Future Services Ltd v Attorney General

• Jurisdiction: Jamaica
• Judge: SINCLAIR-HAYNES, —
• Judgment Date: 18 April 2011
• Judgment citation (vLex): [2011] 4 JJC 1801
• Docket Number: CLAIM NO. 2009 HCV03752
• Date: 18 April 2011
• Court: Supreme Court (Jamaica)

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2009 HCV03752

BETWEEN

FUTURE SERVICES LTD

CLAIMANT

AND

ATTORNEY GENERAL

DEFENDANT

Mrs. N. Foster-Pusey for the Claimant

Ms. Lisa White and Miss Alicia Mcintosh for the Defendant

Whether pepper spray can be imported into Jamaica without a No Objection Letter from the Minister of National Security — implied repeal — Whether the Offensive Weapons Prohibition Act authorizes the possession of pepper spray and by implication its importation for personal protection — Whether the importation and sale of pepper spray in Jamaica is legal — appropriate use Hansard Notes of Parliament — Whether the matter is merely academic — Judicial Review-presumption of Regularity

SINCLAIR-HAYNES, —

1 The claimant, Future Services Ltd, members of staff suffered a series of violent attacks which culminated in the murder of its security officer by gunmen. Consequently, in an effort to protect its staff, it sought to purchase pepper spray (oleoresin capsicum) in Jamaica, but was unable to do so because pepper spray was a controlled product which required the approval of the Minister of National Securitv in the form of a "No Objection Letter."

2 The Minister of National Security sought and obtained the opinion of the Ministry of Health that pepper spray may be potentially harmful and lethal, especially to asthmatics and persons suffering from cardiac and bronchial problems. The claimant's application was consequently refused. It was advised that pepper spray was a restricted item which required a licence for its importation, pursuant to the Firearms Act. However, subsequent to the initiation of this Claim, on February 23, 2010 and by virtue of power conferred on the Minister by Section 39 of the Customs Act, the importation of the pepper spray was prohibited by the (Import Prohibition) ( Miscellaneous Goods) Order, 2010 and was duly gazetted. The importation of pepper spray is thereby now banned.

3 The claimant disagreed with the decision of the Minister of National Security refusing its application and instituted proceedings by way of Fixed Date Claim Form seeking the following:

The Claim

Amendment to claim

• i. a declaration that the importation and sale of pepper spray is legal in Jamaica;

• ii. a declaration that the claimant may import pepper spray into Jamaica without the possession of a No Objection Letter from the Ministry of National Security;

• iii. a declaration that the provisions of the Firearms Act do not apply to the possession, importation and use of pepper spray;

• iv. in the alternative a declaration that insofar as the Firearms Act applies to the possession, importation and use of pepper spray, its provisions in that regard have been impliedly repealed by Section 2 of the Offensive Weapons (Prohibition) Act;

• v. a declaration that the provisions of the Offensive Weapons (Prohibition) Act OW(P)A authorize the possession (and by implication the importation) of pepper spray for personal protection.

4 The declaration sought that the provisions of the Firearms Act do not apply to the possession, importation and use of pepper spray was not pursued.

Claimant's Submissions

Submissions by Mrs. Foster-Pusey

5 Mrs. Foster-Pusey on behalf of the claimant contends that the Order made pursuant to Section 39 of the Customs Act which now prohibits the importation of pepper spray is inconsistent with the provisions of the Customs Act (which is the substantive legislation) and the provisions of the Firearms Act. Although Section 39 of the Customs Act empowers the Minister to prohibit the importation of any goods whatsoever into the island, Section 40 expressly provides that until revoked by Order under Section 39, arms and ammunition, are prohibited from importation "except with the written permission of the Commissioner". The words "except with the written permission of the Commissioner" are important because the Firearms Act provides for the grant of various licences, certificates and permits including firearm permits, firearm dealer's licences and firearm user's licences.

6 The permission of the Commissioner of Customs is required so as not to make nonsense of the provisions of the Firearms Act. One of the main functions of the Firearm Licensing Authority, she submits, is the consideration of applications for firearm user's licences and import permits. Many security businesses and persons in Jamaica with the requisite permission to own guns, have to purchase and import firearms and ammunition. In the circumstances, it could never be the intention of the legislature that the importation of all firearms and ammunitions is now absolutely prohibited.

