R. v. Powley (S.) et al., (2001) 141 O.A.C. 121 (CA)

• Judge: McMurtry, C.J.O., Abella and Sharpe, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 23, 2001
• Jurisdiction: Ontario
• Citations: (2001), 141 O.A.C. 121 (CA)

R. v. Powley (S.) (2001), 141 O.A.C. 121 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. FE.088

Her Majesty The Queen (appellant) v. Steve Powley and Roddy Charles Powley (respondents)

(C34065)

Indexed As: R. v. Powley (S.) et al.

Ontario Court of Appeal

McMurtry, C.J.O., Abella and Sharpe, JJ.A.

February 23, 2001.

Summary:

The accused Métis were charged under ss. 46 and 47(1) of the Game and Fish Act with unlawfully hunting moose without a licence and unlawful possession of game. The trial judge acquitted the accused on the ground that they had an aboriginal right to hunt protected by s. 35(1) of the Constitution Act, and ss. 46 and 47(1) unjustifiably infringed those rights. The Crown appealed under s. 116 of the Provincial Offences Act.

The Ontario Superior Court, in a judgment reported [2000] O.T.C. 49, dismissed the appeal, with the exception of varying the trial judge's definition of "Métis" for the purpose of identifying and affirming site-specific aboriginal rights. The trial judge correctly stated the purpose of including Métis people in s. 35(1) and in finding that hunting was a practice, custom or tradition integral to the distinctive culture of the local Métis community at Sault Ste. Marie prior to 1815-1850. The trial judge did not err in finding that there was a contemporary Métis community in Sault Ste. Marie and the surrounding area that was in continuity with the historic Métis community in which hunting for food was integral. The court noted the difficulty, compared with Indians, of establishing membership in the Métis community, but found that the accused were members of that community. The court stated that "imposition of a cultural means test or blood quantum rule, as a general prerequisite for membership in a Métis community, would be inconsistent with the fundamental purposes of s. 35". Finally, the trial judge did not err in finding that ss. 46 and 47(1) unjustifiably infringed the aborig­inal right to hunt for food. The Crown ap­pealed.

The Ontario Court of Appeal dismissed the appeal, affirmed the trial judge's finding of an aboriginal right to hunt for food within the hunting territory of the community and that ss. 46 and 47(1) unjustifiably infringed those rights. However, the court stayed the order for one year to permit consultation with stakeholders and develop a new moose-hunting regime that was consistent with s. 35 of the Constitution Act.

Constitutional Law - Topic 25

General - Raising constitutional issues - Proof required - Legislative facts versus adjudicative facts - Two Métis were ac­quitted on charges of hunting without a licence on the basis of an aboriginal right to hunt for food (Constitution Act, s. 35) - The acquittals were affirmed on appeal - The Crown appealed and sought to intro­duce on appeal, as uncontroversial legis­lative facts or "fresh" evidence, academic articles interpreting s. 35, articles on Métis history, statements of defence filed by the federal Crown in other cases and infor­mation from the websites of the Depart­ment of Indian and Northern Affairs and the Ontario Métis and Aboriginal Asso­ciation - The Ontario Court of Appeal admitted the articles respecting s. 35 as legislative fact - The articles respecting Métis history (a contentious issue at trial) were not admitted, as they dealt more with adjudicative fact than legislative fact - Neither the statements of defence nor the website information were admitted - See paragraphs 57 to 73.

Criminal Law - Topic 7471

Summary conviction proceedings - Appeals - General - Evidence on appeal (incl. fresh evidence) - The Ontario Court of Appeal denied the Crown leave to introduce four items of "fresh" evidence on an appeal from an appeal affirming acquittals - Item 1 could have been adduced at trial with due diligence and, in any event, could not have affected the outcome - Items 2 and 3 were not in admissible form (no claim by the deponents to have the necessary exper­tise to explain the data constituting the fresh evidence) and, in any event, this evidence could also not have affected the result - Item 4 was unsworn and was not relevant to any issue before the court - See paragraphs 50 to 56.

Fish and Game - Topic 847

Indian, Inuit and Métis rights - Right to hunt for food - Métis - The accused Métis were charged under ss. 46 and 47(1) of the Game and Fish Act with, inter alia, unlaw­fully hunting moose without a licence - The trial judge acquitted the accused on the ground that they had an aboriginal right to hunt protected by s. 35(1) of the Constitution Act, and ss. 46 and 47(1) unjustifiably infringed those rights - That decision was affirmed on appeal - The trial judge correctly held that hunting was a practice, custom or tradition integral to the distinctive culture of the local Métis com­munity at Sault Ste. Marie prior to 1815-1850, that there was a contemporary Métis community in Sault Ste. Marie and the surrounding area that was in continuity with the historic Métis community in which hunting for food was integral, and that the accused were members of that community - Finally, the trial judge cor­rectly held that ss. 46 and 47(1) unjus­tifiably infringed the aboriginal right to hunt for food, where the regulatory scheme accorded no recognition or priority to the Métis - The Ontario Court of Appeal af­firmed the trial judge's decision - The court stayed the order for one year in the interests of conservation and consultation and to permit an orderly transition to a regulatory regime that was consistent with s. 35 of the Constitution Act - See para­graphs 74 to 178.

