T-619-92
Michael J. Martinoff (Applicant)
v.
Her Majesty the Queen and N. D. Inkster
(Respondents)
INDEXED AS.' MARTINOFF V. CANADA (T.D.)
Trial Division, Reed J.—Vancouver, September 3;
Toronto, September 23, 1992.
Criminal justice — Firearms — Application for mandamus
to compel issuance of retail business permit to sell restricted
weapons outside province — Criminal Code, s. 110(10) pro
viding only Commissioner of RCMP may issue permit valid
outside province — Commissioner declining to consider appli
cation because of policy all firearms business permits be
issued by provincial authorities — Whether failing to exercise
discretion — Review of case law on permits to carry, business
permits — Issuance of permit to carry under Code s. 110(1)
mandatory where conditions in s. 110(2) met — No analogy to
s. 112(4) — Decision on business permit not limited to safety
factors — Scheme of Code indicating legislative intent retail
firearms business be subject to close local control.
Judicial review — Prerogative writs — Mandamus — Appli
cation for judicial review of RCMP Commissioner's decision
not to consider application for Canada-wide permit to deal at
retail in restricted weapons — Commissioner only officer
empowered to issue extra-provincial permit — Decision explic
itly based on policy permits issued only by authorities in and
for province — Court not generally ordering decision-maker
reach specific outcome on merits — Exception where decision
not discretionary but mandatory — Whether Commissioner
obliged to issue permit in absence of safety concerns — Deci
sion on business permit, unlike decision on permit to carry, not
limited to statutory grounds — Commissioner not refusing to
exercise statutory discretion to issue extra-provincial permits
in carrying out established practice such permits not issue.
This was an application for an order in the nature of manda-
mus requiring the Commissioner of the RCMP to issue a
Canada-wide permit to deal in restricted weapons under sub
section 110(5) of the Criminal Code.
The applicant carries on a business of selling firearms at
retail in Vancouver, under a licence issued by the Chief Provin
cial Firearms Officer (CPFO) of British Columbia. He applied
to the Commissioner for a licence to deal in firearms Canada-
wide. Subsection 110(5) of the Code empowers the Commis
sioner, the provincial Attorney General and the CPFO to issue
business licences, but subsection 110(10) provides that such a
licence is not valid outside the province unless issued by the
Commissioner. That official declined to review the application
on the merits because of an invariable policy of leaving the
issuance of dealers' permits in the hands of provincial authori
ties. The applicant cites the case-law on permits to carry a
restricted weapon issued under subsection 110(1) and argues,
by analogy, that the Commissioner is without discretion to
refuse to issue the Canada-wide licence except under subsec
tion 112(4), which authorizes an officer to deny a licence for
reasons of safety.
Held, the application should be dismissed.
A court on an application for judicial review will not, in
general, order that the deciding officer make a particular deci
sion on the merits. An exception occurs where the decision is
not truly discretionary but is, rather, mandatory. Subsection
110(2) provides that a permit to carry a restricted weapon
"may" be issued only where the issuing officer is satisfied that
it is needed for one of the purposes stipulated in the subsec
tion, such as for use in a lawful occupation; and subsection
110(1) says that the carrying permit "may" be issued by the
Commissioner, provincial Attorney General, or CPFO. It has
been held that this wording designates the officials having the
responsibility to deal with the applications, but does not confer
discretion upon the specific officer to whom application is
made: once the officer is satisfied that the applicant needs the
permit for a purpose recognized by the statute, the permit must
issue. Unlike subsection 110(2), however, subsection 112(4)
does not set criteria which, if met, support the issuance of a
permit; rather, it provides grounds upon which permits may be
refused. Further, that the issuing officer may grant a licence
even if those factors do exist suggests a broad discretion. The
safety concerns mentioned in subsection 112(4) are not the
only factors the issuing officer may consider. Subsection
105(5), in providing that each location of a business shall be
deemed to be a separate business, manifests the legislative
intent that there be close local control over the retail trade in
firearms. The Commissioner did not refuse to exercise his dis
cretion to issue extra-provincial permits in carrying out the
established practice that no such permits be issued.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Criminal Code, R.S.C., 1985, c. C-46, ss. 105 (as am. by
S.C. 1991, c. 28, s. 10), 106 (as am. by R.S.C., 1985
(1st Supp.), c. 27, s. 203), 110, 111, 112(4), (8).
