R. v. Powley (S.) et al., (2003) 177 O.A.C. 201 (SCC)

• Judge: McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.
• Court: Supreme Court (Canada)
• Case Date: September 19, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 177 O.A.C. 201 (SCC);2003 SCC 43;125 ACWS (3d) 1;[2003] SCJ No 43 (QL);JE 2003-1751;177 OAC 201;110 CRR (2d) 92;177 CCC (3d) 193;[2003] 4 CNLR 321;308 NR 201;[2003] ACS no 43;230 DLR (4th) 1;68 OR (3d) 255;[2003] 2 SCR 207;58 WCB (2d) 348;5 CELR (3d) 1

R. v. Powley (S.) (2003), 177 O.A.C. 201 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2003] O.A.C. TBEd. SE.091

Her Majesty The Queen (appellant) v. Steve Powley and Roddy Charles Powley (respondents) and Attorney General of Canada, Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of Manitoba, Attorney General of British Columbia, Attorney General for Saskatchewan, Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Labrador Métis Nation, a body corporate, Congress of Aboriginal Peoples, Métis National Council, Métis Nation of Ontario, B.C. Fisheries Survival Coalition, Aboriginal Legal Services of Toronto Inc., Ontario Métis Aboriginal Association, Ontario Federation of Anglers and Hunters, Métis Chief Roy E.J. DeLaRonde, on behalf of the Red Sky Métis Independent Nation and North Slave Métis Alliance (intervenors)

(28533; 2003 SCC 43; 2003 CSC 43)

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

Supreme Court of Canada

McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ.

September 19, 2003.

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.

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 correctly found 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, in a judgment reported (2001), 141 O.A.C. 121, dismissed the appeal. The court 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. The Crown appealed. The accused cross-appealed the decision to stay the order for one year.

The Supreme Court of Canada dismissed the appeal, stating that "members of the Métis community in and around Sault Ste. Marie have an aboriginal right to hunt for food under s. 35(1). This is determined by their fulfilment of the requirements set out in Van der Peet, modified to fit the distinctive purpose of s. 35 in protecting the Métis." The court also dismissed the cross-appeal, as the Court of Appeal did not err in exercising its jurisdiction to grant a one year stay of the judgment.

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - The Ontario Court of Appeal affirmed that ss. 46 and 47(1) of the Game and Fish Act unjustifiably infringed the Métis right to hunt for food as protected by s. 35(1) of the Constitution Act, 1982, but stayed its decision for one year - The Supreme Court of Canada stated that it was "within the Court of Appeal's discretion to suspend the application of its ruling to other members of the Métis community in order to foster cooperative solutions and ensure that the resource in question was not depleted in the interim, thereby negating the value of the right" - The court reaffirmed that the jurisdiction to stay a court's decision was a power to be exercised only in exceptional situations in which a court of general jurisdiction deemed that giving immediate effect to an order would undermine the very purpose of that order or threaten the rule of law - See paragraph 51.

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 unlawfully hunting moose without a licence - The accused were acquitted on the basis of an aboriginal right to hunt protected by s. 35(1) of the Constitution Act - 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, 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 the accused were members of that community - Sections 46 and 47(1) unjustifiably infringed the Métis right to hunt for food, where the province's regulatory scheme accorded no recognition or priority to the Métis - The Supreme Court of Canada, modifying the pre-contact focus of the Van der Peet test to account for the differences between Indian and Métis claims, affirmed that members of the Métis community in and around Sault Ste. Marie had an aboriginal right to hunt for food under s. 35(1) - Aboriginal hunting rights, including Métis rights, were contextual and site-specific - The court rejected the theory that Métis rights must find their origin in the pre-contact practices of the Métis' aboriginal ancestors - The appropriate time frame was accommodated by "a post contact but pre-control test that identifies the time when Europeans effectively established political and legal control in a particular area" - See paragraphs 9 to 54.

Indians, Inuit and Métis - Topic 2.1

General - Métis defined - The Supreme Court of Canada stated that "the term 'Métis' in s. 35 does not encompass all individuals with mixed Indian and European heritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and European forbears. ... A Métis community can be defined as a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life. ... the claimant must self-identify as a member of a Métis community. ... Second, the claimant must present evidence of an ancestral connection to a historic Métis community. ... Third, the claimant must demonstrate that he or she is accepted by the modern community whose continuity with the historic community provides the legal foundation for the right being claimed." - See paragraphs 10 to 33.

Indians, Inuit and Métis - Topic 806

Personal or legal rights - General - Métis - [See Fish and Game - Topic 847 ].

Indians, Inuit and Métis - Topic 6012

Aboriginal rights - General - Evidence and proof - [See Fish and Game - Topic 847 ].

Cases Noticed:

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, appld. [para. 14].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 48].

Manitoba Language Rights Reference, Re, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 51].

Statutes Noticed:

Constitution Act, 1982, sect. 35 [para. 9, Appendix A].

Game and Fish Act, R.S.O. 1990, c. G-1, sect. 46, sect. 47(1) [Appendix A].

Authors and Works Noticed:

Canada, Royal Commission on Aboriginal Peoples, Report of the Royal Commission on Aboriginal Peoples: Perspectives and Realities (1996), vol. 4, pp. 199, 200, 202 [para. 10].

