T-1434-83
Roman M. Turenko (Petitioner)
v.
Commissioner of the Royal Canadian Mounted
Police, R. H. Simmonds and Assistant Commis
sioner of the Royal Canadian Mounted Police, A.
M. Headrick (Respondents)
Trial Division, Dubé J.—Ottawa, October 12, 13
and 27, 1983.
Judicial review — Prerogative writs — Mandamus —
Restricted weapon carriage permit — Petitioner, Brinks secu
rity inspector, performing duties involving element of danger in
protecting others and self — Application for Canada-wide
carriage permit refused by RCMP Commissioner as issuance
not recommended by local registrar of firearms pursuant to
provincial policy against allowing carriage of restricted weap
ons by security personnel not in uniform — Whether legally
enforceable duty on Commissioner to issue permit — Com
missioner's discretion circumscribed by s. 106.2(2) of Code —
Provincial policy concerning uniforms not valid criterion for
refusal — Commissioner not authorized to review decision of
Assistant Commissioner — Mandamus to issue — Criminal
Code, R.S.C. 1970, c. C-34, ss. 98(2)(b)(i),(ii),(iii), 106.2(1),
(2),(10) (rep. and sub. S.C. 1976-77, c. 53 s. 3) — Export and
Import Permits Act, R.S.C. 1970, c. E-17, s. 8 — Interpreta
tion Act, R.S.C. 1970, c. I-23, s. 26.
A Brinks security inspector, whose duties involve a certain
element of danger in protecting others and himself, applied for
a Canada-wide permit to carry a restricted weapon. The
application was denied when the local registrar of firearms
refused to recommend the issuance of the permit on the basis of
a provincial policy not to allow the carriage of restricted
weapons by security personnel out of uniform. Subsequent to
the refusal, the Assistant Commissioner recommended to his
superiors that the permit be issued. The Commissioner
reviewed the Assistant Commissioner's decision and declined to
issue the permit.
Held, mandamus should issue. This Court had already decid
ed in Martinoff et al. v. Gossen, et al., [1979] 1 F.C. 652
(T.D.) that the Commissioner's discretion under subsection
106.2(2) of the Code is not unfettered or discretionary: it is
circumscribed by the plain language of that subsection. The
wearing of a uniform is not a requirement under the Code nor
under the new RCMP policy on the issuance of "Canada-wide
permits".
The Assistant Commissioner (1) failed to consider relevant
matters; (2) misdirected himself in failing to apply criteria
provided by the Code; (3) took into account a wholly extrane
ous consideration: whether the petitioner's duties were carried
out while wearing a uniform; (4) omitted to take into account
the nature of the occupation.
Finally, there are no provisions in the Code authorizing the
Commissioner to "review the decision" already made by the
Assistant Commissioner.
CASES JUDICIALLY CONSIDERED
APPLIED:
Martinoff et al. v. Gossen, et al., [1979] 1 F.C. 652
(T.D.); Padfield and others v. Minister of Agriculture et
al., [1968] 1 All E.R. 694 (H.L.).
DISTINGUISHED:
Maple Lodge Farms Limited v. Government of Canada
et al., [1982] 2 S.C.R. 2; 44 N.R. 354, affirming [1981]
1 F.C. 500 (C.A.), affirming [1980] 2 F.C. 458 (T.D.).
CONSIDERED:
Walker v. Gagnon et al., [1976] 2 F.C. 155; 30 C.C.C.
(2d) 177 (T.D.).
REFERRED TO:
Landreville v. The Queen, [1981] 1 F.C. 15 (T.D.).
COUNSEL:
Mark G. Peacock for petitioner.
Claude Joyal for respondents.
SOLICITORS:
Byers, Casgrain, Montreal, for petitioner.
Federal Department of Justice, Montreal, for
respondents.
The following are the reasons for order ren
dered in English by
DuBÉ J.: This motion seeks the issuance of a
writ of mandamus against the respondents requir
ing them to exercise their statutory duty under
subsections 106.2(2) and (10) of the Criminal
Code of Canada [R.S.C. 1970, c. C-34 (rep. and
sub. S.C. 1976-77, c. 53, s. 3)] and to issue a
permit to the petitioner to carry a restricted
weapon, Canada-wide, while in the execution of
his duties as security inspector for Brinks Canada
Limited.
The relevant subsections of the Criminal Code
of Canada read as follows:
106.2 (1) A permit authorizing a person to have in his
possession a restricted weapon elsewhere than at the place at
which he is otherwise entitled to possess it, as indicated on the
registration certificate issued in respect thereof, may be issued
by the Commissioner, the Attorney General of a province, a
chief provincial firearms officer or a member of a class of
persons that has been designated in writing for that purpose by
the Commissioner or the Attorney General of a province 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
applicant therefor requires the restricted weapon to which the
application relates
(a) to protect life;
(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.
