Her Majesty the Queen v. Powley et al.

[Indexed as: R. v. Powley]

53 O.R. (3d) 35

[2001] O.J. No. 607

Docket No. C34065

Court of Appeal for Ontario

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

February 23, 2001

• Application for extension of time and for leave to cross-appeal to the Supreme Court of Canada was granted March 14, 2002 (Gonthier, Major and Binnie JJ.). S.C.C. File No. 28533. S.C.C. Bulletin, 2002, p. 432.

Charter of Rights and Freedoms -- Aboriginal and treaty rights -- Historic Métis community in and around Sault Ste. Marie has aboriginal right to hunt for food protected by s. 35(1) of Constitution Act, 1982 -- Sections 46 and 47(1) of Game and Fish Act infringe that right -- Infringement not justified -- Dismissal of charges under Game and Fish Act against two Métis accused who shot and killed moose affirmed -- One year stay of judgment granted -- Constitution Act, 1982, s. 35(1) -- Game and Fish Act, R.S.O. 1990, c. G.1, ss. 46, 47(1).

The respondents shot and killed a bull moose in the bush near Sault Ste. Marie but did not have a moose hunting licence. They were charged with hunting and possessing a moose without a licence contrary to ss. 46 and 47(1) of the Game and Fish Act (now the Fish and Wildlife Conservation Act, 1997, S.O. 1997, c. 41). The respondents were direct descendents of the Lesage family, members of the historic Métis community in Sault Ste. Marie. The respondent SP was a registered member of the Ontario Métis and Aboriginal Association ("OMAA") and the Métis Nation of Ontario ("MNO"). The respondent RP did not have an OMAA membership card, but he was listed on SP's application form under the heading: "Identify any children under 18 for whom you wish to apply for Youth Membership".

The respondents claimed that, as members of the historic Métis community, they had an existing aboriginal right to hunt for food without a licence, protected by s. 35 of the Constitution Act, 1982. They did not have status under the Indian Act, R.S.C. 1985, c. I-5, nor did they enjoy any treaty rights. Status Indians in the Sault Ste. Marie area have a treaty right to hunt for food pursuant to the 1850 Robinson- Huron Treaty. The treaty right to hunt for food is recognized in the 1991 Interim Enforcement Policy issued by the Ministry of Natural Resources under the Game and Fish Act. While the Interim Enforcement Policy provides for negotiations for Métis hunting rights, there has been no agreement recognizing Métis rights. The Ontario government has refused to recognize Métis people as having any special access to natural resources.

The trial judge defined Métis as "a person of Aboriginal ancestry; who self-identifies as a Métis; and who is accepted by the Métis community as a Métis". He found that the respondents satisfied that test. He further found that there was a visually, culturally and ethnically distinct Métis community in the area around Sault Ste. Marie that traced its roots to the marriages between French fur traders and indigenous Ojibway women. The trial judge found as a fact that hunting was an integral part of the Métis culture prior to the assertion of effective control by the Crown. He also held that the Métis practice of hunting for food had been continuous to the present, and that there is a contemporary Sault Ste. Marie Métis society that is in continuity with the historic Métis community. He concluded that the respondents had established the necessary ingredients for an aboriginal right to hunt for food within the meaning of s. 35(1) of the Constitution Act, 1982 and that this right was infringed by ss. 46 and 47(1) of the Game and Fish Act. He found that the appellant had failed to justify the infringement of the s. 35 right. Accordingly, the charges were dismissed.

The Superior Court upheld the trial judge's decision and the appellant appealed.

Held, the appeal should be dismissed.

The appellant's motion for leave to introduce fresh evidence on appeal in support of its justification argument was dismissed. The evidence did not meet the due diligence test or could not affect the result.

The constitution formally recognizes the existence of distinct "Métis peoples", who, like the Indian and Inuit, are a distinct and equal subset of the larger class of "aboriginal peoples of Canada". The separate identity of the Métis people must be respected and the recognition of their constitutional rights must be generously interpreted. The rights of one people should not be subsumed under the rights of another. To make Métis rights entirely derivative of and dependent upon the precise pre-contact activities of their Indian ancestors would ignore the distinctive history and culture of the Métis and the explicit recognition of distinct "Métis peoples".

The trial judge did not err in characterizing the right claimed by the respondents as a right to hunt for food, rather than as a game-specific right. To characterize the right in the game-specific terms suggested by the appellant would give undue emphasis to the regulatory concerns of today and pay insufficient attention to the aboriginal perspective. The right to hunt moose was at issue in this case because the regulation of moose hunting was the focus of the statutory prohibition. To insist that the traditional aboriginal practice grounding the modern right must conform precisely to the terms of the modern regulatory regime risked ignoring the aboriginal perspective. There was expert evidence, accepted by the trial judge, that from the aboriginal perspective, the activity was simply hunting.

