Regina v. Powley [Indexed as: R. v. Powley]

49 O.R. (3d) 94

[2000] O.J. No. 1063

No. M25455

Ontario Court of Appeal

Rosenberg J.A.

(In Chambers)

April 3, 2000

Native law -- Hunting and fishing rights -- Métis -- Two members of Métis community of Sault Ste. Marie charged with unlawfully hunting moose and unlawfully possessing game contrary to ss. 46 and 47(1) of Game and Fish Act -- Members of Métis community of Sault Ste. Marie having aboriginal right to hunt which is protected under s. 35(1) of Constitution Act -- Sections 46 and 47(1) of Game and Fish Act unjustifiably infringing that right -- Charges dismissed -- Constitution Act, 1982, s. 35(1) -- Game and Fish Act, R.S.O. 1990, c. G.1, ss. 46, 47(1).

NOTE: An appeal of the judgment of the the Superior Court of Justice (O'Neill J.), reported at 2000 ON SC 22327, 47 O.R. (3d) 30, to the Court of Appeal for Ontario was granted April 3, 2000. The endorsement of the Court was as follows:

Mark J. Freiman and Peter Lemmond, for the Crown, applicant. Jean Teillet, for respondents. Notes Note 1: Section 35 was raised in Ardoch Algonquin First Nation v. Ontario (1997), 1997 ON CA 2004, 33 O.R. (3d) 735, 148 D.L.R. (4th) 96 (C.A.) but in the result the court did not need to deal with the interpretation of the section.

[1] ROSENBERG J.A. (in Chambers): -- This is an application for special leave to appeal under s. 131 of the Provincial Offences Act, R.S.O. 1990, c. P.33 from the judgment of O'Neill J. [reported (2000), 2000 ON SC 22327, 47 O.R. (3d) 30] dismissing a Crown appeal from the judgment of Vaillancourt Prov. Ct. J. The respondents were charged with offences under ss. 46 and 47 of the Game and Fish Act, R.S.O. 1990, c. G.1 [now Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41]. The offences relate to unlawful hunting of moose and unlawful possession of moose parts. The respondents relied upon an aboriginal right to hunt as Métis protected by s. 35(1) of the Constitution Act, 1982. The trial judge and the provincial offences appeal court judge gave effect to this submission and dismissed the charges.

[2] At the opening of the appeal, counsel for the respondents took a preliminary objection to some of the material filed by the applicant. She argued that the material was filed late, that it was an attempt to contradict evidence adduced at the trial and was, in any event, irrelevant. I indicated that I would permit the applicant to rely upon the material, but if counsel for the respondent required an adjournment, I would grant one. Counsel indicated that she was prepared to proceed. In my view, the material was properly before the court on an application for special leave. This was not an attempt to adduce fresh evidence or to contradict the trial evidence. The material was directed to the issue of whether it was essential in the public interest that leave be granted.

[3] In my view, this is a proper case to grant leave to appeal. The applicant has raised a number of important questions of law concerning the interpretation of s. 35(1) of the Constitution Act as it applies to the Métis people. These are matters of first impression in this court and, apparently, in any appellate court [See Note 1 at end of document]. In R. v. Van der Peet, 1996 ON SCC 216, [1996] 2 S.C.R. 507 at p. 558, 137 D.L.R. (4th) 289, Lamer C.J.C. wrote as follows:

Although s. 35 includes the Métis within its definition of "aboriginal peoples of Canada", and thus seems to link their claims to those of other aboriginal peoples under the general heading of "aboriginal rights", the history of the Métis, and the reasons underlying their inclusion in the protection given by s. 35, are quite distinct from those of other aboriginal peoples in Canada. As such, the manner in which the aboriginal rights of other aboriginal peoples are defined is not necessarily determinative of the manner in which the aboriginal rights of the Métis are defined. At the time when this Court is presented with a Métis claim under s. 35 it will then, with the benefit of the arguments of counsel, a factual context and a specific Métis claim, be able to explore the question of the purposes underlying s. 35's protection of the aboriginal rights of Métis people, and answer the question of the kinds of claims which fall within s. 35(1)'s scope when the claimants are Métis. The fact that, for other aboriginal peoples, the protection granted by s. 35 goes to the practices, customs and traditions of aboriginal peoples prior to contact, is not necessarily relevant to the answer which will be given to that question. It may, or it may not, be the case that the claims of the Métis are determined on the basis of the pre-contact practices, customs and traditions of their aboriginal ancestors; whether that is so must await determination in a case in which the issue arises.

(Emphasis added)

[4] The respondents have now raised the question of how s. 35(1) applies to the Métis and in my view it is appropriate for this court to deal with the issue. There is a full record in the courts below and both the trial judge and the appeal judge have written careful and extensive reasons for judgment. These reasons include a number of issues of great importance to the public and to the Métis people.

[5] In her submissions, Ms. Teillet made a powerful argument against granting leave. She noted that the courts have repeatedly urged the parties to resolve aboriginal rights issues through negotiation without resort to the courts. She urges me to put an end to the court process in this case to compel the Government of Ontario to resolve these difficult issues through negotiation rather than prosecution. She submits that the trial judge and the appeal judge came to the correct conclusion and there is no need for any further appeals. She also points out that there has been a lengthy delay in dealing with these charges, which date back to 1993.

[6] I do not doubt the sincerity of these submissions, nor the frustration that the respondents and Métis people may feel because of their perception of the Government's position in this and other cases. I also appreciate their concerns about further delay in view of the clear and emphatic terms in which both courts recognized and dealt with their rights under s. 35(1). I am also conscious of the trial judge's comment that any single prosecution cannot resolve all of these complex matters and that the broad issues of the entitlement of the Métis people under s. 35(1) can only be fully dealt with in the political arena.

[7] While I am sympathetic to the concerns raised by Ms. Teillet, it is my view that they do not outweigh the public interest in granting leave to appeal.

[8] I am also satisfied that the grounds of appeal sought to be argued raise questions of law alone and are therefore matters upon which special leave to appeal may be granted.

[9] Accordingly, leave to appeal is granted.