T-85-76
Robert A. Walker (Petitioner)
v.
Sergeant Alain Gagnon and Jacques Beaudouin
(Respondents)
and
Ronald Halpin (Mis -en-cause)
Trial Division, Walsh J.—Montreal, January 21;
Ottawa, January 29, 1976.
Jurisdiction — Mandamus and declaration — Whether re
spondents illegally exercising a right not conferred on them
in requiring petitioner to be fingerprinted and photographed in
order to register firearm—Whether Court has jurisdiction—
Criminal Code, ss. 82, 98, 99—Identification of Criminals Act,
R.S.C. 1970, c. 1-1—Federal Court Act, ss. 2, 17(4)(b), 25.
In order to register a firearm, petitioner was advised that he
would have to be fingerprinted and photographed at Quebec
Police headquarters. He seeks a declaration that respondents
are illegally exercising a right not conferred by Act of Parlia
ment or regulations, and mandamus, that respondents be
ordered to cease such practices, and that respondent Gagnon
endorse the application and perform the acts set forth in section
98(2)(b)(i),(ii) and (iii) of the Criminal Code.
Held, granting the application except the general direction to
respondents to cease. The question is not whether the require
ment is a proper prerequisite, but whether the Quebec Provin
cial Police has the necessary authority to impose it. "Commis-
sioner" in section 98 means the RCMP Commissioner (section
82(1)); the form of application to the local Registrar must be
prescribed by him. Under section 98(2)(b), the Registrar
"shall" endorse the application and send it to the Commission
er, unless he feels the applicant should not possess a weapon,
which matter he shall report to the Commissioner. The Com
missioner shall register the weapon, or refuse, and appeal is
provided for. Though respondents are members of the Quebec
Provincial Police, Gagnon was acting as local Registrar under
section 82(1) of the Criminal Code, and in accord with orders
given by Beaudouin. While it is doubtful whether the Commis
sioner is a one-man commission within the meaning of section 2
of the Federal Court Act, it is contended that he comes within
section 17(4)(b), and that by virtue of section 18, the Court has
jurisdiction. Petitioner relies on section 25, alleging that section
98 of the Code provides no remedy against the Registrar's
refusal. The Court has jurisdiction. Under section 98(3) of the
Code, the Registrar must report to the Commissioner when he
"has notice of any matter" rendering it desirable that an
applicant not possess a weapon. The fact that notice of such
matter is hard to obtain without fingerprints does not justify
the conclusion that, in the absence of fingerprints, he has
"notice of any matter". In the absence of specific legal author
ity, he cannot be permitted to require fingerprinting and pho
tography, though desirable and reasonable, so that they can be
used to enable him to find such "matter".
APPLICATION.
COUNSEL:
V. Lefebvre for petitioner.
J. Morin for respondents.
No one for mis -en-cause.
SOLICITORS:
Byers, Casgrain & Stewart, Montreal, for
petitioner.
Department of Justice for the Province of
Quebec for respondents.
No one for mis -en-cause.
The following are the reasons for judgment
rendered in English by
WALSH J.: This is an application by petitioner
for declaratory relief and mandamus against
respondents ès qual., seeking a declaration that in
requiring petitioner to submit to fingerprinting and
photography in connection with his application to
have a firearm, at present registered in the name
of the mis -en-cause, inscribed in his name, they
illegally exercise a right or authority which has not
been conferred upon them by an Act of Parliament
or by regulations, and that, by judgment to be
rendered herein, an order be given to them to cease
to request applicants for registration of firearms to
submit to fingerprinting and photography, and
that respondent Gagnon, in his quality of Regis
trar of firearms for the Province of Quebec, be
ordered to endorse the application and perform the
acts spelled out in section 98(2)(b)(i),(ii) and (iii)
of the Criminal Code of Canada, within a delay of
2 days from judgment to be rendered herein.
The record discloses that on October 11, 1975
petitioner completed a form for registration of a
restricted weapon. The form bears the heading
"Government of Quebec, Department of Justice,
Quebec Police Force". The form indicates that
petitioner is a Canadian citizen, residing in the
Province of Quebec, is aged 52, self-employed as a
manufacturers' representative and that he requires
the pistol in question for the protection of person
and property, and that he has had no previous
conviction and has resided at the same address for
23 years. His social security number is given, as
required by the form.
On October 20, 1975 he received a telephone
call from an agent of the Quebec Police Force,
advising him that in accordance with the instruc
tions of respondent Gagnon, he would have to have
his fingerprints and photograph taken at their
headquarters. As a result of this, a letter was
written by the mis -en-cause, from whom petitioner
was buying the pistol in question, and who happens
to be a judge of the Provincial Court of Quebec, to
the Attorney General of that Province, on Novem-
ber 12, 1975 protesting against this procedure as
being irregular and illegal. A reply to this letter
was received from respondent Jacques Beaudouin,
Director of the Provincial Police, invoking section
98(3) of the Criminal Code dealing with registra
tion of firearms, which reads as follows:
98. (3) Where a local registrar of firearms has notice of any
matter that may render it desirable in the interests of the safety
of other persons that the applicant should not possess a restrict
ed weapon, he shall report that matter to the Commissioner.