Lytwyn, Victor P., Historical Report on the Métis Community at Sault Ste. Marie (1998), pp. 2 [paras. 22, 43]; 4, 5 [para. 43]; 6 [paras. 41, 43]; 29 [para. 39]; 31 [para. 25]; 32, 33 [para. 26].

Morrison, James, The Robinson Treaties of 1850: A Case Study (1998), p. 201 [para. 25].

Peterson, Jacqueline, Many roads to Red River: Métis genesis in the Great Lakes region, 1680-1815, in The New Peoples: Being and Becoming Métis in North America (1985), pp. 41 [para. 42]; 400 [para. 29].

Ray, Arthur J., An Economic History of the Robinson Treaties Area before 1860 (1998), pp. 17, 47, 51 to 53 [para. 21]; 56 [paras. 22, 43].

Counsel:

Lori R. Sterling and Peter Lemmond, for the appellant/respondent on cross-appeal;

Jean Teillet and Arthur Pape, for the respondents/appellants on cross-appeal;

Ivan G. Whitehall, Q.C., Michael H. Morris and Barbara Ritzen, for the intervenor, Attorney General of Canada;

René Morin, for the intervenor, Attorney General of Quebec;

Gabriel Bourgeois, Q.C., and Pierre Castonguay, for the intervenor, Attorney General of New Brunswick;

Deborah L. Carlson and Holly D. Penner, for the intervenor, Attorney General of Manitoba;

Darlene A. Leavitt, for the intervenor, Attorney General of British Columbia;

P. Mitch McAdam, written submissions only for the intervenor, Attorney General for Saskatchewan;

Margaret Unsworth and Kurt Sandstrom, for the intervenor, Attorney General of Alberta;

Donald H. Burrage, Q.C., for the intervenor, Attorney General of Newfoundland and Labrador;

D. Bruce Clarke, for the intervenor, Labrador Métis Nation;

Joseph Eliot Magnet, for the intervenor, Congress of Aboriginal Peoples;

Clem Chartier and Jason T. Madden, for the intervenors, Métis National Council and Métis Nation of Ontario;

J. Keith Lowes, written submissions only for the intervenor, B.C. Fisheries Survival Coalition;

Brian Eyolfson, written submissions only for the intervenor, Aboriginal Legal Services of Toronto Inc.;

Robert MacRae, for the intervenor, Ontario Métis Aboriginal Association;

Timothy S.B. Danson, written submissions only for the intervenor, Ontario Federation of Anglers and Hunters;

Alan Pratt and Carla M. McGrath, for the intervenor, Métis Chief Roy E.J. DeLaRonde, on behalf of the Red Sky Métis Independent Nation;

Janet L. Hutchison, written submissions only for the intervenor, North Slave Métis Alliance.

Solicitors of Record:

Ministry for the Attorney General of Ontario, Toronto, Ontario, for the appellant/respondent on cross-appeal;

Pape & Salter, Vancouver, B.C., for the respondents/appellants on cross-appeal;

Attorney General of Canada, Ottawa, Ontario, for the intervenor, Attorney General of Canada;

Attorney General of Quebec, Sainte-Foy, Quebec, for the intervenor, Attorney General of Quebec;

Attorney General of New Brunswick, Fredericton, New Brunswick, for the intervenor, Attorney General of New Brunswick;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervenor, Attorney General of Manitoba;

Attorney General of British Columbia, Victoria, British Columbia, for the intervenor, Attorney General of British Columbia;

Deputy Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervenor, Attorney General for Saskatchewan;

Alberta Justice, Edmonton, Alberta, for the intervenor, Attorney General of Alberta;

Attorney General of Newfoundland and Labrador, St. John's, Newfoundland and Labrador, for the intervenor, Attorney General of Newfoundland and Labrador;

Burchell Green Hayman Parish, Halifax, Nova Scotia, for the intervenor, Labrador Métis Nation;

Joseph Eliot Magnet, Ottawa, Ontario, for the intervenor, Congress of Aboriginal Peoples;

Métis National Council, Ottawa, Ontario, for the intervenors, Métis National Council and Métis Nation of Ontario;

J. Keith Lowes, Vancouver, British Columbia, for the intervenor, B.C. Fisheries Survival Coalition;

Aboriginal Legal Services of Toronto Inc., Toronto, Ontario, for the intervenor, Aboriginal Legal Services of Toronto Inc.;

Robert MacRae, Sault Ste. Marie, Ontario, for the intervenor, Ontario Métis Aboriginal Association;

Danson, Recht & Freedman, Toronto, Ontario, for the intervenor, Ontario Federation of Anglers and Hunters;

Alan Pratt, Dunrobin, Ontario, for the intervenor, Métis Chief Roy E.J. DeLaRonde, on behalf of the Red Sky Métis Independent Nation;

Chamberlain Hutchison, Edmonton, Alberta, for the intervenor, North Slave Métis Alliance.

This appeal and cross-appeal were heard on March 17, 2003, before McLachlin, C.J.C., Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel and Deschamps, JJ., of the Supreme Court of Canada.

On September 19, 2003, the following judgment was delivered in both official languages by the Court.