CASES JUDICIALLY CONSIDERED
APPLIED:
Kahlon v. Canada (Minister of Employment and Immigra
tion), [1986] 3 F.C. 386; (1986), 30 D.L.R. (4th) 157; 26
C.R.R. 152 (C.A.).
CONSIDERED:
Re Jackson et al. and Beaudry (1969), 7 D.L.R. (3d) 737;
70 W.W.R. 572 (Sask. Q.B.); Hurley v. Dawson, Court
file CA006486, Taggart J.A., judgment dated May 8,
1987, B.C.C.A., not reported, affirming Re Hurley, Court
file CC861283, Gibbs J., judgment dated August 21,
1986, B.C.S.C., not reported; Clare v. Thomson, Court
file 18913 (Prince George Registry), Perry J., judgment
dated May 6, 1991, B.C.S.C., not yet reported; Martinoff
v. Gossen, [1979] 1 F.C. 652; (1978), 46 C.C.C. (2d) 368
(T.D.).
DISTINGUISHED:
Lawrence v. Jones (1977), 36 C.C.C. (2d) 452 (Ont. Prov.
Ct.); R. v. Wilke (No. 2) (1981), 60 C.C.C. (2d) 108 (Ont.
Dist. Ct.).
APPLICATION for judicial review of a decision
refusing the issuance of a permit to deal in restricted
weapons Canada-wide. Application dismissed.
APPEARANCE:
Michael J. Martinoff on his own behalf.
COUNSEL:
P. F. Partridge for respondents.
APPLICANT ON HIS OWN BEHALF:
Michael J. Martinoff, Vancouver.
SOLICITORS:
Deputy Attorney General of Canada for respon
dents.
The following are the reasons for order rendered in
English by
REED J.: The applicant seeks an order requiring the
Commissioner of the RCMP to issue him a business
permit pursuant to subsection 110(5) of the Criminal
Code, R.S.C., 1985, c. C-46:
110... .
(5) A permit to carry on a business described in subsection
105(1) or subparagraph 105(2)(b)(i) may be issued by the
Commissioner, the Attorney General or the chief provincial
firearms officer of the province where the business is or is to
be carried on or by any person whom the Commissioner or the
Attorney General 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.
The businesses described in subsections 105(1) [as
am. by S.C. 1991, c. 28, s. 10] and 105(2)(b)(i) are
those of "manufacturing, buying or selling at whole
sale or retail, importing, repairing, modifying or talc-
ing in pawn of restricted weapons or firearms" and
"the manufacturing, buying or selling at wholesale or
retail or [the] importing of ammunition."
The applicant holds a business permit from the
Chief Provincial Firearms Officer of British Colum-
bia and carries on a business of selling firearms, at
retail, from premises in Vancouver. He wishes, how
ever, to have a business licence which allows him to
do business on a Canada-wide basis without having
to set up a physical establishment outside Vancouver.
A Canada-wide business permit can be issued only
by the Commissioner of the RCMP. Subsection
110(10) of the Criminal Code provides:
110....
(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 certif
icate 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. [Underlining added.]
