Court of Appeal for Saskatchewan  
Citation: R v Boyer, 2022 SKCA 62  
Date: 2022-05-31  
Docket: CACR3352  
Between:  
Warren Boyer  
Appellant  
And  
Her Majesty the Queen  
Respondent  
Intervenors  
And  
Métis National Council and  
Manitoba Métis Federation Inc.  
Docket: CACR3351  
Between:  
Oliver Poitras  
Appellant  
And  
And  
Her Majesty the Queen  
Respondent  
Métis National Council and  
Manitoba Métis Federation Inc.  
Intervenors  
Before:  
Jackson, Whitmore and Kalmakoff JJ.A.  
Leave to appeal granted, appeal allowed  
Disposition:  
Written reasons by:  
In concurrence:  
The Honourable Madam Justice Jackson  
The Honourable Mr. Justice Whitmore  
The Honourable Mr. Justice Kalmakoff  
On appeal from:  
Appeal heard:  
Counsel:  
CRM 5 of 2019 and CRM 6 of 2019 (QB), Battleford  
May 3, 2021  
Kathy Hodgson-Smith and Clément Chartier, Q.C., for the Appellants  
James Fyfe for the Respondent  
Audrey Mayrand and Ronald Stevenson for the Intervenors  
Page 1  
Jackson J.A.  
I.  
Introduction  
[1]  
These appeals present the Court with its first opportunity to consider the extent to which  
the Métis can claim a right to hunt and fish for food under s. 35(1) of the Constitution Act, 1982.  
The Courts decision will have significant implications for the Métis peoples of Saskatchewan.  
[2]  
The immediate background to the appeals may be briefly stated. Billy Myette, Warren  
Boyer and Oliver Poitras, who are all Métis, were charged with unlawfully hunting or fishing for  
food, i.e., harvesting, contrary to wildlife and fisheries regulations. They were harvesting near land  
that had been previously described as constituting the historic Métis community of Northwest  
Saskatchewanor HMCONWS: R v Laviolette, 2005 SKPC 70 at para 57, 267 Sask R 291  
[Laviolette].  
[3]  
By way of a defence, the three accused, who were tried jointly, served notices of  
constitutional question upon the Crown. The notices asserted that they had an existing Aboriginal  
right to hunt and fish for food and that this right is protected by s. 35(1) of the Constitution Act,  
1982. As part of their assertion, they claimed that the HMCONWS encompasses considerably  
more land than what Laviolette describes and, indeed, includes a right to hunt and fish for food in  
vast tracts of the province, which could extend to the whole of it.  
[4]  
The basis of their claim is that, when European control was first exerted over the territory  
that is now Saskatchewan, the Métis were a migratory people, hunting and fishing according to  
their needs wherever they found themselves, and that this right continues. They sought to prove  
that the wildlife and fisheries regulations, under which they were charged, are unconstitutional as  
against them as being contrary to the Aboriginal rights preserved for them by s. 35(1).  
[5]  
Partway through the trial, the Crown brought an application to strike the notices of  
constitutional question. In its motion, the Crown submitted that Aboriginal rights can be claimed  
under s. 35 on a site-specific basis only and not on a large geographical or province-wide basis.  
In support, the Crown relied on R v Powley, 2003 SCC 43, [2003] 2 SCR 207 [Powley].  
Messrs. Myette, Boyer and Poitras argued that the Crowns interpretation of Powley should not be  
adopted.  
Page 2  
[6]  
The trial judge accepted the Crowns submissions regarding Powley. He held that Métis  
harvesting rights are to be considered on a site-specific basis, using a regional approach.  
Accordingly, he narrowed the s. 35(1) defence to the areas of the province where the accused had  
been hunting and fishing on the day they were charged: R v Boyer (25 April 2016) Prince Albert,  
7457911 (Sask PC) [Mid-Trial Ruling].  
[7]  
The effect of the Mid-Trial Ruling was to prevent the consideration of evidence and  
argument directed to the question of whether the migratory and nomadic nature of the Métis  
peoples would permit a harvesting claim over the whole of the province or a large segment of it,  
even as a defence to the particular charge of harvesting where the accused had been hunting and  
fishing.  
