A-1626-83
Commissioner of the Royal Canadian Mounted
Police, R. H. Simmonds and Assistant Commis
sioner of the Royal Canadian Mounted Police, A.
M. Headrick (Appellants)
v.
Roman M. Turenko (Respondent)
Court of Appeal, Pratte, Hugessen and Mac-
Guigan JJ.—Montreal, September 4, 5 and 7,
1984.
Criminal law — Restricted weapons — Whether RCMP
Commissioner can review Assistant Commissioner's decision
on application for Canada-wide restricted weapons carriage
permit — Commissioner's discretion under Code s. 106.2 —
Test for issuance of permit under s. 106.2(2) purely subjective
— Relevant criteria considered — Court loath to interfere
with exercise of clearly authorized discretion — Charter s. 7
inapplicable as no derogation from principles of fundamental
justice — Criminal Code, R.S.C. 1970, c. C-34, ss. 104 (as am.
by S.C. 1976-77, c. 53, s. 3), 106.1 (as added idem),
106.2(1),(2),(10) (as added idem), 106.4(2) (as added idem)
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), s. 7.
This is an appeal from a Trial Division order granting a writ
of mandamus requiring the Commissioner of the Royal
Canadian Mounted Police to issue to the respondent, under
Criminal Code subsection 106.2(1), a permit to carry a restrict
ed weapon Canada-wide while on duty as a Brinks security
inspector. The Trial Judge held that the Assistant Commission
er's decision was based on a consideration extraneous to the
Criminal Code: a provincial policy not to allow the carriage of
weapons by security personnel out of uniform. It was also held
that the Commissioner's decision upon reviewing the question
need not be considered since there is nothing in the Code
authorizing such a review.
Held, the appeal should be allowed.
The Commissioner's decision superseded that of the Assist
ant Commissioner. While there is no explicit authorization in
the Code to review a denial of a permit, the respondent's
conduct shows that he actively sought a reconsideration of that
denial. Furthermore, given the fact that there is no established
procedure for applications to carry restricted weapons, it is only
reasonable that the Assistant Commissioner could reconsider
the application or refer the request for reconsideration to the
Commissioner himself.
With respect to the extent of the Commissioner's discretion,
the words of section 106.2 make it clear that the test for the
issuance of a permit established by subsection 106.2(2) is
purely subjective: the Commissioner must satisfy himself that
the applicant requires the weapon for one of the purposes
specified. It could only be if he took into account other pur
poses, or failed to consider those specified, that a court might
consider whether he was acting outside his jurisdiction. Such is
not the case here.
Whether or not it would have come to the same judgments on
the facts, a court must not disturb the exercise of a discretion so
clearly authorized by statute.
Since there has been no derogation from the principles of
fundamental justice, section 7 of the Charter cannot be success
fully invoked.
CASE JUDICIALLY CONSIDERED
APPLIED:
Maple Lodge Farms Ltd. v. Government of Canada,
[1982] 2 S.C.R. 2.
COUNSEL:
Claude Joyal for appellants.
Mark G. Peacock for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellants.
Byers, Casgrain, Montreal, for respondent.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.: This is an appeal from an
order of Dubé J. [[1984] 1 F.C. 125], issuing a
writ of mandamus which ordered the Commission
er of the RCMP to issue a permit to the petitioner,
Roman M. Turenko, under subsection 106.2(1) [as
added by S.C. 1976-77, c. 53, s. 3] of the Criminal
Code of Canada [R.S.C. 1970, c. C-34] to carry a
restricted weapon Canada-wide while in the execu
tion of his duties as security inspector for Brinks
Canada Limited.
The learned Trial Judge held that the decision
of Assistant Commissioner A.M. Headrick of the
RCMP on February 18, 1983, denying the permit,
was based on the failure of the Ontario authorities
to recommend issuance on the grounds that Turen-
ko would carry out his duties in civilian clothes
and not in uniform; such a consideration was, in
his view, extraneous to the Criminal Code. He also
held that he did not need to consider the decision
of Commissioner R.H. Simmonds of September
15, because there are no provisions in the Criminal
Code authorizing the Commissioner to review the
decision already made by the Assistant Commis
sioner and to add other grounds to justify the
decision.
I do not find it necessary to pass judgment on
the decision of Assistant Commissioner Headrick
because in my view it was clearly superseded by
that of Commissioner Simmonds. While there is
no explicit authorization in the Code to review a
denial of a permit (as opposed to the provision in
subsection 106.4(2) [as added by S.C. 1976-77, c.
53, s. 3] for the revocation of a permit), the whole
course of conduct of Turenko shows that he active
ly sought a reconsideration of the decision of
February 18.
The Commissioner and his authorized agents
are licensing authorities and not formalized tri
bunals. Under subsection 106.2(2) there is not
even an established procedure for applications to
carry restricted weapons, as opposed for example
to the more formalized requirements of section
106.1 [as added idem] dealing with registration
certificates for restricted weapons. Presumably an
applicant could apply for a new permit the
moment after receiving notice of a denial; it would
be a splitting of hairs to impose higher standards
on a reconsideration at the request of the appli
cant. Surely the law should not so limit the flow of
life as to require it to fit a procrustean bed of
unnecessary formalities. Even the administrative
process must be subjected only to reasonable
requirements.
If, as I hold, the Assistant Commissioner, acting
as the nominee of the Commissioner, could recon
sider the application, it was also within his power
to refer the request for reconsideration to the
Commissioner himself.
The fact that two months after seeking a review
Turenko launched this motion cannot prejudice the
Commissioner's right to complete the review
launched at Turenko's request.
