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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The Commissioner's decision superseded that of the Assist ant Commissioner.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.
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