[8]  
In his trial decision, the trial judge acquitted Mr. Myette and convicted Mr. Boyer and  
Mr. Poitras: R v Boyer, 2018 SKPC 70 [Trial Decision]. The trial judge found that the area where  
Mr. Myette was hunting was indistinguishable from what had previously been declared to  
constitute the HMCONWS in Laviolette, but that the HMCONWS did not include the land where  
Mr. Boyer and Mr. Poitras had been harvesting.  
[9]  
Mr. Boyer and Mr. Poitras appealed their convictions to the Court of Queens Bench. Their  
appeals were dismissed: R v Boyer (10 February 2020) Battleford, CRM 6 of 2019 and CRM 5 of  
2019 (Sask QB) [QB Decision].  
[10] Mr. Boyer and Mr. Poitras now apply for leave to appeal the QB Decision and appeal to  
this Court. Among other grounds, Mr. Boyer and Mr. Poitras appeal on the basis that the summary  
conviction appeal judge erred by not finding that the trial judge misinterpreted Powley; and, as a  
result, his Mid-Trial Ruling denied them the right to make full answer and defence. The Crown  
concedes that the appeal raises questions of law of sufficient importance such that leave should be  
granted.  
[11] In an earlier ruling, the Métis National Council and the Manitoba Métis Federation Inc.  
[intervenors] were granted intervenor status: R v Poitras (30 April 2021) Regina, CACR3352 and  
CACR3351 (Sask CA).  
Page 3  
[12] I have concluded that the appeals must be allowed and a new trial ordered. As an  
overarching consideration, the claim before the Court is for a broad territorial right based on the  
nomadic nature of the Métis peoples. The claim before the Court is not resolvable by narrowing it  
to the actual sites where harvesting had occurred. Mr. Boyers and Mr. Poitrass assertion of a s. 35  
right must be addressed on its terms. To do otherwise would ignore their right to make full answer  
and defence.  
[13] The fundamental basis of my reasoning is that I do not interpret Powley, and the related  
jurisprudence, as precluding Mr. Boyer and Mr. Poitras from attempting to prove an Aboriginal  
harvesting claim that would encompass a large tract of the province or indeed the whole of it as  
the basis of a defence to the charges against them. This Court, however, is not in a position to make  
the findings of fact necessary to determine the validity of such a claim, which means a new trial  
must be ordered.  
II. Laviolette  
A.  
The importance of Laviolette  
[14] It is unusual to begin the background to a decision by examining an earlier one. However,  
Laviolette is important to the Courts analysis on this occasion for four reasons.  
[15] First, the trial judge in Laviolette was also the judge in the within trial. He agreed to admit  
all of the historical evidence from the Laviolette trial as evidence in the trial of Messrs. Myette,  
Boyer and Poitras.  
[16] Second, Laviolette is the first decision in this province to recognize formally within the  
boundaries of Saskatchewan the existence of a historic Métis community in what was known, prior  
to the creation of the provinces of Saskatchewan and Alberta, as the Northwest.  
[17] Third, the HMCONWS, acknowledged in Laviolette, formed the starting point of the  
s. 35(1) claim of Messrs. Myette, Boyer and Poitras. Their position at trial was that the  
HMCONWS does not represent the whole of the traditional territory of the Métis.  
Page 4  
[18] Fourth, the area of Saskatchewan where Messrs. Myette, Boyer and Poitras were harvesting  
is near where Ron Laviolette was fishing for food, which means Laviolette provides important  
context for the present appeals.  
[19] In Laviolette, Mr. Laviolette had been ice fishing out of season on Green Lake,  
Saskatchewan. He was charged with unlawfully angling during a closed time contrary to s. 13(1)  
of The Fisheries Regulations, RRS c F-16.1 Reg 1. He claimed as his defence an Aboriginal right  
that was protected by s. 35(1) of the Constitution Act, 1982, to fish for food.  
[20] The Crown conceded that a historic Métis community existed at Green Lake by 1870”  
(Laviolette at para 38). However, Mr. Laviolette did not live at Green Lake. He resided at Flying  
Dust First Nation near Meadow Lake. Thus, the issue was whether the historic Métis community  
includes a larger area and, in particular, Meadow Lake(at para 21). The trial judge found that  
such a community existed and continues to the present and that Mr. Laviolette is a member of it.  