(10) No permit, other than
(a) a permit for the possession of a restricted weapon for use
as described in paragraph (2)(c),
(b) a permit to transport a restricted weapon from one place
to another place specified therein as mentioned in subsection
(3), or
(c) a permit authorizing an applicant for a registration
certificate to convey the weapon to which the application
relates to a local registrar of firearms as mentioned in
subsection (4),
is valid outside the province in which it is issued unless it is
issued by the Commissioner or a person designated in writing
by him and authorized in writing by him to issue permits valid
outside the province and is endorsed for the purposes of this
subsection by the person who issued it as being valid within the
provinces indicated therein.
The petitioner, while employed as an armoured
truck employee of Brinks, was permitted to carry a
restricted weapon within the Province of Ontario.
On June 15, 1981, he was promoted to his present
position of security inspector which requires him to
travel across Canada to visit Brinks' thirty-seven
branches. He applied (through his supervisor,
Director of Security, Fred Meitin) for, and was
granted, a Canada-wide permit to carry his
restricted weapon, a Colt revolver. The one-year
permit expired on November 27, 1982. On
November 30, 1982, Meitin applied to have the
petitioner's permit reissued for the following year
in order to carry out the same functions. By letter
dated February 18, 1983, signed by Assistant
Commissioner Headrick, the application was
denied, as follows:
Please be advised that due to the fact that the issuance of this
permit has not been recommended by Mr. TURENKO'S Local
Registrar of Firearms, The Chief of Police, Metropolitan
Toronto Police Force, I regret therefore that I will not issue
him with the requested permit.
On March 2, 1983, Meitin wrote to the Chief of
Police of Metro Toronto requesting to be advised
of the "reasons" behind his refusal to recommend
the issuance of the permit to the petitioner. On
March 15, 1983, he was advised as follows by
Deputy Chief Noble of the following "reason":
Ontario Provincial policy does not allow private investigators or
security type persons, out of uniform, to carry restricted
weapons.
Mr. Turenko's actual duties do not call for him to be in
uniform and is therefore a contravention of the Provincial
policy.
In an affidavit dated July 5, 1983, Assistant
Commissioner Headrick asserts that the negative
recommendation of the local registrar of firearms
(the Metro Chief of Police) was based on two
distinct grounds:
(a) Mr. Turenko was to perform his duties out of uniform
which is contrary to Ontario Provincial policy and (b) Mr.
Turenko's duties are that of a plainclothes investigator on
surveillance of Brinks Canada Limited vehicles, which does not
warrant the carrying of concealed restricted weapons.
Pursuant to further correspondence, motions to
this Court, and the cross-examination of the
Assistant Commissioner upon his affidavit, several
documents were produced including two internal
memos. A memo dated May 25, 1983 from the
Assistant Commissioner to his immediate superior,
the Deputy Commissioner, recommends the issu
ance of the permit on the ground that "this request
for a Canada-wide permit to carry is controversi
al" and that "Ontario is the only province with this
policy requiring the wearing of uniform". A
second memo, dated June 6, 1983 from the Deputy
Commissioner to the Commissioner "strongly"
recommends that the permit be issued "as you
have the statutory authority to do so and you do
not violate any provincial statutes". The memo
goes on to state that "the Ontario provincial fire
arms officer has already issued four provincial
permits . to individuals not in uniform which is
contrary to their own policy".
In his affidavit, dated September 15, 1983,
Commissioner Simmonds states that he "had occa
sion to review the decision taken" by Assistant
Commissioner Headrick on February 18, 1983 and
that his decision "is to decline issuance of the
requested permit". A copy of that decision is
attached to the affidavit and bears the same date,
September 15, 1983.
In that letter addressed to the petitioner himself
the Commissioner reviews the situation and states
that in his opinion "there are insufficient grounds
to justify" the permit. He goes on to state that the
petitioner's "main duties are that of surveillance
and the reporting of any suspicious individuals or
situations to the local police". He explains to the
petitioner that he is not personally exposed to
violence in the event of an armed robbery "unless
you choose to intervene". The Commissioner con
cludes that "the only instance where I feel you
may require the carrying of a firearm is when you
are engaged in transporting highly valuable items
(such permits can be requested from the prov
inces)". There is no explanation as to why, under
the same circumstances, the petitioner was issued
a Canada-wide permit the previous year.
The actual duties performed by the petitioner
are described in his own affidavit as follows: he is
required to be constantly in and around areas
where large sums of money are transported, with a
high risk to his life. He accompanies local staff
during the opening of Brinks' vaults in the morn
ing and the closing at the end of the day and must
carry out searches for hidden armed robbers on the
premises. He is dressed in civilian clothes so as to
remain unidentified as he observes any suspicious
individuals in the area while armoured trucks pick
up and deliver the valuables. At six foot seven
inches and 270 pounds, he is detected on sight by
Brinks' armoured truck employees, yet unknown to
prospective bank robbers. He is called upon to
stand very close to the loading and unloading of
armoured trucks so as to intervene, if necessary, to
protect the lives of Brinks' uniformed guards. He
has made himself competent in the handling of his
restricted weapon and has taken hand-gun courses.
