Date: 20000901
Docket: T-908-98
BETWEEN:
BARRY PAUL HOLLAND
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This application for judicial review concerns a decision made March 24, 1998 by the Commissioner of the Royal Canadian Mounted Police refusing an application made by Mr. Holland, the applicant, for a registration permit to carry a restricted weapon, under subsections 110(1) and (2) of the Criminal Code1 of Canada. The applicant seeks an Order setting aside that decision and an Order in the nature of mandamus directing that the permit be issued to Mr. Holland.
[2] After this application was filed by Mr. Holland, section 110 of the Criminal Code, under which his application was made, was repealed and replaced by provisions of a new Firearms Act.2 Under that Act, the Commissioner of the R.C.M.P. is no longer the statutory decision-maker. That role has been assigned to a new Chief Firearms Officer, as defined under that Act.
[3] I note for the record that in written submissions the applicant raised a constitutional challenge to the Criminal Code provisions, but prior to the hearing, this issue was withdrawn by the applicant, as counsel acknowledged when this matter was heard. Thus, I do not consider the constitutional question originally raised.
[4] The applicant, Mr. Holland has been retained as a security consultant for the Morgentaler Clinic in Edmonton, following threats received by the clinic. The applicant appears to be well qualified for the protective duties he provides to the clinic. For a time, Mr. Holland was a member of the Canadian Forces elite anti-terrorist unit. Before becoming a member of that unit, he was a member of the Military Police and he had been involved in protecting dignitaries. From the record, there does not appear to have been any expressed reservations about Mr. Holland"s personal or professional qualifications for the permit sought.
[5] In the course of his employment by the Morgentaler Clinic in Edmonton, the applicant acquired a number of threatening letters sent to the clinic. Copies were forwarded with his application and he also described an incident where he discovered an individual who was following a member of the clinic"s staff. The police apprehended the individual and recovered a handgun.
Issues
[6] When this matter came on for hearing, two principal issues were argued. These were, whether in view of the statutory change this application was now moot, and if it were not, whether the Commissioner had erred in his decision in a manner warranting intervention of the Court. I note that in addition to submissions made when this application was heard, written submissions were subsequently filed by the applicant in June 2000 and by the respondent in July 2000.
Mootness
[7] The respondent argues that the Court should not grant a discretionary remedy to the applicant in a situation where the legislation under which the decision in question was made has been repealed and replaced. The respondent urged that even if the application were allowed, it would not be appropriate to refer the matter back to the Commissioner who no longer has any authority to issue permits to carry a restricted weapon. It is urged also that, in effect, the matter is now moot for had the applicant obtained his permit in March 1998, as sought, it would only have been valid for one year. After that year, he would have had to make an application under the new Firearms Act.3
[8] The applicant argues that under the Interpretation Act,4 the repeal of the relevant provisions of the Criminal Code does not affect his rights as those arise in regard to his application for a permit to carry. In particular, reliance is placed upon section 43 of the Interpretation Act, which reads, in part.:
| 43. Where an enactment is repealed in whole or in part, the repeal does not
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43. L'abrogation, en tout ou en partie, n'a pas pour conséquence:
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| (c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed, |
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| c) de porter atteinte aux droits ou avantages acquis, aux obligations contractées ou aux responsabilités encourues sous le régime du texte abrogé; |
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| (e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d), |
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| e) d'influer sur les enquêtes, procédures judiciaires ou recours relatifs aux droits, obligations, avantages, responsabilités ou sanctions mentionnés aux alinéas c) et d). |
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| and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.
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Les enquêtes, procédures ou recours visés à l'alinéa e) peuvent être engagés et se poursuivre, et les sanctions infligées, comme si le texte n'avait pas été abrogé.
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[9] For Mr. Holland, counsel urges that the issue here raised is not moot, that he has a right to have his application considered in accord with the legislation applicable at the time of his application. Reliance is placed upon Abell v. Commissioner of the R.C.M.P.5, concerning an application completed under earlier legislation providing for the registration of firearms, which was amended before registration applied for was completed and thereafter the weapon in question was prohibited, and not subject to registration. There the Saskatchewan Court of Appeal upheld the right of the applicant to the permit applied for under the legislation applicable at the time of her application, that right being recognized where, under the applicable legislation, the Commissioner had a duty to register the firearm and the applicant had done all that she could do to meet the statutory requirements before the legislation was amended. In that case the legislation in question, section 98 of the Criminal Code as it applied prior to January 1, 1978, provided that "upon receiving an endorsed application for a registration certificate the Commissioner shall, subject to section 99, register the restricted weapon described in the application...".