Indians, Inuit and Métis - Topic 2.1

General - Métis defined - At issue was who constituted a "Métis" for the purposes of protecting aboriginal rights under s. 35 of the Constitution Act and whether it was necessary to establish a direct genealogical link to the historic Métis community that was the source of the s. 35 right, excluding persons who identified as Métis but did not have that ancestral connection - The trial judge held that proof of ancestral connec­tion was required - The Superior Court, on appeal, stated that "imposition of a cultural means test or blood quantum rule, as a general prerequisite for membership in a Métis community, would be inconsistent with the fundamental purposes of s. 35" - The Ontario Court of Appeal held that it was unnecessary to resolve the issue, as the accused Métis involved established the ancestral connection under the trial judge's more stringent test - Resolution of the issue should be left to a case where the issue was germane to the result and fully argued by the parties - See paragraphs 150 to 155.

Indians, Inuit and Métis - Topic 506

Rights - General - Constitution Act, 1982, s. 35 - Interpretation - The Ontario Court of Appeal held that s. 35 of the Constitu­tion Act called for a generous, liberal and purposive interpretation - The court set out the appropriate test for assessing s. 35 aboriginal harvesting rights - See para­graphs 77 to 91.

Indians, Inuit and Métis - Topic 806

Personal or legal rights - General - Métis -The Crown submitted that to establish an aboriginal right, a Métis claimant must show that the right claimed is founded on a practice carried on by the claimant's pre-contact Indian ancestors - The Ontario Court of Appeal found it unnecessary to decide the issue, but did state that "the constitution formally recognizes the ex­istence of distinct 'Métis peoples', who, like the Indian and Inuit, are a discrete and equal subset of the larger class of 'aborig­inal peoples of Canada'. It seems to me that, in keeping with the interpretive prin­ciples to which I have already referred, we must fully respect the separate identity of the Métis peoples and generously interpret the recognition of their constitutional rights. The rights of one people should not be subsumed under the rights of another. To make Métis rights entirely derivative of and dependant upon the precise pre-contact activities of their Indian ancestors would, in my view, ignore the distinctive history and culture of the Métis and the explicit recognition of distinct 'Métis peoples' in s. 35" - See paragraphs 98 to 101.

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - General - Proof of - [See Fish and Game - Topic 847 ].

Practice - Topic 8800

Appeals - General principles - Duty of appellate court regarding findings of fact by a trial judge - The Ontario Court of Appeal stated that "it is plainly not the role of this court to retry the case, particularly where the case has already gone through one level of appeal. It is well established that an appellate court will treat a trial judge's findings of fact with deference and will not interfere 'unless it can be es­tablished that the trial judge made some palpable and overriding error which af­fected his assessment of the facts'" - See paragraph 27.

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" - [See Criminal Law - Topic 7471 ].

Cases Noticed:

Stein Estate et al. v. Ship Kathy K et al., [1976] 2 S.C.R. 802; 6 N.R. 359, refd to. [para. 27].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 27].

R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; 200 N.R. 321; 80 B.C.A.C. 269; 130 W.A.C. 269, refd to. [para. 27].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89, refd to. [para. 27].

R. v. Côté (F.) et al., [1996] 3 S.C.R. 139; 202 N.R. 161, refd to. [para. 27].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 51].

Public School Boards Association (Alta.) et al. v. Alberta (Attorney General) et al., [2000] 1 S.C.R. 44; 250 N.R. 1; 250 A.R. 314; 213 W.A.C. 314, refd to. [para. 51].

R. v. Warsing (K.L.), [1998] 3 S.C.R. 579; 233 N.R. 319; 115 B.C.A.C. 214; 189 W.A.C. 214, refd to. [para. 512.

R. v. R.C. (1989), 31 O.A.C. 375; 47 C.C.C.(3d) 84 (C.A.), refd to. [para. 52].

R. v. Palmer, [2000] O.J. No. 2787 (C.A.), refd to. [para. 61].

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69, refd to. [para. 61].

Ford v. Québec (Procureur général) - see Chaussure Brown's Inc. et al. v. Québec (Procureur général).

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 61].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Seo (1986), 13 O.A.C. 359; 54 O.R.(3d) 293 (C.A.), refd to. [para. 61].