The applicant applied to the Commissioner on Jan-
uary 22, 1992, seeking a Canada-wide permit for his
business and received the following reply:
I must agree that, as you pointed out, I have the authority to
issue the permit you seek. However, by virtue of subsection
110(5) of the Criminal Code, the Provincial Attorneys General
or the Chief Provincial Firearms Officers (CPFO) have the
same authority albeit within their respective jurisdictions. Sec
tion 111 of the Criminal Code provides for the establishment
of federal/provincial agreements relating to the administration
of subsection 110(5). It has been a long standing practice and,
indeed, policy, in all provinces and territories for the
CPFO/CTFO to issue business permits. I do not wish to inter
fere with the role of the CPFO/CTFO by commencing the issu
ance of business permits from my office.
Accordingly, I cannot review your application on its merits but
suggest you contact the provincial/territorial authority in the
province/territory in which you wish to do business.
The Commissioner's response to the applicant
reflects the fact that the system of issuing business
licences under subsection 110(5) which is in place,
leaves their issuance to each provincial firearms
officer and Canada-wide business permits are not
issued. The Commissioner issues Canada-wide per
mits with respect to the possession or the carrying of
restricted weapons and firearms but not with respect
to the business of selling restricted weapons or fire
arms.
The applicant requests that an order be issued
requiring the Commissioner to issue the applicant the
business permit he has requested or, alternatively,
requiring the Commissioner to consider his applica
tion for a Canada-wide business permit.
It is trite law that on an application for judicial
review, in general, a court does not have jurisdiction
to order that the deciding officer make a particular
decision with respect to the merits of the decision in
dispute. See, for example Kahlon v. Canada (Minis-
ter of Employment and Immigration), [1986] 3 F.C.
386 (C.A.) [at page 387]: "Mandamus will issue to
require performance of a duty; it cannot, however,
dictate the result to be reached."
There are, of course, some exceptions. When the
merits of the decision have, in fact, been determined
in the applicant's favour by the deciding officer and
the only challenge to the decision is that the officer
took into account an additional and extraneous con
sideration, then, a mandamus order on the merits may
be issued. Also, if the decision to be made by the
deciding officer is not, in fact, a discretionary one but
is mandatory, and if the required conditions have
been met, an order of mandamus may issue requiring
a positive disposition on the merits.
In support of the argument that this Court has
jurisdiction in the present case to issue an order
requiring the Commissioner to issue the applicant a
Canada-wide permit, the applicant cited: Re Jackson
et al. and Beaudry (1969), 7 D.L.R. (3d) 737 (Sask.
Q.B.); Hurley v. Dawson (May 8, 1987, file
CA006486, B.C.C.A. and August 21, 1986,
CC861283, B.C.S.C.); Clare v. Thomson (May 6,
1991, Prince George Registry, file 18913, B.C.S.C.).
The Jackson and Beaudry case does not assist the
applicant's argument. In that case the provisions
under which the Court was reviewing the refusal of
the business licence in question, specifically author
ized the Court upon hearing such a case to make an
order respecting the granting of a licence. The Hurley
v. Dawson and Clare v. Thomson cases will be dis
cussed infra.
The applicant argues that the Commissioner's
decision-making authority in the present case is not
discretionary. He argues that if an applicant for a bus
iness permit fulfils the conditions set out in subsec
tion 112(4) of the Code, then a permit must issue.
Subsection 112(4) provides:
112... .
(4) Any person who is authorized to issue a permit under
any of subsections 110(3) to (7) may refuse to issue such a
permit where he has notice of any matter that may render it
desirable in the interests of the safety of the applicant therefor
or any other person that such a permit should not be issued to
the applicant.
The applicant argues that it is obvious that he has ful
filled the conditions of subsection 112(4) because he
already holds a business permit to conduct a firearm
dealership in Vancouver. The requirements of subsec-
tion 112(4) must have been met before that permit
could have been issued.
The argument that the Commissioner has no dis
cretion to refuse a permit if the requirements of sub
section 112(4) are met is based on the jurisprudence
which has developed with respect to subsections
110(1) and 110(2) of the Code:
110. (1) A permit authorizing a person to have in his posses
sion a restricted weapon elsewhere than at the place at which
he is otherwise entitled to possess it, as indicated on the regis
tration 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 occu
pation;
(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. [Underlining added.]