[10] In my opinion, the applicable legislation as it was when Mr. Holland applied for a permit to carry, subsection 110(1), imposes no duty upon the Commissioner other than to exercise the discretion vested in him by that provision, which reads in part:
| 110. (1) A permit that authorizes a person to possess a particular restricted weapon ... elsewhere than at the place at which the person is otherwise entitled to possess it, as indicated on the registration certificate issued in respect thereof, may be issued by the Commissioner ....
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110. (1) Le commissaire ... peuvent délivrer un permis autorisant une personne ... à avoir en sa possession une arme à autorisation restreinte en particulier en un lieu autre que celui où, en vertu du certificat délivré pour cette arme, elle est en droit de la posséder ....
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| (2) A permit described in subsection (1) may be issued only where the person authorized to issue it is satisfied that the applicant therefore requires the restricted weapon to which the application relates
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(2) Le permis visé au paragraphe (1) ne peut être délivré que lorsque la personne autorisée à le faire est convaincue que celui qui le sollicite requiert l"arme à autorisation restreinte visée par le demande pour l"une ou l"autre des raisons suivantes:
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| a) pour protéger des vies; |
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| (b) for use in connection with his lawful profession or occupation; |
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| b) pour son travail ou occupation légitime; |
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[11] That wording is comparable to the wording used in a predecessor of subsections 110(1) and (2), i.e. subsections 106.2(1) and (2) as they applied at the relevant time, about which Mr. Justice MacGuigan said in Commissioner of the R.C.M.P. v. Turenko,6 in part:
| These words make it clear that the test of issuance established by subsection 106.2(2) [similar to its successor, s-s. 110(2)] is a purely subjective one: the Commissioner must satisfy himself that the applicant requires the restricted weapon for one of the purposes specified .... |
| Parliament intended that permission to carry restricted weapons should be difficult to obtain. That is why in the exercise of its legislative authority 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.... |
[12] In my view, Abell is not authority for recognition of any right to the permit applied for by Mr. Holland, but it is authority for recognition of his right to have his application considered under the statutory provisions applicable at the date of his application. That right was recognized and a decision was made by the Commissioner in regard to Mr. Holland"s application. That decision is the one in question in this proceeding.
[13] If this Court were to determine that the impugned decision of the Commissioner was in error warranting that it be set aside, difficulties concerning appropriate relief arising from amendments to the applicable legislation ought not to be insurmountable.
[14] In this regard the applicant argues in supplementary submissions, received in June 2000, that section 43 of the Interpretation Act and section 129 of the Firearms Act are consistent with continuing jurisdiction of the Commissioner to issue a permit to carry. I am not persuaded that this is the case. Under the latter Act, section 129, a transition provision, provides in part:
| 129. (1) A permit authorizing a person to possess a particular prohibited firearm or restricted firearm is deemed to be an authorization to carry or authorization to transport if it
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129. (1) Le permis autorisant une personne à posséder une arme à feu prohibée ou une arme à feu à autorisation restreinte en particulier est réputé une autorisation de port ou de transport s'il:
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| (a) was
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a) a été:
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| (i) issued under subsection 110(1) of the former Act, or |
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| (i) soit délivré en application du paragraphe 110(1) de la loi antérieure, |
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| (b) had not been revoked before the commencement day; and
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b) n'a pas été révoqué avant la date de référence;
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| (c) remained in force pursuant to subsection 110(1) of the former Act on the commencement day.
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c) était valide à la date de référence conformément au paragraphe 110(1) de la loi antérieure.
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[15] In my opinion, subsection 129(1) does nothing more than recognize as valid under the Firearms Act a permit to carry issued before that Act. By itself, or in combination with section 43 of the Interpretation Act, section 129 does not extend the authority of the Commissioner to issue a permit to carry after the Firearms Act, which repealed that authority, came into force.
[16] To sum up my opinion in regard to the application of the doctrine of mootness in the circumstances of this case. The issue before me, whether the decision made by the Commissioner in March 1998 is moot, is not dependent upon the particular relief that may be available if the application were allowed. The permit applied for continues to be provided for under the amending legislation, albeit by a different procedure including consideration by a different decision-maker. In those circumstances, if the Court were to find that the impugned decision ought to be set aside, the Court would direct appropriate procedures for reconsideration of Mr. Holland"s application.
[17] I turn to the merits of the applicant"s case for an Order to set aside the Commissioner"s decision. The applicant urges the decision be quashed on grounds that the Commissioner fettered his discretion, or that the decision was based upon an error of fact, or that the applicant was denied procedural fairness when he was not offered an oral hearing as he had requested.