R. v. McPherson (J.J.) and Christe (H.M.) (1992), 82 Man.R.(2d) 86 (Prov. Ct.), revd. (1994), 90 Man.R.(2d) 290; 111 D.L.R.(4th) 278 (Q.B.), refd to. [para. 74].

R. v. Morin (B.A.) et al., [1996] 3 C.N.L.R. 157 (Sask. Prov. Ct.), affd. (1997), 159 Sask.R. 161 (Q.B.), refd to. [para. 74].

R. v. Ferguson, [1993] 2 C.N.L.R. 148 (Alta. Prov. Ct.), affd. [1994] 1 C.N.L.R. 117 (Q.B.), refd to. [para. 74].

R. v. Desjarlais, [1996] 1 C.N.L.R. 148 (Alta. Prov. Ct.), refd to. [para. 74].

R. v. Blais (E.L.J.), [1996] 3 C.N.L.R. 109 (Man. Prov. Ct.), affd. [1998] 4 C.N.L.R. 103; 130 Man.R.(2d) 114 (Q.B.), leave to appeal granted [1998] Man.R.(2d) Uned. 110; [1999] 2 W.W.R. 445 (C.A.), refd to. [para. 74].

Perry et al. v. Ontario (1997), 100 O.A.C. 370; 33 O.R.(3d) 705 (C.A.), refd to. [para. 74, footnote 2].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 77].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 77].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 77].

Worcester v. Georgia (1832), 31 U.S. (6 Pet.) 414 (S.C.), refd to. [para. 77].

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 82].

R. v. Sundown (J.), [1999] 1 S.C.R. 393; 236 N.R. 251; 177 Sask.R. 1; 199 W.A.C. 1, refd to. [para. 90].

R. v. Pamajewon (H.) et al., [1996] 2 S.C.R. 821; 199 N.R. 321; 92 O.A.C. 241, refd to. [para. 109].

R. v. Marshall (D.J.), [1999] 3 S.C.R. 456; 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201, refd to. [para. 114].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161, refd to. [para. 160].

R. v. Jack et al., [1980] 1 S.C.R. 294; 28 N.R. 162, refd to. [para. 163].

R. v. Feeney (M.), [1997] 2 S.C.R. 13; 212 N.R. 83; 91 B.C.A.C. 1; 148 W.A.C. 1, refd to. [para. 172].

Statutes Noticed:

Constitution Act, 1982, sect. 35 [para. 8].

Game and Fish Act, R.S.O. 1990, c. G-1, sect. 3 [para. 161]; sect. 46, sect. 47(1) [para. 7].

Authors and Works Noticed:

Bell, Catherine, Métis Constitutional Rights in Section 35(1) (1997), 36 Alta. L. Rev. (No. 1) 180, generally [para. 99].

Boldt, Menno, and Long, Anthony J., The Quest for Justice: Aboriginal People and Aboriginal Rights (1985), generally [para. 62].

Canada, Report of the Royal Commission on Aboriginal Peoples (1996), vol. 4, pp. 199, 200 [para. 20]; 220 [para. 18]; 227 [para. 135]; 260 [para. 18]; 261 [para. 133]; Appendix 5A, p. 281 [para. 102].

Flanagan, Thomas, Métis Aboriginal Rights: Some Historical and Contem­porary Problems, in The Quest for Jus­tice: Aboriginal People and Aboriginal Rights (1985), generally [para. 62].

Gibson, Dale, General Sources of Métis Rights, in Canada, Report of the Royal Commission on Aboriginal Peoples (1996), vol. 4, Appendix 5A, p. 281 [para. 102].

Hogg, Peter W., Constitutional Law of Canada (1992 Looseleaf), p. 57-10 [para. 59].

Roach, Kent, Constitutional Remedies in Canada (2000 Looseleaf), pp. 15.70, 15.80 [para. 177].

Schwartz, Brian, First Principles, Second Thoughts: Constitutional Reform with respect to the Aboriginal Peoples of Canada, 1982-84 (1985), generally [para. 62].

Counsel:

Lori Sterling, Peter Landmann and Peter Lemmond, for the moving party, Her Majesty the Queen;

Jean Teillet and Arthur Pape, for the re­spondents;

Brian Eyolfson, for Aboriginal Legal Ser­vices of Toronto;

Robert MacRae, for the Ontario Métis Aboriginal Association;

Joseph Magnet, for the Congress of Aboriginal Peoples;

Clem Chartier, for the Métis National Council.

This appeal was heard on January 9-11, 2001, before McMurtry, C.J.O., Abella and Sharpe, JJ.A., of the Ontario Court of Ap­peal.

The judgment of the Court of Appeal was delivered by Sharpe, J.A., and released on February 23, 2001.