The letter goes on to state:
[TRANSLATION] In our humble opinion the only way for the
Registrar to comply with this section is to make an investiga
tion of every person requiring a registration for a permit for
carrying a weapon to attempt to determine by every means in
his power if this permit can be given to him.
In view of the revival of criminality in the province and the
criticism to which we are so often subjected in this connection,
we have to be very careful and I do not believe that an honest
and understanding citizen can consider that he is being treated
as a criminal and take offence if we request his fingerprints and
photograph.
While I fully share the views expressed in these
two paragraphs and the desirability for requiring
fingerprints and police photographs for identifica
tion of applicants for gun permits, it is nevertheless
necessary to look at the law in order to ascertain
whether the Quebec Provincial Police has the au
thority to impose this requirement.
While respondents do not in any way suggest
that the petitioner in the present case is not a
suitable person to have such a permit, it is evident
that unless some such requirement is insisted upon,
it will be difficult, if not impossible to determine
whether in any given case such an application
should be granted or not. The applicant does not
have to present himself in person and an applica
tion could be made under an assumed name. The
procedure for obtaining a social insurance registra
tion is so simple that such a registration can
readily be obtained under an assumed name, or the
applicant could impersonate someone else using his
social insurance number and name, in connection
with his application for a permit, as the card itself
does not have to be shown. Needless to say no one
but criminals, being the very persons to whom
permits should not be granted, would be likely to
adopt these fraudulent practices, but the only posi
tive means of identification, and of ascertaining
whether in fact an applicant has a record, is by
these fingerprints.
While the petitioner does not come within the
provisions of the Identification of Criminals Act'
setting out the circumstances in which fingerprint
ing becomes obligatory, there are nevertheless
many situations in which fingerprinting is required
of citizens, such as applications for certain occupa
tions involving a high degree of security, for entry
into the armed services and so forth, and the great
majority have no objection whatsoever to being
fingerprinted and photographed, as respondent
Beaudouin suggests. Certainly, making this a pre
requisite for applying for a certain job or, as in the
present case, for a gun permit, is not equivalent to
obliging the person in question to submit to finger
printing and photographing, under circumstances
which the Identification of Criminals Act does not
require, as the applicant always has the option of
refusing this requirement, although by so doing he
makes himself ineligible for the position or permit
in question. The question before the Court how
ever, is not whether this requirement should be
made a prerequisite to obtaining the permit in
question, but rather whether the Quebec Provin
cial Police has the necessary authority to impose
such a requirement. Section 98(1) and (2) of the
Criminal Code dealing with these registrations,
reads as follows:
R.S.C. 1970, c. I-1.
98. (1) The Commissioner shall cause a registry to be main
tained in which shall be kept a record of every firearm registra
tion certificate issued under this section.
(2) An application for a registration certificate shall be in a
form prescribed by the Commissioner and shall be made to a
local registrar of firearms who shall, upon receiving the
application,
(a) issue a permit under section 97 authorizing the applicant
to transport the weapon to him for examination; and
(b) if he is satisfied that the weapon bears a serial number
sufficient to distinguish it from other restricted weapons or,
in the case of a weapon that in his opinion is useful or
valuable primarily as an antique, that the description of the
weapon in the application is accurate, endorse the application
and
(i) send one copy thereof to the Commissioner,
(ii), deliver one copy thereof to the applicant, and
(iii) retain one copy thereof.
The word Commissioner is defined in section
82(1) as being the "Commissioner of the Royal
Canadian Mounted Police". It follows that the
form used by the application for registration to the
local Registrar of firearms must be in a form
prescribed by the Commissioner and this is so,
even though the form used in the present case
bears the heading "Government of Quebec,
Department of Justice, Quebec Police Force".
It must be noted that subsection (2)(b) of sec
tion 98 uses the word "shall" in requiring the local
Registrar of firearms to endorse the application
and send one copy to the Commissioner, one copy
to the applicant and retain one copy, unless, by
invoking subsection (3) (supra), he "has notice of
any matter that may render it desirable in the
interests of the safety of other persons that the
applicant should not possess a restricted weapon"
which matter he shall report to the Commissioner.
Upon receiving the endorsed application, the
Commissioner, by virtue of section 98(4) "shall,
subject to section 99, register the restricted weap
on". As in the case of the local Registrar, the
Commissioner, by virtue of section 99(4) may
refuse to issue a certificate "where he has notice of
any matter that may render it desirable in the
interests of the safety of other persons that the
applicant should not possess a restricted weapon"
and there is an appeal from this to a magistrate,
by virtue of section 99(6). This is not the issue of
the present case, which deals merely with the
refusal of the local Registrar to endorse the
application and forward it to the Commissioner in
view of petitioner's refusal to submit to finger
printing and photographing. It is not contended
that the application is irregular in any other
respect.