In fact, he is more competent now than when he
obtained his first Canada-wide permit, as he has
since successfully completed a combat hand-gun
course for which he received a diploma on August
20, 1982.
The Criminal Code of Canada provides no
appeal from a refusal to grant an application for a
permit to carry a restricted weapon valid Canada-
wide. Consequently, mandamus is the appropriate
remedy if this Court decides that there is a legally
enforceable duty upon the Commissioner, or a
person designated by him for that purpose, to issue
the permit and that he failed to do so.
Counsel for the respondents referred me to my
own decision in Maple Lodge Farms Limited v.
Government of Canada et al.' wherein I refused to
issue a mandamus ordering the Minister to grant a
supplementary import permit allowing the appli
cant to import more chickens than allowed under
the global import quota under the Import Control
List. I found that the Minister under the Export
and Import Permits Act [R.S.C. 1970, c. E-171
had the discretion to issue, or not to issue, the
permit and that it was not for the Court to order
him to do otherwise, unless his decision was
"unreasonable or tainted with bad faith". My
decision was confirmed by the Court of Appeal 2
which held that the word "may" in section 8 of the
Act was to be construed as permissive, unless the
context indicated a contrary intention. That deci
sion found favour with the Supreme Court of
Canada' which held that
Where the statutory discretion has been exercised in good faith
and, where required, in accordance with the principles of
natural justice, and where reliance has not been placed upon
' [1980] 2 F.C. 458 [T.D.].
2 [1981] 1 F.C. 500 [C.A.].
3 [[1982] 2 S.C.R. 2 at pp. 7-8]; 44 N.R. 354, McIntyre J.
considerations irrelevant or extraneous to the statutory purpose,
the courts should not interfere.
It was not established in the Maple Lodge case
that the Minister had relied on extraneous con
siderations or had otherwise misdirected himself.
We are not dealing here with a complex adminis
trative procedure, such as contemplated by the
Export and Import Permits Act, a matter better
left to the discretion of the Minister and the
administration of his officials, but with a very
precise subsection of the Criminal Code of Canada
authorizing the issue of a permit under very pre
cise and simple criteria. Moreover, this Court has
already decided that the Commissioner does not
enjoy an unfettered or arbitrary discretion under
subsection 106.2(2) of the Criminal Code of
Canada. In Martinoff et al. v. Gossen, et al., 4 my
brother Collier, addressing himself to the prede
cessor provision, had this to say [at page 660]:
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:
The last phrase of de Smith's quotation [at page
661] bears reproduction:
Hence where an authority has misconceived or misapplied its
discretionary powers by exercising them for an improper pur
pose, 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.
It seems to me that Parliament has conferred a
discretion upon the Commissioner, and other per
sons designated, with the intention that the discre
tion be used to promote the restricted weapons
policy outlined in the Criminal Code of Canada.
The discretion is far from being absolute. It is
circumscribed by the plain language of subsection
106.2(2). Where an applicant brings himself
within the requirements of the subsection, he
ought not to be deprived of the use of the restrict
ed weapon which he needs to protect his life and
the life of others in connection with his lawful
4 [1979] 1 F.C. 652 [T.D.].
occupation. The Criminal Code of Canada does
not prescribe that the issuance of such a permit be
limited to applicants wearing uniforms.
In Walker v. Gagnon et a1., 5 my colleague
Walsh J. issued a mandamus ordering the regis
trar of firearms for the Province of Quebec to
endorse the petitioner's application and perform
the acts outlined in subparagraphs 98(2)(b)(i)(ii)
and (iii) of the Criminal Code of Canada. He held
that the officer had no authority to submit the
petitioner to fingerprinting and photography in the
absence of specific legal provisions to that effect in
the Criminal Code of Canada.
On December 1, 1982, a new policy regarding
the issuance of Canada-wide permits was adopted
by the Royal Canadian Mounted Police. The
policy states that such permits will only be issued
to four classes of individuals. The first two classes
include persons who may encounter wild animals
or who are in the business of selling restricted
weapons. The two paragraphs dealing with the
other two classes of persons, and the remainder of
the policy, bear reproduction:
(C) Persons whose lawful profession or occupation (i.e. security
guard) are responsible for the security of highly valued negoti
able materials or attractive items and are required to travel
interprovincially, or
(D) Persons who can show that they have been subjected to
violence, or that they can reasonably expect to encounter
violence when;
(i) carrying out their lawful profession, occupation or private
affairs, or
(ii) protecting the lives of others.