It has been held with respect to these provisions
that the direction in subsection 110(1) that a permit
"may be issued by the Commissioner, the Attorney
General of a province, [or] a chief provincial firearms
officer ... " does not grant whichever of those indi
viduals is issuing the permit any discretion with
respect to the merits of the permit application. It has
been held that "may" in that context only designates
those persons who are authorized to issue a carry per
mit. See, for example, Hurley v. Dawson (August 21,
1986) CC861283 (Vancouver Registry), B.C.S.C.,
affirmed (May 8, 1987) CA006486, B.C.C.A.
In addition, it has been held that when an applica
tion for a carrying permit is being considered by one
of the three individuals, the Commissioner, the Attor-
ney General or the chief provincial firearms officer,
that individual has no discretion to refuse to issue a
permit once he is satisfied that the applicant requires
it for one of the purposes set out in subsection
110(2): to protect life; for use in connection with his
lawful profession or occupation; for use in target
practice .... It has been held that the wording "a
permit ... may be issued only where the person
authorized to issue it is satisfied that the applicant
requires it for ... " does not accord the issuing
officer discretion to consider any factors other than
those which are relevant to the purposes set out in
subsection 110(2).
It must be admitted that this is not an obvious way
of reading subsection 110(2). On initially reading the
section, one would think that the word "only" indi
cates that while the issuing officer must be satisfied
that one of the conditions which are subsequently
listed in paragraphs (a) to (d) must be met before a
permit is issued, this does not mean that other factors
might not also be taken into account by the issuing
officer.
_ In any event, in Martinoff y. Gossen, [1979] 1 F.C.
652 (T.D.), at page 660, it was said, by way of dicta,
that:
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)
[now s. 110(2)1, then, as I see it, the Commissioner has a com-
pellable duty to issue one.
This reasoning was adopted in the Hurley v. Daw-
son case, supra. In that case, the plaintiff was a Loo-
mis guard who was required to carry a restricted
weapon for the purposes of his job. He was refused a
permit on the ground that he had been convicted of a
criminal offence (cultivating marijuana). The Court
held that this was an extraneous consideration which
the respondent had no authority to consider when
deciding whether or not to issue a permit. A year
prior to the criminal conviction, the plaintiff had held
a permit and that permit was not cancelled immedi
ately on his conviction for the criminal offence. It
was only on a renewal application that the conviction
was used as a reason for denying him a permit.
Mr. Justice Gibbs in Hurley v. Dawson adopted the
comments, with respect to subsection 110(2), quoted
above from Martinoff v. Gossen, and explained the
reasoning for not finding any additional discretion
under subsection 110(1) as follows:
... Counsel for the respondents made the submission that
such an interpretation is illogical for it would lead to the
remarkable result that "a known 'hit man' for organized crime
would automatically get a carrying permit so long as he could
show that it was required for the protection of his life". That
apprehension is unfounded. It would only follow if the known
"hit man" succeeded in by-passing all of the other elaborate
safeguards in Part II.I of the Code.
The permit referred to in s. 106.2(1) [now s. 110(1)] only
authorized the permit holder "to have in his possession a
restricted weapon elsewhere than at a place at which he is oth
erwise entitled to possess it, as indicated on the registration
certificate issued in respect thereof'. Holding a registration
certificate is, therefore, a condition precedent to an application
under s. 106.2(1) [now s. 110(1)]. The authority to issue a
registration certificate for a restricted weapon is contained in s.
106.1 [now s. 109]. It is a condition precedent to an application
for a registration certificate that the applicant be the holder of a
firearms acquisition certificate and be 18 years old or older.
The applicant must show that he requires the restricted firearm
for esentially [sic] the same purposes as are listed under s.
106.2(2) [now s. 110(2)]. And, under subsection (6) [now s.
