A Straightforward Case About Bear Protection Provides a Clear Illustration of the Basics of Judicial Review

Decisions made by government officials about any number of things, can in many cases be challenged on judicial review. One recent case out of the Federal Court of Appeal reminds us – against a truly Northern backdrop – that administrative decisions must be procedurally fair and substantively reasonable (i.e. based on common sense). When they are not, they risk being overturned. 

This is a case about a helicopter pilot, Mr. Sexsmith, who flies hunters and guides around the Mackenzie Mountains along the NWT/Yukon border. Mr. Sexsmith wants to carry a handgun in his helicopter, locked in a case stowed under his seat in a compartment where passengers cannot see it. His rationale is that if he is “downed” in bear country, due to weather, equipment failure, or other unforeseen circumstances, he needs quick access to a firearm to protect himself and his passengers against grizzlies. As he puts it, if he “land[s] or crash[es]” and is isolated in the bush, “hunters and meats and hides…attract grizzly bears” and so he needs his handgun to deal with them. When his small helicopter is packed with guides, hunters and their belongings, in an emergency, long guns are too long and too heavy to retrieve, whereas his .460 calibre revolver is easier to access.

Mr. Sexsmith applied under the Firearms Act to carry a restricted firearm in his helicopter. At the end of an interview with firearms officers about his application, they informed him they would deny his application. At that time, they did not give him reasons why. After the interview, the officers consulted with other government officials. Those consultations, which Mr. Sexsmith was not privy to, formed the basis of the officers’ written decision.

Mr. Sexsmith, representing himself, challenged the decision on the grounds that the decision was procedurally and substantively unfair. The Federal Court denied him. He appealed that decision, and was successful in the Federal Court of Appeal.

Procedural fairness is judged on a scale. Decisions of great importance to an individual require a high degree of fairness, decisions of lesser importance, a lower degree. The Court of Appeal found that the degree of procedural fairness required in this case was high: to him, the importance of carrying a restricted firearm on his helicopter is a matter of life and death to himself and his passengers. The Court also found it necessary to allow Mr. Sexsmith to respond to the government officials’ case against him. They did not grant him that opportunity, and accordingly the Court overturned the result and sent the matter back to separate firearms officers to redetermine the result. Fundamentally, the Court’s decision is a reminder that decisions of importance cannot be made unless affected parties have had the opportunity to respond to material evidence offered against them.

The Court could have stopped its analysis there, having already overturned the decision, but it went on to discuss the substantive reasonableness of the decision. Or, in other words, did the decision make sense on its merits? The Court confirmed that it needs to defer to administrative decision makers – it is not the Court’s place to reweigh the evidence or to second-guess exercises of discretion. But, the Court said, “deference is far from automatic acceptance.” While the Court did not feel it had the ability to actually grant Mr. Sexsmith his licence, applying Vavilov, the Supreme Court of Canada’s most recent leading case on judicial review, the Court went on to provide guidance to the decision makers tasked with re-evaluating Mr. Sexmith’s application.

Here, the Court warned of shortcomings in the initial decision maker’s reasoning that future decision makers on Mr. Sexsmith's application should avoid. First, the Court said they need to consider the context of the governing legislation: it allows trappers to carry a handgun – the implication being, why not Mr. Sexsmith? Second, they need to consider the actual threat of bears – the officers’ initial decision appeared based on the suggestion that Mr. Sexsmith could just fly away, whereas his actual concern was the helicopter not being active. Third, the Court questioned the government officials’ assessment of the availability of alternatives and the efficacy of handguns. The Court clearly did not accept the officials’ suggestion that handguns “in general” are not effective against bears. In the Court’s words, “This broad statement should be critically assessed, not taken on faith.” Lastly, the Court confirmed the principle in Vavilov that administrative decision makers must deal with the issues before them in a genuine, open-minded way, avoiding result-oriented thinking.

The decision is a welcome reminder that state decisions affecting individuals’ important interests must be fair and based on common sense. As the Court put it, decisions “need not be an encyclopedia of everything that can be said on the matter … there need only be a reasoned explanation concerning the key issues, including the key arguments made.” Clearly, in this case, the firearms officers failed. Given that Mr. Sexsmith represented himself throughout, this decision is a good reflection that administrative law, despite the jargon and red tape that one sometimes sees, need not be overly complicated. Ultimately, Courts will strive to uphold what is fair and right, in any number of state decisions affecting one’s daily life.


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Our North of 60 Blog provides commentary on current legal trends and developments, and legislative updates affecting businesses in Northern Canada.

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