
of the RCMP had issued instructions that Applications to
Register automatic firearms were to be transmitted to him
forthwith by electronic apparatus; that the Commissioner had
made the electronic apparatus of the Vancouver RCMP avail
able to him; that he was deciding not to use it but to send the
Applications by ordinary mail; and that if the Applications
were to arrive after 1 January that was our problem, not his;
S/Sgt. Gossen, by affidavit, disputes this asser
tion that he would use the mails, only. Affidavits
sworn by Hough, Backus, Cropper, and a further
affidavit sworn by Martinoff were filed to confirm
Martinoff's statement set out above.
There was no cross-examination by anyone on
any of the affidavits. I make no finding as to where
the truth lies.
The Voere application was mailed by S/Sgt.
Gossen on December 28, 1977. It did not reach the
Commissioner until after January 1, 1978.
The applications in respect of the Plainfield M-2
and the Harrington & Richardson Reising M-50
were brought to S/Sgt. Gossen's office on the
afternoon of Friday, December 30, 1977. The next
three days were not working days. On January 3,
1978 S/Sgt. Gossen processed and mailed the
applications to the Commissioner.
As with Page, the three weapons had been, until
January 1, 1978, merely restricted weapons. On
that date they became prohibited weapons.
Mr. Martinoff, in argument, ably endeavoured
to distinguish the Lemyre decision. He advanced
other submissions which may not have been made
to Marceau J. The point considered by Marceau J.
is a thorny one. Opinions may well vary. I said, on
June 1, 1978, I proposed to follow the Lemyre
decision. I do not retract from that statement. It is,
I think, desirable there be uniformity of decision
and treatment of citizens affected by the legisla
tion of January 1, 1978.
I, therefore, for the purposes of this motion,
follow the decision of Marceau J. I dismiss para
graph 5 of this motion.
I expressed the hope to Mr. Martinoff, on June
1, 1978, that he would appeal my ruling in respect
of paragraph 5 of his motion, and obtain the views
of higher courts. I understand an appeal has been
filed in the Lemyre case. I repeat my invitation to
Mr. Martinoff and Mr. Page to appeal. It may be
all appeals can be heard at the same time. I do not
know. In any event, the applicants here should, if
they so conclude, file an appeal, in time, to keep
their rights alive if, for some reason, the Lemyre
appeal is abandoned or not pursued.
There will be no costs in respect of this whole
motion.
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.