109(6)], the local registrar of firearms is required to report
"any matter that makes it desirable in the interests of the safety
of the applicant or any other person that the applicant should
not possess a restricted weapon". But the most elaborate safe
guards against the "hit man" are in s. 104 [now s. 106], the
firearms acquisition certificate section.
The pattern of control is evident. It begins with the applica
tion for a firearms acquisition certificate under s. 104 [now s.
106]. An applicant must meet stringent tests and wide discre
tion is vested in the issuing officer. If the s. 104 [now s. 106]
hurdles are overcome, there are further tests and discretionary
powers when application is made for a registration certificate
for a restricted weapon under s. 106.1 [now s. 109]. Having
met all of those requirements the intent of parliament appears
to have been that the issue of a permit to carry a restricted
weapon would be then a purely administrative act, if the appli
cant satisfied the issuing officer that he required the restricted
weapon for one of the purposes specified in s. 106.2(2) [now s.
110(2)].
If that understanding of the pattern is correct, the word
"may" in s. 106.2(1) [now s. 110(1)] must have been intended
by parliament to be merely designator of the identity of those
persons authorized to issue carrying permits.
The British Columbia Court of Appeal adopted this
reasoning not only with respect to subsection 110(1)
but also subsection 110(2). The reasoning has also
been applied in Clare v. Thomson, supra. Thus, in the
case of subsections 110(1) and 110(2), there is signif
icant authority which states that if the issuing officer
is satisfied that an applicant for a permit comes
within one of the criteria set out in subsection 110(2),
that is, requires a weapon "to protect life, or for use
in connection with a lawful occupation, or for use in
target practice ...", then, the issuing officer, must
issue the permit.
Similarly the applicant argues that in the case of an
application for a permit to conduct a retail business
selling firearms, if the applicant satisfies the condi
tions of subsection 112(4) the permit must be issued.
For ease of reference subsections 110(5) and 112(4)
will be set out again here:
110....
(5) A permit to carry on a business described in subsection
105(1) or subparagraph 105(2)(6)(i) may be issued by the
Commissioner, the Attorney General or the chief provincial
firearms officer of the province where the business is or is to
be carried on or by any person whom the Commissioner or the
Attorney General 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 b< issued,
unless it is sooner revoked.
112....
(4) Any person who is authorized to issue a permit under
any of subsections 110(3) to (7) may refuse to issue such a
permit where he has notice of any matter that may render it
desirable in the interests of the safety of the applicant therefor
or any other person that such a permit should not be issued to
the applicant.
Subsection 110(5) authorizes the Commissioner, the
Attorney General of the province or the chief provin
cial firearms officer to issue a permit. The applicant
argues that, in accordance with the Hurley v. Dawson
decision, the "may" in subsection 110(5) does no
more than identify the three possible individuals who
may issue a business permit. It does not carve out an
area of discretion (residual discretion) additional to
any that which may exist elsewhere in the Code con
cerning the criteria which are to be considered in
determining the merits of the application.
The applicable criteria, he argues, are found in
subsection 112(4). By analogy to the interpretation
which has been given to subsection 110(2), he argues
that the issuing officer has no discretion to refuse an
applicant a permit unless he determines that that
applicant does not meet the conditions of subsection
112(4), that is, that there are no reasons relating to
either the applicant's safety or that of another which
should lead to the denial of a permit. As has been
noted it is clear that there are no "safety related" rea
sons to refuse him a permit to conduct business
within the province. He already holds a permit for
that purpose.