There was evidence to support the trial judge's findings of fact that the historic Métis community at Sault Ste. Marie engaged in the practice of hunting, and that hunting was an integral part of the Métis culture prior to the assertion of effective control by the European authorities. There may be gaps in continuity of a practice that are not fatal to the establishment of an aboriginal right. Accordingly, there was no basis for interfering with the trial judge's conclusion that the right claimed was a practice exercised by the historic Métis community at Sault Ste. Marie and was integral to the distinct culture of that community.

The trial judge did not err in finding that there exists today a Métis community in continuity with the historic Métis community that continues to exercise the practice grounding the right, and that the respondents are accepted as members of that community. It was open to the trial judge to reject the appellant's assertion that the Métis community merged into Indian bands. The continuity test should be applied with sufficient flexibility to take into account the vulnerability and historic disadvantage of the Métis. The trial judge was entitled to conclude that the Sault Ste. Marie Métis community had suffered as a result of what was at best governmental indifference, and to take the historically disadvantaged situation of the Métis into account when assessing the continuity of their community.

There was evidence to support the trial judge's finding that hunting has continued to be an important aspect of Métis life.

It would be wrong to expect the same type of evidence one might expect in a case asserting the rights of an established Indian band. Métis communities do not have a formal legal structure or organization. They are not recognized under the Indian Act and they have no bodies analogous to band councils that are recognized or funded by the government. They are communities based on history, kinship and shared practices. Proof of membership in such a community is bound to be to a large extent expressionistic. There was evidence of membership in the local Sault Ste. Marie community which was capable of supporting the trial judge's finding that the respondents were accepted as members of the local Métis community.

The appellant led evidence to show that the moose population in the wildlife management unit in which the respondents shot a moose was below what was considered to be a satisfactory level. The respondents did not dispute that conservation is an important objective capable of justifying a limit on s. 35 rights. However, the appellant failed to establish that the right was limited in a manner in keeping with the fiduciary duty of the Crown. The fact that the regulatory scheme failed to accord any recognition or priority to the Métis right was fatal to the contention that the limitation was in keeping with the Crown's trust-like relationship with the Métis people. In relation to other holders of aboriginal rights -- Indians who enjoy a treaty right to hunt -- the current scheme placed Métis rights holders at an obvious disadvantage. The legislative objective of conservation cannot justify this blatant disparity in treatment between the two rights-holders. Moreover, in relation to non-aboriginal hunters, Métis rights holders are given no priority. The failure to attach any weight whatsoever to the aboriginal right flies in the face of the principle that aboriginal food hunting rights are to be accorded priority.

The appellant relied on a secondary objective, described as "the social and economic benefit to the people of Ontario derived through a combination of recreational hunting and non- hunting recreation". This was at a level of such generality that the appellant failed to establish this as a valid legislative objective for the purposes of limiting the s. 35 right.

In argument before the Court of Appeal, the appellant sought to establish the "equitable sharing of resources" as a secondary legislative objective. Assuming, without deciding, that it was open to the appellant to advance this objective at this stage of the proceedings, it should be rejected on two grounds. First, an appeal to equitable sharing, without more, cannot amount to a valid legislative objective if, in fact, what is left of the resource after conservation measures is insufficient to satisfy the aboriginal right to harvest for food. Even if "equitable sharing" does amount to a valid legislative objective, the present scheme cannot be justified as being consistent with the Crown's trust-like duty. It accords no recognition to the Métis right, in stark contrast to the blanket exemption given status Indians. A scheme that creates such an obvious imbalance between rights holders, and gives the Métis no priority over those who have no constitutional right to hunt, cannot be described as "equitable" or in keeping with the Crown's trust-like duty. The trial judge did not err in finding that the Game and Fish Act was not a justified limit on the respondents' s. 35 right to hunt for food.

A stay of this judgment for a period of one year should be granted to allow the appellant to consult with stakeholders and develop a new moose-hunting regime that is consistent with s. 35 of the Constitution Act, 1982.

APPEAL from the judgment of O'Neill J. (2000), 2000 22327 (ON SC), 47 O.R. (3d) 30 dismissing a Crown appeal from a judgment of Vaillancourt J. (1998), 58 C.R.R. (2d) 149 dismissing charges under the Game and Fish Act, R.S.O. 1990, c. G.1.

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