By virtue of section 82(1) of the Criminal Code,
the local Registrar of firearms means "a person
appointed in writing by the Commissioner or by
the Attorney General as a local registrar of fire
arms". In the present case, Sergeant Gagnon was
so appointed by the Attorney General of Quebec.
Respondents contend that although the Criminal
Code is admittedly a federal statute, the adminis
tration of criminal justice is left to the provinces
and in the present case, the two Respondents are
both members of the Quebec Police Force so that
this Court has no jurisdiction over the present
proceedings. As petitioner points out, however,
Sergeant Gagnon was acting in his quality as local
Registrar of firearms, so appointed pursuant to the
provisions of section 82(1) of the Criminal Code,
even though the optional method of appointment
by the Provincial Attorney General was used, and,
in requiring the fingerprinting and photographing,
he was acting in accordance with orders given to
him by the respondent Jacques Beaudouin as
Director of the Quebec Police Force. Petitioner
refers to section 2 of the Federal Court Act which
reads in part:
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or purporting to
exercise jurisdiction or powers conferred by or under an Act
of the Parliament of Canada
and notes that this can include the Commissioner
of the Royal Canadian Mounted Police as a person
exercising jurisdiction conferred on him for the
present purposes by the Criminal Code. While
there would seem to be considerable doubt as to
whether the Commissioner of the Royal Canadian
Mounted Police is a one man "Commission"
within the meaning of this definition, it is further
contended that he comes within the provisions of
section 17(4)(b) of the Act which gives the Trial
Division concurrent original jurisdiction "in pro
ceedings in which relief is sought against any
person for anything done or omitted to be done in
the performance of his duties as an officer or
servant of the Crown" and that, by virtue of
section 18 this Court has jurisdiction over the
present mandamus proceedings or to render a
declaratory judgment.
Counsel for petitioner further relies on section
25 of the Federal Court Act which reads as
follows:
25. The Trial Division has original jurisdiction as well be
tween subject and subject as otherwise, in any case in which a
claim for relief is made or a remedy is sought under or by
virtue of the laws of Canada if no other court constituted,
established or continued under any of the British North Ameri-
ca Acts, 1867 to 1965 has jurisdiction in respect of such claim
or remedy.
contending that section 98 of the Criminal Code
provides no remedy against the refusal of the local
Registrar to endorse the application for registra
tion and forward it to the Commissioner, unlike
section 99 which provides for an appeal to a
magistrate and from him to the Provincial Appeal
Court against the refusal of the Commissioner to
issue a registration.
I conclude therefore that this Court has jurisdic
tion over the present proceeding.
Turning to the merits, I am reluctantly unable
to give section 98(3) the broad interpretation
sought by respondents. If the section had stated
that the local Registrar of firearms "shall before
endorsing an application for a permit make an
investigation to determine whether it is desirable
in the interests of the safety of other persons that
the applicant should not possess a restricted
weapon, and if he so concludes report the matter
to the Commissioner" or some similar words, there
would, in my view, be no objection to his requiring
that an applicant provide fingerprints and photo
graphs for identification purposes. However, the
section merely requires him to make such a report
when he "has notice of any matter that renders it
desirable in the interests of the safety of other
persons that the applicant shall not possess a
restricted weapon". The fact that it is difficult, if
not impossible, to obtain notice of any such matter
without these fingerprints for positive identifica
tion, does not, in my view, justify an interpretation
of the law as it now reads that, in the absence of
fingerprints, he has "notice of any matter". All he
can do at present is make an investigation of the
social security number of the applicant, his address
and business and any other information which he
is able to obtain from the application form now
used and if, as a result of this investigation he
comes across anything which is suspicious, he can
then be considered as having "notice of any mat
ter" within the meaning of section 98(3), but this
cannot be extended so as to permit him, in the
absence of specific legal authority to require fin
gerprinting and a photograph so that these can
then be used to enable him to endeavour to obtain
such "notice". I in no way blame the respondents
for requesting such information which, in my view,
is desirable, useful and not unreasonable, but I am
unable to find the legal authority for doing so.
Under the circumstances however, I will not
include in my order the general direction requested
by petitioner to respondents to cease to request
applicants for registration of firearms to submit to
fingerprinting and photography. In the event of
refusal however, as in the present case, it is not,
unless and until the law is amended, a requirement
which can be enforced.
ORDER
Respondents, in requiring petitioner to submit to
fingerprinting and photography, illegally exercise
a right or authority which has not been conferred
upon them by an Act of Parliament or by regula
tions. Respondent Gagnon, in his quality of Regis
trar of firearms for the Province of Quebec is
therefore ordered to endorse the application of
petitioner and perform the acts set out in section
98(2)(b)(i),(ii) and (iii) of the Criminal Code of
Canada, within 10 days, with costs.
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.