Counsel for the respondent argues that there is a
difference between the statutory scheme set out in
subsection 110(1) and (2) and subsection 110(5) and
112(4). In the first place, permits under subsection
110(1) are "carry" permits and an applicant for such
will already have met the requirements for the acqui
sition and registration of a weapon (and the stringent
tests required). This was discussed, as noted above, in
the Hurley v. Dawson case. Secondly, the textual
structure of the paired subsections is different. In the
case of subsection 110(1) and (2) there is a direct
linkage which, it is argued, may give rise to a "right"
to have a permit issued if one of the criteria in
paragraphs (a) to (d) of subsection 110(2) are met. In
the case of 110(5) and 112(4), however, there is no
such close linkage. Subsection 112(4) relates to all
the subsections 110(3) to 110(7) and not merely one
provision. Also, it sets out a condition in which per
mits may not be granted. It does not establish positive
criteria which, if met, might lead to the conclusion
that a permit must be issued.
If the applicant's interpretation is right all individ
uals who apply for a business permit must be granted
one unless they can be refused on the ground that the
denial of a permit to them is justified on grounds of
safety: there is no authority to take any other consid
eration into account. It is admitted that "safety of the
applicant ... or any other person" is a broad concept
and would encompass many of the factors which are
required to be met in obtaining acquisition and regis
tration permits.
The nub of the issue then is whether the Commis
sioner can refuse to consider an application for a
Canada-wide business permit because authority is
being exercised by the provincial firearms officer and
as a policy matter it has been decided not to issue
Canada-wide business permits.
Counsel for the respondent argues that when one
of three possible decision makers refuses to entertain
an application because one of the others is doing the
job, the refusal is proper and cannot be attacked as a
failure to exercise jurisdiction. I have difficulty with
that argument. I might find it persuasive if the pro
vincial firearms officer could issue Canada-wide per
mits. In such a case one might be reluctant to enter
tain an application for judicial review against the
Commissioner. But in this case the provincial fire
arms officer cannot issue the kind of permit the appli
cant wishes (a Canada-wide permit). Thus the fact
that the provincial firearms officer can issue permits
to do business in the province is no answer.
I am not convinced however that I should read sub
sections 110(5) and 112(4) as the applicant contends.
In the first place, subsection 112(4) does not set up
criteria which if met require a permit to be issued.
Indeed it seems clear that even if the issuing officer
has notice of factors that render "it desirable in the
interests of safety ... that a permit should not be
issued", a permit may still be issued. That is, under
the terms of subsection 112(4) the issuing officer is
not required to refuse a permit when he has notice of
such factors. This underlines the breadth of discretion
given to the issuing officer.
There are two decisions which seem to indicate
that the issuing officer must issue a business permit if
safety concerns are met. In Lawrence v. Jones (1977),
36 C.C.C. (2d) 452 (Ont. Prov. Ct.), the court was
dealing with a refusal of a provincial firearms officer
to issue a business permit [at pages 457-4581:
The conditions governing the issuance of permits are not as
clearly laid down as they might be. Those concerned with per
mits which allow the possession of restricted weapons are
spelled out in s. 97(1)(a) and s-s. (5), (6) and (9); not so, how
ever, those concerned with permits which allow the carrying
on of a business which includes the selling of restricted weap
ons at retail. The only conditions governing the issuance of
permits for that purpose are to be found in s. 99(3) [now s.
112(4)1. The issuer may, not must, refuse to issue such a permit
"where he has notice of any matter that may render it desirable
in the interests of the safety of other persons that such a permit
should not be issued to the applicant". Section 99 (s-s. 5 to 11)
provides for the manner in which a decision not to issue a per
mit is to be communicated to the applicant, and the manner in
which a person "aggrieved" by such refusal can appeal there
from.
Generally speaking, licensing legislation should expressly
state all powers related to the granting and refusing of licences.
It is important that the standard be clear and that the legislation
should clearly express the purpose and policy sought to be
implemented by the legislation. The legislation here does not
meet this test insofar as the criteria for granting or refusing a
licence are concerned.
