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.
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.