The trial judge acquitted Mr. Laviolette on the basis that his s. 35(1) right to fish for food was  
infringed by being prevented from fishing out of season without justification. The Crown did not  
appeal.  
[21] In this section, I will review those aspects of the reasons in Laviolette that have particular  
significance to the appeals presently before the Court.  
B.  
Trial reasoning in Laviolette  
1.  
A historic rights-bearing community existed in northwest  
Saskatchewan  
[22] In Laviolette, the trial judge found that a historic rights-bearing community, generally  
defined as the triangle of the fixed communities of Green Lake, Île à la Crosse and Lac La Biche  
and includes all of the settlements within and around the triangle including Meadow Lake, existed  
in northwest Saskatchewan (at para 30). More particularly, the trial judge in Laviolette described  
the HMCONWS as follows:  
[27] The evidence showed a regional network of relationships in the triangle created in and  
around the fixed settlements of Lac La Biche, Île à la Crosse and Green Lake. It also  
showed that there were strong kinship ties between these three fixed settlements and that  
the Métis intermarried and moved between these settlements over time. In addition to the  
fixed settlements, there were many other settlements within and around the three fixed  
Page 5  
settlements and along the transportation routes that connected them together. The  
transportation corridor, with its southeasterly hub at Green Lake, was important because it  
was the access route into the Mackenzie District, a storehouse of plenty and rich in furs.  
(Thornton Transcript, pp. 982985 and Exhibit D-17 at p. 5; Tough Exhibits D-22 and  
D-26).  
[28] The evidence showed that while these fixed settlements were important historic Métis  
settlements, the Métis were highly mobile. They moved often and travelled far and wide  
for food, trapping and work. They moved frequently between the fixed settlements and  
between the settlements within a given region.  
[29] The evidence showed that Meadow Lake is also an historic Métis settlement and that  
it was begun by Cyprien Morin, a Métis from Green Lake. (Tough Transcript, pp. 1412–  
1413, 1425 and 1435). The evidence showed there are substantial and continuing family  
connections between the Métis living in the settlement of Green Lake and those living in  
the settlement at Meadow Lake (Tough Transcript at pp. 1413 1425 and Exhibit D-32).  
[30] I find that the evidence led at this trial contains sufficient demographic information,  
proof of shared customs, traditions and collective identity to support the existence of a  
regional historic rights-bearing Métis community, which regional community is generally  
defined as the triangle of the fixed communities of Green Lake, Île à la Crosse and Lac La  
Biche and includes all of the settlements within and around the triangle including Meadow  
Lake.  
(Emphasis added)  
2.  
A contemporary rights-bearing community continues to exist  
[23] The trial judge in Laviolette also found that a contemporary rights-bearing community with  
far-reaching links to other parts of Saskatchewan and to other provinces continues to exist:  
[35] I conclude that the evidence shows that the communityhas continued to exist up to  
and including the time of the offence. Evidence showed that Métis lived in Green Lake  
since approximately 1786, that there was a Métis settlement at the Green Lake Post by at  
least 1820 and that they have always been connected to other Métis settlements in the area  
I have found to be the community. Evidence also showed the continuing contemporary  
connections between Meadow Lake and Green Lake, including family connections  
between the two settlements, and that the area between the two settlements is populated by  
Métis (Exhibit D-32).  
[36] The evidence showed that Métis families moved between Meadow Lake and Green  
Lake and other Métis settlements in the community, that significant Métis populations  
continue to exist at Green Lake and Meadow Lake and other settlements within the  
community, and that extensive kinship connections exist between Île à la Crosse, Buffalo  
Narrows, Beauval, Jackfish Lake, Jans Bay, Pinehouse, Patuanak, Turnor Lake, Victoire,  
St. Georges Hill, Michel Village, Duck Lake, La Loche, Keeley Lake, Canoe Lake,  
Smooth Stone, Kikino (Alberta), Dore Lake, Lac La Biche (Alberta), and Red River  
Settlement (Manitoba).  