The relevant power of the Commissioner is
found in section 106.2 of the Code:
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;
(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.
It is not necessary for this case for me to decide
on the full extent of the Commissioner's discretion
under these subsections. The provisions of section
104 [as am. idem] with respect to the original
acquisition of firearms and those of section 106.1
with respect to the registration of restricted weap
ons provide a background for the Commissioner's
power under section 106.2, but it is unnecessary
for the present case to go beyond the words of
section 106.2 itself.
These words make it clear that the test of
issuance established by subsection 106.2(2) is a
purely subjective one: the Commissioner must sa
tisfy himself that the applicant requires the
restricted weapon for one of the purposes specified.
It could only be if the Commissioner took into
account other purposes, or failed to consider those
specified, that a court might consider whether he
was acting outside his jurisdiction.
In this case the Commissioner's decision of Sep-
tember 15 was fully set out in his letter to Turenko
of that date:
Mr. Roman M. Turenko,
c/o Brinks Canada Limitée,
190, rue Shannon,
MONTREAL (Québec),
H3C 2J3.
Dear Mr. Turenko:
This has reference to your request for the issuance of a Canada
Wide Permit to Carry, regarding which a decision was rendered
by Assistant Commissioner Headrick on February 13, 1983,
following which date the Royal Canadian Mounted Police met
with your employer who also forwarded additional documenta
tion. As you will recall, Assistant Commissioner Headrick's
decision was partly based on the existence of certain provincial
policies regarding the wearing of the uniform.
I have reviewed your application, and it is my opinion, based on
all of the information provided to date, that there are insuffi
cient grounds to justify my issuing to you a permit to allow you
to carry a concealed restricted weapon.
Your main duties are that of surveillance and the reporting of
any suspicious individuals or situations to local police authori
ties. In both these instances, I can see no requirement for the
carrying of a firearm, as you are only acting as an observer.
In the event of an armed robbery, you are not performing
functions such that you are personally exposed to violence (with
the exception of your duties regarding the transporting of
valuable items, with which I will deal later) unless you choose
to intervene. The local police agency has a legal duty to
intervene in such situations, not yourself. Should Brinks require
extra security to protect a particular shipment, they could
provide additional uniformed guards (and you may apply for a
provincial permit in these circumstances) or request police
assistance if any trouble is anticipated. If you did intervene, I
feel your actions may not only endanger your own life, but
possibly the lives of others around you. You could be mistaken
ly shot as one of the perpetrators unless you are in uniform to
clearly identify yourself to the police and to others who may
attempt to thwart the robbery.
In any event, the possible encounter of violence while carrying
out a lawful occupation is a fact with which a great number of
persons are faced daily, e.g., bank tellers, cashiers, operators of
all-night businesses, night depositors to the bank, etc. This fact
is not sufficient to warrant the issuance of a permit to carry.
One of the purposes of the gun control legislation is to prevent
the proliferation of firearms in Canada. The Criminal Code
specifies the requirements which must exist before the discre
tion to issue a permit can be exercised. There is no right, in
Canada, to carry a restricted weapon simply because of a
perceived need for protection by an individual or because that
person chooses to intervene in a violent situation.
I can also inform you that I have contacted the Chief Provin-
cial/Territorial Firearms Officers across Canada to seek their
opinion regarding the issuance of a Canada wide permit to
carry a restricted weapon while wearing civilian clothing to a
person whose duties are: security inspector assisting police
agencies in investigating robberies, being responsible for moni
toring security operations, and entering secure premises at any
time to check or assist in security operations. Of ten responses
received to date, nine objected to the issuance of a permit in
such circumstances, thereby confirming my views on the
matter.
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
provinces).
I am, therefore, declining the issuance of the requested permit.
Sincerely,
(R.H. Simmonds)
R.H. Simmonds,
Commissioner.
The Commissioner clearly holds that Turenko
did not require a permit to carry a restricted
weapon to protect life (but that his carrying such a
weapon might even emperil life) and that it was
not required for use in connection with the main
duties of his employment, which he defined as
surveillance and reporting. In other words, he
came to conclusions as to the effect of Turenko's
carrying a restricted weapon both in relation to the
protection of life and his lawful occupation, pre
cisely the kind of subjective judgments he was
authorized by subsection 106.2(2) to make.
Whether or not it would have come to the same
judgments on the facts, a court must not disturb
the exercise of a discretion so clearly authorized by
statute.
As McIntyre J. put it for the Court in Maple
Lodge Farms Ltd. v. Government of Canada,
[ 1982] 2 S.C.R. 2 at page 7:
It is ... a clearly-established rule that the courts should not
interfere with the exercise of a discretion by a statutory author
ity merely because the court might have exercised the discre
tion in a different manner had it been charged with that
responsibility ....
Parliament intended that permission to carry
restricted weapons should be difficult to obtain.
That is why in the exercise of its legislative author
ity it imposed a negative command on the issuer of
such permits: the permit must not be issued if it is
not required for specified purposes. The courts
have the responsibility to give effect to this clear
legislative policy, barring any conflict with the
requirements of the Canadian Charter of Rights
and Freedoms [being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.)].
I find the Charter arguments advanced by the
respondent do not add to his case. The successful
invocation of section 7 of the Charter depends
upon the establishing of a derogation from the
principles of fundamental justice. But the alleged
derogation here is based on Turenko's argument
with respect to the Commissioner's decision under
section 106.2. Once that contention is rejected
there is no independent issue to be met.
I would allow the appeal, set aside the order of
the Trial Division and dismiss the respondent
Turenko's application. I would grant the appel
lants their costs both in this Court and in the Trial
Division.
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.