The Court went on to reiterate that the provisions
in the Code with respect to the carrying on of a retail
business for the sale of firearms were concerned with
safety. The Court stated that it did not see how fac
tors such as the carrying on of the business part-time,
or that the applicant lived in Metropolitan Toronto
while the business would be located in Lindsay
related to safety. The Court found that the issuing
officer's main reason for refusing a permit was the
"floodgates argument"—the fact that many other per
sons who like the applicant collected guns would
seek a business permit. The Court was not persuaded
that this related to safety. The Court continued [at
page 4611:
Nothing in the evidence appears to me to meet the sole crite
rion of "the safety of other persons" which is the only policy
guideline set down in the statute. The Attorney-General's
guidelines have no statutory or other authority and I reject
them as criteria to be considered by me or which should have
been considered by Mr. Jones. It may be that in a very general
sense, the safety of the entire population is affected by permit
ting even one person, let alone even one more person sell
restricted weapons, but I do not think s. 99(3) can be so widely
interpreted—to do so would leave Mr. Jones such an unfettered
discretion as would undoubtedly be improper, for he could
without any reason whatsoever and at his sole whim determine
who should or should not have permits of this type.
It is common ground that Mr. Lawrence meets all personal
tests of integrity and that his proposed business premises meet
all reasonable security requirements. These are factors affect
ing the "safety of other persons" and the appellant has met
them in such a way as does not affect such safety adversely.
I, therefore, allow the appeal and direct that a permit be
issued to the applicant to carry on at 12 Russell St. West, in
Lindsay, Ontario, a business that includes the selling of
restricted weapons at retail.
I cannot leave this matter, however, without expressing
regret that Parliament has not seen fit to define with clarity the
criteria which should govern the issuance of such permits. In
my opinion, the law regarding what is commonly called "gun
control" is not clear.
In R. v. Wilke (No. 2) (1981), 60 C.C.C. (2d) 108
(Ont. Dist. Ct.), the decision of a provincial court
judge which ordered the issuance of a business per
mit was under appeal. In the context of that appeal it
was said [at pages 116-1171:
Curiously, there is no criteria set out in the Code to guide the
chief provincial firearms officer in issuing the [business] per
mit or the Court in deciding whether or not his decision is
proper.
Section 104(3) [now s. 106] does set out certain criteria
guiding a Magistrate on a hearing from a refusal of a firearms
officer to issue a firearms acquisition certificate. He is entitled
to confirm the opinion of the firearms officer that it is not
desirable in the interests of the safety of the applicant or any
other person that the applicant should acquire a firearm where
it is made to appear that the applicant:
(1) has been convicted within five years immediately pre
ceding the date of his application in proceedings on
indictment of an offence involving the commission of
violence against another person or an offence under Part
IL1 of the Code;
(2) where within five years immediately preceding the date
of the application the applicant has been treated for
mental disorder associated with violence or threatened
violence against himself or anyone else; or,
(3) has a history of behaviour within five years immediately
preceding the date of the application involving violence
against himself or any other person.
Although such criteria are not enumerated as guidelines for
determining whether a business permit should be issued, I am
nevertheless of the view that they serve as some of the factors
which should be taken into account in determining whether a
business permit should be issued. The intent and purpose of
the legislation appears to be directed towards ensuring that
people involved in the possession and sale of restricted weap
ons exercise a standard of responsible behaviour which will
guarantee that they will be safely stored and handled and that
they will not fall into the hands of the criminal element in this
society either by sale or negligence. That criteria must be
applied not only to the applicant but to anyone else who might
be associated in the business with the applicant even as an
employee.
The Court in that case held that the decision of the
provincial court judge in ordering the issuance of a
licence, even though the husband of the applicant for
the licence had a criminal record, was not in error.
The criminal record of the husband did not involve
sales to criminals or indiscriminate sales and the
police were satisfied that the applicant's storage facil
ities were adequate.
Both the Lawrence and the Wilke cases deal with
appeals from decisions of provincial firearms officers
in which applications for business permits had been
refused. Such decisions are appealable to the courts
pursuant to subsection 112(8) of the Criminal Code.