[37] Given the extensive connections between the various communities that presently exist,  
and have continued to exist, I find that the contemporary rights-bearing community is best  
described as the Métis community that now lives and uses northwestern Saskatchewan and  
includes the settlements of Green Lake and Meadow Lake.  
Page 6  
3.  
Date of effective control is set at 1912 in Laviolette  
[24] The trial judge in Laviolette described what is meant by effective control for the purposes  
of determining the existence of Métis rights in these terms:  
[39] In Powley, the Supreme Court of Canada held that the test looks to the time when  
Europeans effectively established political and legal control in a particular area. I agree  
with the argument advanced on behalf of Mr. Laviolette that effective control takes place  
when the Crowns activity has the effect of changing the traditional lifestyle and the  
economy of the Métis in a given area.  
[25] The defence called Dr. Frank Tough and Mr. John Thornton to give evidence regarding the  
date of effective control; the Crown did not lead any expert evidence on that point but did concede  
that a Métis community was present in the HMCONWS by 1870. It was the Crowns position that  
the date of effective control was 1870, being the date when Ruperts Land became part of Canada”  
(at para 38). The trial judge did not accept this date.  
[26] Relying on the defence experts, he determined that no real change in lifestyle took place in  
the area until 1912, when the Department of the Interior established townships and set aside two  
on either side of Green Lake(at para 41). This was also when the Métis registered their land  
claims under the new land system(at para 41). With these two findings as the factual  
underpinning, the trial judge held that the date of effective control was 1912.  
4.  
Acquittal of Mr. Laviolette  
[27] In acquitting Mr. Laviolette, the trial judge stated, Having concluded that Mr. Laviolette  
has a Métis Aboriginal Right to fish for food, I declare that Mr. Laviolette, as a Métis member of  
the Métis community of northwest Saskatchewan, which includes Green Lake and Meadow Lake,  
has a right to fish for food within that Métis communitys traditional territory(at para 57).  
III. Background to the trial of Messrs. Myette, Boyer and Poitras  
A.  
The charges  
[28] On November 30, 2013, Mr. Myette was charged with hunting for food near Rush Lake  
Fireguard Road, which is approximately 1 km west of the south end of Green Lake. He asserted  
that he was hunting within his traditional territory. Mr. Myette was charged under s. 25(1)(b) of  
The Wildlife Act, 1998, SS 1998, c W-13.12 [The Wildlife Act].  
Page 7  
[29] Approximately four months later, Mr. Boyer, who is also Métis, was fishing for food on  
Chitek Lake, which is located approximately 60 km southeast of Meadow Lake, Saskatchewan.  
He was charged on March 27, 2014, with unlawfully fishing, contrary to s. 11(1) of The Fisheries  
Regulations.  
[30] On November 16, 2012, Mr. Poitras, who is Métis, was hunting for food near Sundance  
Fireguard Road, in an area referred to as Jackfish Lake and Alcott Road, which is approximately  
37 km south of Meadow Lake, Saskatchewan. He was charged with unlawfully hunting contrary  
to s. 25(1)(b) of The Wildlife Act.  
[31] The parties agreed, in a statement of facts filed for that purpose, that Messrs. Myette, Boyer  
and Poitras were harvesting just outside the boundaries of what had previously been declared in  
Laviolette to be the HMCONWS.  
B.  
Notices of constitutional question  
[32] As the proceedings progressed, the three accused each served individual notices of  
constitutional question upon the Crown, asserting as part of their defence an Aboriginal right to  
hunt and fish for food, as protected by s. 35(1) of the Constitution Act, 1982:  
PART II  
PARTIE II  
Rights of the Aboriginal Peoples of Canada  
Recognition of existing aboriginal and treaty  
rights  
Droits des peuples autochtones du Canada  
Confirmation des droits existants des peuples  
autochtones  
35(1) The existing aboriginal and treaty rights of  
the aboriginal peoples of Canada are hereby  
recognized and affirmed.  
35(1) Les droits existants ancestraux ou issus  
de traités des peuples autochtones du Canada  
sont reconnus et confirmés.  