Fettering of discretion
[18] It is the applicant"s position that the Commissioner of the R.C.M.P. fettered his discretion by adopting a policy that permits to carry would rarely be issued. It is further submitted by the applicant that the Commissioner"s discretion was fettered by his deferring to the positions taken by the firearms unit of the Edmonton Police Service and the Chief Provincial Firearms Officer.
[19] The perception that a policy of the Commissioner would only rarely result in issue of a permit appears to arise from correspondence exchanged between Mr. Holland and the Commissioner before the impugned decision was made. In the course of that exchange, in a letter of January 16, 1998 the Commissioner wrote, inter alia:
| Any decision made by the Commissioner of the RCMP, or his authorized agents, is based on the criteria specified in section 110 of the Criminal Code. However, as head of the RCMP, I must necessarily delegate duties in order to effectively perform my overall functions. It is in this capacity that the Canadian Firearms Registry (formerly the Firearms Registration and Administration Section) assists me in the decision-making process relating to the issuance of inter-provincial permits to carry a restricted weapon for protection of life. |
| As the Solicitor General indicated to you in his letter dated November 13, 1997, I would like to reiterate that in order to consider your application, a complete threat assessment report and recommendation for issuance are required. In my capacity as Commissioner of the RCMP, responsible for the decision regarding your application to obtain an inter-provincial permit to carry a restricted weapon for protection of life, the first and foremost information I need is a full threat assessment concerning your situation. Consequently, you are required to address yourself to the local Chief Firearms Officers (CFOs) in the provinces in which you intend to work. The CFOs are the best placed geographically to undertake this threat assessment and afterwards transmit it to me for proper evaluation in relation to your application. In addition, it is also important that I and my agents be made aware of provincial policy that exists in the interests of the safety of the individual applicant or any other person. |
[20] It is to be noted that the applicant did not at any time submit the documentation requested by the Commissioner, i.e., a complete threat assessment and recommendations from Firearms Officers of the provinces in which he wished to carry a firearm.
[21] The letter of the Commissioner, dated March 24, 1998, refusing Mr. Holland"s application, which had sought a permit valid across Canada, read, in part:
| As was previously indicated to you, any decision made concerning the issuance of a Permit to Carry a concealed, restricted weapon is based on the following criteria: the applicant requires the permit to carry a restricted weapon to protect life (see section 110(2)(a) of the Criminal Code); and the police of jurisdiction is unable to provide the necessary protection. |
| In order to properly assess your application and to determine whether or not it meets the aforementioned criteria, Corporal Gerry Offin, of the Royal Canadian Mounted Police"s Criminal Operations in "K" Division, was asked to prepare a detailed report containing a chronological summary of the events and application process; a report resulting from a meeting that took place on March 5, 1998, between Corporal Offin and Detective Mike Cook of the Edmonton Police Service West Division Office, the primary investigator on the Morgentaler Clinic file; an evaluation of the local police"s ability to handle the situation; the provincial policy with respect to the issuance of such permits. |
| After having consulted with the Edmonton Police Service, Corporal Offin concluded that the local police authorities have the ability to ensure protection in this case and have had little difficulty in doing so. In addition, the Morgentaler Clinic has been granted a permanent injunction, which was issued by the Court of Queen"s Bench Judicial District of Edmonton, in 1992, and which is enforced by the Edmonton Police Service. |
| Regarding the inter-provincial aspect of your application to carry a restricted weapon for the protection of life, at this time, there is no justification for the issuance of such a permit. The factual basis to support your application relates to the Province of Alberta, in particular the City of Edmonton. The grounds that you invoke to support the issuance of an inter-provincial permit, that is, the possibility that you may be employed in other provinces to protect the Morgentaler Clinics, is hypothetical at this time and can only be assessed on a case by case basis. |
| I have reviewed your application and, based on all the information provided to me to date, there are insufficient grounds that would justify my issuing a permit to allow you to carry a concealed, restricted weapon. I am, therefore, declining the issuance of the requested permit. |
[22] It is my opinion that the Commissioner did not fetter his discretion in arriving at his decision. Subsections 110(1) and (2) vest broad discretion in the Commissioner. Subsection 110(1) is permissively worded, using the word "may" instead of the obligatory "shall", and issuance of a permit under subsection 110(2) requires a subjective evaluation by the decision maker, i.e., if the Commissioner "is satisfied that the applicant ... requires the restricted weapon to which the application relates (a) to protect life ...", as noted by MacGuigan J.A. in Turenko .7 Moreover, as His Lordship there noted in relation to the predecessor but similar provision, the Courts must be aware of Parliament"s intent to limit the issuance of permits to carry restricted weapons.