Persons requesting permits under (A), (C) or (D), as noted
above, will be required to show proficiency in the proper use,
handling and care of restricted weapons and the weapon to be
carried must be registered to the applicant.
Issuance must be recommended by a provincial authority, (i.e.
Local Registrar of Firearms). Additionally, applications under
(D) must be accompanied by a written recommendation from
the Chief of Police in the area in which the applicant resides,
strongly supporting issuance.
The foregoing are to be considered only as basic guidelines for
the issuance of Permits to Carry, as each request will be
individually considered on its own merits by the Commissioner,
5 [[1976] 2 F.C. 155]; 30 C.C.C. (2d) 177 [T.D.].
or his delegate, and issued under authority of Section 106.2(1)
of the Criminal Code.
Thus, even the new policy does not refer to the
wearing of a uniform as a qualifying criterion. The
policy extrapolates from the provisions of the
Criminal Code of Canada and spells out that
persons whose lawful occupations connote respon
sibility for highly valued items, and are required to
travel interprovincially, are individuals who do
qualify. Also persons who can reasonably expect to
encounter violence in the course of their occupa
tion, or in protecting the lives of others, do qualify
under the policy. If the petitioner does not belong
to classes (C) and (D), who does?
The decision in Padfield and others v. Minister
of Agriculture et al. 6 (applied in Landreville v.
The Queen') is authority for the proposition that
the Court must protect those individuals who are
aggrieved when persons in authority have failed to
exercise their discretion according to the policy of
the legislation providing the discretion. Lord
Upjohn (at page 717) adopted the convenient clas
sification of Lord Parker C.J. I will do likewise.
The Minister in exercising his powers and duties conferred on
him by statute can only be controlled by a prerogative order
which will only issue if he acts unlawfully. Unlawful behaviour
by the Minister may be stated with sufficient accuracy for the
purposes of the present appeal (and here I adopt the classifica
tion of LORD PARKER, C.J., in the divisional court): (a) by an
outright refusal to consider the relevant matter, or (b) by
misdirecting himself in point of law, or (c) by taking into
account some wholly irrelevant or extraneous consideration, or
(d) by wholly omitting to take into account a relevant consider
ation. There is ample authority for these propositions which
were not challenged in argument.
In my view, the Assistant Commissioner failed,
firstly to consider relevant matters, namely that
the applicant's [petitioner's] function is to protect
lives and valuables in connection with his lawful
occupation. Secondly, he misdirected himself by
failing to apply the criteria provided by the Crimi
nal Code of Canada and the policy guidelines.
Thirdly, he took into account a wholly extraneous
consideration, the obligation to wear a uniform.
6 [1968] 1 All E.R. 694 [H.L.].
[1981] 1 F.C. 15 [T.D.].
Fourthly, he omitted to take into account the
nature of the occupation of the applicant and the
necessity for his own protection, and for the pro
tection of others, to carry the restricted weapon
throughout Canada.
When the Assistant Commissioner recommend
ed in his memo of May 25, 1983, that the permit
be issued, he still had full authority to award such
permit, having been designated by the Commis
sioner in his capacity as Director, Laboratories
and Identification Services as a member of a class
of persons to issue permits under subsection
106.2(1) of the Criminal Code of Canada. (He left
that position on June 1, 1983.) One week before
his departure he recommended the issuance of
such permit, but failed to do so. Where such power
is conferred and duty imposed, the power may be
exercised and the duty shall be performed when
the occasion arises. 8 Having expressed the desire
to do what he was expressly authorized to do, he
ought to have done it. Of course, he is no longer
compellable to exercise his former statutory duty.
It seems obvious to me that the Assistant Com
missioner's decision of February 18, 1983 denying
the permit was based on the Ontario requirement
for a uniform, a consideration extraneous to the
Criminal Code of Canada. That decision cannot
stand. His recommendation of May 25, 1983 to
issue the permit was not carried out. And there are
no provisions in the Criminal Code of Canada
authorizing the Commissioner "to review the deci
sion" already made by the Assistant Commission-
er—a person designated to issue such permit—and
to add other grounds to justify the decision.
A writ of mandamus will therefore issue order
ing the Commissioner to issue a permit to the
petitioner under subsection 106.2(2) of the Crimi
nal Code of Canada to carry a restricted weapon
Canada-wide while in the execution of his duties
as security inspector for Brinks Canada Limited.
8 See Interpretation Act, R.S.C. 1970, c. I-23, s. 26.
ORDER
A writ of mandamus shall hereby issue ordering
the respondent Commissioner to exercise his statu
tory duty under subsection 106.2(2) of the Crimi
nal Code of Canada and to issue a permit to the
petitioner authorizing him to carry a restricted
weapon Canada-wide while in the execution of his
duties as security inspector for Brinks Canada
Limited. Costs to the petitioner.
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.