Definition of aboriginal peoples of Canada  
(2) In this Act, aboriginal peoples of Canada  
includes the Indian, Inuit and Métis peoples of  
Canada.  
Définition de peuples autochtones du Canada  
(2) Dans la présente loi, peuples autochtones du  
Canada sentend notamment des Indiens, des  
Inuit et des Métis du Canada.  
[33] The notices of constitutional questions were amended three times, resulting in what is  
referred to in the record as the Amended Amended Notices of Constitutional Question, which I  
will refer to as simply notices of constitutional question.  
Page 8  
[34] In the final notices of constitutional question, each of Messrs. Myette, Boyer and Poitras  
raised similar questions: Is section 11(1) of The Fisheries Regulations, R.R.S., c. F-16.1, Reg. 1,  
as amended, applicable to the Defendant, by virtue of s. 52 of the Constitution Act, 1982, and his  
Aboriginal right to hunt within s. 35(1) of the Constitution Act, 1982, as invoked by the  
Defendant?.  
[35] As part of their notices of constitutional question, they each described the nature of their  
defence. As all accused raised the same rights in the same terms, I will quote from Mr. Boyers  
notice only. He asserted the following as the material facts underlying his claim:  
The Material Facts Giving Rise to the Constitutional Issues to be Raised at Trial:  
1. The Métis Nation is one of the aboriginal peoples of Canadawithin the meaning of  
s. 35(2) of the Constitution Act, 1982. The people of the Métis Nation live in, use and  
occupy a territory that spans the three Prairie Provinces (Manitoba, Saskatchewan and  
Alberta) and extends into a contiguous part of British Columbia, Ontario, the Northwest  
Territories and the northern United States.  
2. The Métis historically were a highly mobile people engaging in the fur trade, the buffalo  
hunts and freighting through the many cart trails and waterways across the Métis homeland.  
3. The Métis Nation Saskatchewan (MNS) represents the citizens of the Métis Nation  
living in, using and occupying Saskatchewan. The Defendant is a member of the  
contemporary rights-bearing Métis community that lives in, uses, and occupies what is now  
known as Saskatchewan, and includes, north, central, and southern Saskatchewan. This  
rights-bearing Métis community has always harvested and continues to harvest throughout  
its traditional territory, which includes the area in, around and between Green Lake and  
Morin Lake (Victoire), as well as northeast Alberta and southern Manitoba. This  
contemporary Métis rights-bearing community continues to be a highly mobile  
community.  
4. The Defendant self-identifies as Métis, is ancestrally connected to the historic rights-  
bearing Métis community in Saskatchewan, which includes north, central, and southern  
Saskatchewan, as well as northeast Alberta and southern Manitoba and has been accepted  
as a member of that Métis community. This Defendant asserts that he is a Métis within  
s. 35(2) of the Constitution Act, 1982.  
5. This Defendant participates in his Métis culture, by among other things, exercising his  
Aboriginal right to harvest for food, social and ceremonial purposes. On March 27, 2014,  
this Defendant, while exercising his Métis harvesting right when fishing on Chitek Lake,  
located about 60 km southeast of Meadow Lake and approximately 2530 km directly  
south of the most southerly end of Green Lake, which lake and hamlet lie adjacent to the  
historic CarltonGreen Lake Trail, within the Province of SK, was charged with unlawfully  
fishing contrary to section 11(1) of The Fisheries Regulations, R.R.S., c. F-16.1, Reg. 1,  
as amended.  
Page 9  
6. Numerous documents to be presented at trial through expert witnesses address the fact  
that Métis were included within the term Indianor Indiansfrom at least the Royal  
Proclamation of 1763 to the mid-1900s, including s. 91(24) of the Constitution Act, 1867,  
the 1870 Rupertsland [sic] Order and paragraph 12 of the NRTA 1930 entered into between  
the federal government and the Province of Saskatchewan.  
[36] He described the legal basis of his claim thusly:  
The Legal Basis for the Constitutional Question  
1. The Saskatchewan Métis community, which includes north, central and southern  
Saskatchewan, is represented by the Métis Nation Saskatchewan (MNS), which in turn  
is part of the Métis Nation. The Métis Nation is one of the aboriginal peoples of Canada”  
within the meaning of s. 35(2) of the Constitution Act, 1982.  