7 The Firearm Act, defines firearms as including restricted weapons. It defines "restricted weapon" as "any weapon of whatever description or design which is adapted for the discharge of any noxious liquid, gas or other thing". A canister of pepper spray therefore falls within the definition of a firearm and is a weapon for which an import permit can be granted by the Firearm Licensing Authority. This was not clear to the legislators, because they concluded that it was necessary to refer to pepper spray separately from the reference to firearms and ammunition although it falls within the definition of ammunition under the Firearms Act. This is misleading and leads to confusion and contradiction. The court must determine the outcome of the interplay between the provisions of the recent Order, the main provision of the Customs Act and the provisions of the Firearms Act which expressly provide for the importation of arms and ammunition under which rubric pepper spray falls.

8 The defendant has acknowledged that any importation of pepper spray requires a permit. The Order made in 2010 is a piece of subsidiary legislation which was apparently not properly considered and is clearly inconsistent with the provisions of Section 40 of the Customs Act which is the substantive legislation. Section 40 of the Customs Act prevails and pepper spray can be imported if the importer:

By such an interpretation, the provisions of the Firearms Act and the Customs Act can operate in harmony and an absurd situation is not created.

Submissions regarding the Sale of Pepper Spray

• a. has acquired an import licence from the Firearm Licensing Authority; and thereafter

• b. has acquired the written permission of the Commissioner of Customs.

10 Section 2 (1) of the Firearms Act provides that a Firearm Dealer's Licence authorizes the holder of the licence to buy or sell at specified places firearms and ammunition of such type as are specified in the licence. Section 26A of the Act provides for the Firearm Licensing Authority to receive and consider applications for firearms licences, certificates or permits.

11 Section 39 of the Customs Act provides that licences, certificates or permits not be granted in relation to any restricted weapon except with the prior approval of the Minister. Pepper spray is a restricted weapon which can be sold if a firearms dealer's licence is granted by the Firearm Licensing Authority for such an activity. In the circumstances, the claimant may import pepper spray into Jamaica without the possession of a "No Objection Letter" from the Minister of National Security. Further, the defendant has not outlined the legislative basis for a requirement of a "No Objection Letter" from the minister. The court should therefore make a declaration that the claimant may import pepper spray without obtaining a "No Objection Letter" from the Ministry of National Security.

Submissions concerning implied repeal of the provisions of the Firearms Act which apply to the possession, use and importation of pepper spray by Section 2 of OW(P) A.

12 It is her alternative submission that the provisions of the Firearms Act, insofar as they apply to possession, importation and use of pepper spray, have been impliedly repealed by Section 2 of the OW(P)A.

13 There is an overlap with and contradiction between the provisions of the Offensive Weapons Prohibition Act and the Firearms Act regarding the use of and possession of pepper spray. An examination of both Acts along with the Hansard debates makes it clear that the legislators were providing for persons to be free to possess and use pepper spray for their personal defence. According to her, this is reflected in the debates of both the Lower and Upper Houses of Parliament. The legislature specifically considered how it would approach the possession and use of pepper spray when the OW(P)A was being debated. She relies on the following statements made by Mr. K. D. Knight Q.C, then Minister of National Security and Justice, who piloted the Bill in the Lower House. Additionally, the contributions by Senator A.J. Nicholson Q.C, Senator Hamaty, and Senator D. Lightbourne were submitted.

14 Mr. Knight Q.C. in his introductory remarks stated:

"Madam Speaker, the Committee was also very concerned about the matter of self- defence as the argument that was raised both in the Committee and wider public, was that persons oftentimes are in possession of these weapons for sell (sic) defence purposes, and because many of the persons who had these weapons do not have open access to gaining firearms licences, it was felt that they would be at a disadvantage, because those persons who have firearm licences on their applications you will see that the reason they give for wanting firearm is for the protection of life and property and, it was the view that something had to be done to cause those persons who would now be committing an offence by carrying these knives to have some means of self- defence. And in order to provide for such persons, the Bill was amended and in Clause 2 of it, Clause 2(H), it was made very clear that the definition of Offensive Weapons does not include certain things, and these things are: - "A mace or...