In the present case, since the attack is on the Com
missioner's failure to make a decision on the merits
(exercise his jurisdiction), the application was
brought before me seeking mandamus to either
require the issuance of a permit or at least to require
that the Commissioner exercise his jurisdiction and
consider the application on the merits.
The distinction between whether the Commis
sioner, in this case, refused to exercise his jurisdic
tion (if he did) or made a decision within that juris
diction but by reference to an extraneous
consideration (if he did) are of course two ways of
framing the same issue. If the Commissioner in refus
ing to issue the permit was entitled to take into con
sideration the policy that no Canada-wide permits
were to be issued, then, one can argue that he did
make a decision on the merits but within his jurisdic
tion. If on the other hand his discretion is not wide
enough to encompass a rejection of an application for
a permit on that ground, then, it is appropriate to
argue that he refused to exercise his jurisdiction.
In any event, I am not convinced that the Commis
sioner made a decision in this case that exceeded his
jurisdiction or that he refused to exercise jurisdiction.
As has been noted in the decisions cited, there are
practically no explicit criteria set out, according to
which a permit should or should not be issued. Safety
of the applicant and of others is undoubtedly one con
sideration but it is not determinative under the statu
tory provisions.
Whether or not subsection 110(5) could be struck
down for being too vague, either on constitutional
grounds or on the basis of the common law principles
which pre-existed the Charter, has not been argued.
Indeed if the provision cannot stand because of the
lack of sufficient criteria contained therein, that is
because an arbitrary and completely unbridled deci-
sionmaking power is conferred on the issuing officer,
then the applicant is in no better position than he is at
present. It would still be a criminal offence to carry
on a retail business selling firearms in question with
out a permit but there would be no mechanism pro
viding for the issuance of such permits.
To return to the decision taken by the Commis
sioner in this case. I am not convinced that the Com
missioner in making the decision he did either
refused to exercise or exceeded his jurisdiction. In the
first case it is abundantly clear that considerations of
safety are not the only factors which an issuing
officer may consider. I must add, with respect to the
Lawrence decision that I am not at all clear why
many of the considerations referred to in that case are
not relevant to the issuance of a business licence.
More importantly, however, it is clear from the juris
prudence that in the absence of explicit criteria being
set out, a decisionmaker is entitled to find guidance
in other provisions of the Code. The courts looked to
other provisions of the Code, for example, in Hurley
v. Dawson. Consideration was given to the criteria
required to be met to obtain acquisition and registra
tion permits. In the Wilke case reference was again
made to those provisions.
Similarly in this case I think it is relevant to refer
to subsection 105(5). Subsection 105(5) provides:
105....
(5) Where a person carries on a business described in sub
section (1) or subparagraph 2(b)(i) at more than one location,
each location shall be deemed for the purposes of this section
and regulations made pursuant to paragraphs 116(a) to (c) to
be a separate business.
In my view this articulates a legislative policy
which contemplates a close local control on busi
nesses engaged in the retail sale of firearms. Subsec
tion 105(6) provides for the regulation of mail order
business. Subsection 105(1) provides for the record
keeping and inventory control. Section 111 provides
for reimbursement to provincial governments for
expenses incurred in administering sections 105, 106
[as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 203] and
110(5).
I am of the view that the Commissioner did not
refuse to exercise his jurisdiction or take into account
an irrelevant factor in deciding not to issue the appli
cant a Canada-wide business permit when he decided
not to issue the applicant a Canada-wide permit
because the system of control which had been
adopted in practice did not contemplate the issuing of
such permits.
I should note as well that even if I am wrong in the
above conclusion, I could not agree that it would be
appropriate to issue a mandamus order requiring the
granting of a permit to the applicant. The fact that the
applicant has met the safety standards required for a
provincial licence does not mean that those same
safety standards would be applicable in the case of a
Canada-wide permit.
For the reasons given this application will be dis
missed.
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.