2. Aboriginal rights are collective rights. The Saskatchewan Métis community which  
includes north, central and southern Saskatchewan has Aboriginal harvesting rights within  
its traditional territory that are recognized and affirmed by s. 35(1) of the Constitution Act,  
1982.  
3. The Aboriginal harvesting rights of the rights-bearing Métis community in  
Saskatchewan which includes north, central and southern Saskatchewan have never been  
extinguished and are therefore existing Aboriginal rights within the meaning of s. 35(1) of  
the Constitution Act, 1982. … Fishing for food was and continues to be an integral part of  
the distinct culture of the Métis.  
6. It is the Defendants position that he has historic and on-going connections within the  
area described as northwest Saskatchewan in Laviolette, and in any event, that his hunting  
activity falls within the protections provided by virtue of s. 35(1) of the Constitution Act  
1982. It is the Defendants further position that he has mobility rights within the traditional  
homeland.  
7. The MNS is the democratically elected political body that represents the Métis Nation  
in Saskatchewan. As the representative body for the Saskatchewan Métis, the MNS is  
mandated to ensure the Métis harvest is conducted in an orderly manner that respects safety  
and conservation principles.  
[37] In short, as members of the Métis nation of Saskatchewan, the three accused claimed the  
right to harvest for food throughout the whole of Saskatchewan, as a defence to the charges against  
them. Specifically, they claimed an ancestral connection with the historic rights-bearing Métis  
community in Saskatchewan, which includes north, central, and southern Saskatchewan, as well  
as northeast Alberta and southern Manitoba. If successful, this would extend the HMCONWS to  
the whole of the province or potentially significant tracts of it.  
Page 10  
[38] As part of their notices of constitutional question, the three accused also defended the  
summary conviction charges against them on the basis that they have a right to hunt and fish for  
food as Indians under paragraph 12 of the Natural Resources Transfer Agreement, being Schedule  
3 to the Constitution Act, 1930 (UK), 20-21 Geo V, c 26, reprinted in RSC 1985, App II, No 26  
[NRTA]. Paragraph 12 affirms the authority of the province to regulate hunting for conservation  
purposes but permits harvesting by Indians on unoccupied Crown lands and lands where they have  
a right of access: R v Blais, 2003 SCC 44 at para 13, [2003] 2 SCR 236 [Blais].  
C.  
The trial and the Crowns motion to strike the notices of constitutional  
question  
[39] As mentioned, the Crown and the defence agreed that all of the historical evidence from  
the Laviolette trial would be admitted in the trial of Messrs. Myette, Boyer and Poitras. This  
included the testimony of 19 Métis community witnesses, who detailed their genealogies and  
harvesting practices, and the testimony of two defence expert historians and a genealogist. The  
Court also received other voluminous documentary evidence from Laviolette.  
[40] The Crown called one expert historian, Dr. Clint Evans, and two government officials. The  
facts of the offences were essentially uncontested. All three accused had been hunting and fishing  
contrary to the legislation and regulations previously identified.  
[41] After hearing from the Crown witnesses, the defence called 41 witnesses these were in  
addition to those called in Laviolette. Some of these witnesses were family members and other  
Métis people from northwest Saskatchewan. Eighteen witnesses were residents of British  
Columbia, Alberta, Manitoba and southern Saskatchewan. The defence also called a genealogist,  
Dr. Brenda Macdougall, who provided her general observations on familial connections between  
Métis people in Saskatchewan.  
[42] After the trial judge had heard from the 41st witness, the Crown filed a notice of motion  
asking for an order striking, in whole or in part, the notices of constitutional question on the  
following principal bases:  
2. The Notices characterize the rights at issue and the alleged Métis community contrary  
to the test articulated by the Supreme Court of Canada in R v Powley [2003] 2 SCR 207.  