[23] In light of the legislative purpose and the broad grant of discretion, the Court will only interfere in limited circumstances, where it is clear that the statutory considerations have been ignored, or others have been given undue weight, or there is serious procedural unfairness. In this case, the record discloses that the Commissioner consulted with a number of parties and relied on particular members of the R.C.M.P. to provide him with information in relation to the application. In my view, this is not fettering discretion as long as the final decision rested with the statutory decision-maker. The Commissioner of the R.C.M.P. has a broad range of responsibilities. It is reasonable for him to enlist the assistance of members of the Force to assist in discharge of those responsibilities. In my opinion in the circumstances of this case, that includes asking for a preliminary review of the application in this case, including information on the opinions of civic and provincial officers concerning the threat to life alleged and the issuance of a permit to carry a concealed weapon. Reference by the Commissioner to the information thus provided does not constitute fettering his discretion in making his conclusion, and it did not result in unlawful delegation of his decision. I note again the applicant did not submit evidence requested by the Commissioner before his decision.
Alleged errors of fact
[24] The applicant argues that the Commissioner made a reversible error of fact in his decision. In particular, it is said that the conclusion that the Edmonton Police could "ensure protection" is in error, and further, that the Commissioner did not acknowledge the threat posed to the Morgentaler Clinic and its staff. It is my opinion that neither of these allegations present reversible errors. For the first alleged error, the evidence pointed to by the applicant is a letter dated August 12, 1998, after the Commissioner made his decision. Based on the record that was actually before the Commissioner, there was information before him that supports his conclusion and subsequent information does not undermine the validity of the decision then arrived at.
[25] The second alleged error, in my view, is not an error of fact, per se. The record shows that information provided by the applicant regarding threats to the clinic was before the decision-maker and there is no reason to conclude that it was ignored. In my opinion, it is implicit in the decision of the Commissioner that he was aware there was a threat to the Clinic. The Commissioner was not obliged to describe the level of threat faced by the Clinic as he saw that, and I do not find that the Commissioner erred by not doing so.
Oral Representations
[26] The applicant argues that the Commissioner erred in failing to provide the applicant with an opportunity to make oral submissions. The applicant, in his written argument, acknowledges that he did not have a statutory right to an oral hearing, but also argued that one should have been provided, as he requested, given the serious and complex nature of the application.
[27] The issue is whether, by denying the applicant an opportunity to make oral submissions, the applicant was denied a meaningful opportunity to "make his case" for the issuance of the permit.8 The record shows that his application was quite substantial. There was correspondence exchanged between the applicant and the Solicitor General, the Commissioner, and the provincial Firearms Officer. In my opinion, in these circumstances he was not denied the opportunity to set forth his justification for the permit sought. I am not persuaded that the Commissioner erred in law or that he denied procedural fairness to Mr. Holland by denying an opportunity for an oral hearing in regard to his application.
Conclusion
[28] I conclude that the decision of the Commissioner should not be set aside. The Commissioner concludes, in his letter quoted above, that there is "no justification" for the issuance of an inter-provincial carry permit. The grounds put forward by Mr. Holland for a permit to carry a restricted weapon in provinces other than Alberta, the Commissioner concluded, were "hypothetical". Under the scheme set out under the former provisions of the Criminal Code then applicable, the Commissioner of the R.C.M.P. was the issuing authority for inter-provincial carry permits. Permits not issued by the Commissioner were only valid in the province in which they were issued.9 It is apparent in the decision that the Commissioner concluded that, at the time of the application, Mr. Holland"s application did not justify the issuance of an inter-provincial permit to carry. In my view, this conclusion supports the decision to decline the application in so far as it related to permission to carry a restricted weapon, permission which, in the ordinary course, was issued by the Firearms Officer of the province concerned.
[29] In conclusion, it is my opinion that the decision of the Commissioner of the R.C.M.P., denying Mr. Holland"s application for a permit to carry a concealed, restricted weapon, should not be set aside. An Order dismissing this application for judicial review now issues with these reasons.
[30] The respondent asked for costs and the Order now issued allows that request on the regular party and party basis.
(signed) W. Andrew MacKay
OTTAWA, Ontario
September 1, 2000
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1 R.S.C. 1985, c. C-46 as amended.
2 S.C. 1995, c. 39, in particular s. 20, proclaimed in force, Dec. 1, 1998, SI/98-93, 95.
3 S.C. 1995, c. 39.
4R.S.C. 1985, c. I-21.
5 (1979), 49 C.C.C. (2d) 193 (Sask. C.A.).
6 [1985] 1 F.C. 669 at 673, 675 (C.A.).
7 Supra, note 6 at 675.
8 See Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at 842, para. 30.
9 See Criminal Code , s-s. 110(10), as it applied in March 1998.
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