In particular,  
Page 11  
a. The Respondents characterize the community at issue as spanning western  
Canada from Ontario to British Columbia. This one-Nation theory is contrary to  
the Supreme Courts decision in R v Powley, supra, and subsequent case law; and,  
b. The Respondents characterize the rights at issue as being exercisable throughout  
Saskatchewan, northeastern Alberta and southern Manitoba, which is contrary to  
the site-specific nature of Aboriginal rights stated by the Supreme Court in R v  
Adams [1996] 3 SCR 101, R v Cote [1996] 3 SCR 139, R v Sappier and Gray  
[2006] 2 SCR 686 and reaffirmed in Powley, supra, and subsequent case law;  
3. The Respondentscharacterization of both the community and the rights at issue has  
been specifically rejected in a number of court decisions, including the Queens Bench  
decision in R v Langan 2013 SKQB 256, which is binding on this Court, as well as other  
decisions including but not limited to: R v Belhumeur 2007 SKPC 114; R v Langan et al  
(23 November 2006) SKPC [unreported]; R v Goodon 2008 MBPC 59; and recently by the  
Alberta Court of Appeal in R v Hirsekorn 2013 ABQB 242 at para 57;  
4. The Respondentsattempt to re-litigate these issues in light of the above-noted case law  
is also an abuse of the Courts process;  
5. The Respondents raise constitutional questions of whether Aboriginal rights-bearing  
communities exist outside of Saskatchewan (in Alberta and Manitoba), and whether the  
Respondents have Aboriginal rights exercisable outside of Saskatchewan, the  
determination of which is beyond this Courts jurisdiction;  
6. The said questions are otherwise hypothetical and unripe for determination since none  
of the Respondents were harvesting in those other jurisdictions, or in other areas of  
Saskatchewan, nor did they give evidence that either they, or members of their families or  
communities harvest in those other jurisdictions or areas of Saskatchewan … .  
[43] The trial judge received detailed written and oral submissions with respect to this  
application.  
D.  
The Mid-Trial Ruling in response to the motion to strike  
[44] In the Mid-Trial Ruling, the trial judge said the following:  
The issue I am deciding today is whether or not the amended amended notice of  
constitutional question should be struck as an abuse of process or because it has no chance  
of success. In applying the Supreme Courts decision in Powley, and the cases that have  
been decided after it, that Métis harvesting rights are to be considered on a site-specific  
basis using a regional approach, I find that there is an issue regarding the amended amended  
notices. That is, its my determination that the Supreme Court, and the cases subsequent to  
it, make it a point that the notices, such as had been filed here, claiming rights as part of  
the Métis nation comprising all of Saskatchewan and parts of Manitoba and Alberta is  
inconsistent with this approach, and insofar as it would make findings that are beyond the  
Province of Saskatchewan or beyond the jurisdiction that I possess as a provincial court  
judge.  
In applying the decision of Powley, and the cases that have been decided subsequent to it,  
I find that relating to the accused that are at trial before me, that I can appropriately decide  
the following issues. … In respect of Mr. Myette, I find that the issue to be decided is  
whether Mr. Myette is a part of the historical community of Métis community of northwest  
Page 12  
Saskatchewan, which includes Green Lake and Meadow Lake, and whether, then, in  
hunting near the Rush Lake Fire Guard Road which runs parallel to the south end of Green  
Lake, whether that is within -- whether that is part of the historic community -- whether  
Mr. Myette is part of that historic community and is therefore exercising his right.  
In respect of Mr. Boyer, I find that the issue is whether or not at Chitek Lake and the area  
around Chitek Lake is part of the historic Métis community of northwest Saskatchewan,  
whether he is a member of that community, and whether that area, then, being within  
northwest Saskatchewan is an area that hes permitted as a member of that community to  
fish.  
In respect of Mr. Poitras, I find that the issue is whether or not Jackfish Lake and the Cochin  
areas are part of the community -- historic Métis community of northwest Saskatchewan,  
whether he is a member of that community, and whether or not as a result, he has a right to  
hunt in the area that it was indicated that he was hunting.  
(Emphasis added)  
[45] Thus, the accuseds claim of a constitutional right was reduced to whether the areas where  
they were hunting and fishing were part of the HMCONWS as previously found in Laviolette.  
[46] Following the Mid-Trial Ruling, the defence then called another genealogist and an  
additional expert historian. The Crown called no rebuttal evidence.  
E.  
Trial Decision  
1. NRTA  
[47] The trial judge began his analysis by considering whether the Métis are included in the  
term Indiansin the NRTA(at para 5). He reviewed Blais, Daniels v Canada (Indian Affairs and  
Northern Development), 2016 SCC 12, [2016] 1 SCR 99 [Daniels], and Manitoba Métis  
Federation Inc. v Canada (Attorney General), 2013 SCC 14, [2013] 1 SCR 623 [Manitoba Métis].  
He observed that Daniels held that the Métis are Indians for the purposes of s. 91(24) of the  
Constitution Act, 1867 (UK), but that this was a completely different interpretive exercisethan  
what is involved under the NRTA(Trial Decision at para 12). He noted that Manitoba Métis  
found that Canada did not owe a fiduciary obligation to the Métis as had been argued in that case.  
These findings having been made, the trial judge held that Canada had no express constitutional  
obligation to the Métis in Saskatchewan from which a fiduciary or any related legal obligation  
could arise and no power to include the Métis in the NRTA, a negotiated agreement, without  
Saskatchewans agreement(at para 12(f)). In the result, he concluded that that the Métis are not  
included in the term Indiansin paragraph 12 of the NRTA(at para 12).  
Page 13  
2.  
Date of effective control is set at 1876 to 1881  
[48] In Laviolette, the defence had called Dr. Tough and Mr. Thornton to give evidence  
regarding the date of effective control; the Crown did not lead any expert evidence on that point  
but did agree that a Métis community was present in the HMCONWS by 1870. Based on  
Dr. Toughs and Mr. Thorntons evidence, the trial judge fixed the date of effective control for the  
HMCONWS at 1912.  
[49] In this case, unlike in Laviolette, the Crown called its own expert, Dr. Evans, who testified  
to an earlier date of effective control. It appears that the trial judge preferred the latters evidence  
over that of Dr. Tough and Mr. Thornton. He found that [w]hile it is arguable whether [the  
evidence of government activity in the area] changed the traditional lifestyle and economy of the  
Métis it clearly showed a change to treaty negotiation and encouraging settlement(Trial Decision  
at para 18). Nonetheless, the trial judge determined that the effective date of control fell between  
1876 and 1881.  
3.  
Mr. Myette  
[50] With respect to all three accused, the trial judge held that they had an ancestral connection  
to, and are presently members of, the HMCONWS. The central issue for all three was whether the  
area where they were hunting was part of that land mass.  
[51] After reviewing the evidence concerning the geographic indistinguishability of the location  
where Mr. Myette was hunting from Green Lake, which he had found to be part of the HMCONWS  
in Laviolette, the trial judge acquitted Mr. Myette.  
4.  
Mr. Boyer  
[52] In reviewing the case against Mr. Boyer, the trial judge considered the evidence of the  
Crown expert, Dr. Evans, and the defence expert, Dr. Macdougall. Dr. Evans testified that he did  
not find any evidence of anyone other than members of the Pelican Lake Band fishing or living  
at the lake(Trial Decision at para 25). The Pelican Lake First Nation is situated on the shores of  
Chitek Lake, where Mr. Boyer was fishing.  
Page 14  
[53] Dr. Macdougall opined that, geographically, Chitek Lake was part of the HMCONWS  
because it was shown on the Moberly Map, an archival sketch map, as being part of the English  
River District(at para 24). (The Moberly Map was prepared by Henry Moberly, a fur trader who  
worked in the English River District in 1895 the English River was another name for the  
Churchill River.) In addition, the defence submitted Métis scrip applications as evidence that  
families were residing at Pelican Lake [sic] between 1878 and 1884 …” (at para 26).1  
[54] The trial judge concluded, however, that [w]hile this [scrip] shows some time spent at  
[Chitek] Lake it does not establish that a Métis community existed there prior to European effective  
control or was part of HMCONWS(at para 27). As a result, Mr. Boyer was convicted.  
5.  
Mr. Poitras  
[55] To reiterate, the issue with respect to Mr. Poitras was whether the Jackfish Lake/Cochin  
area [was] part of HMCONWS(at para 6). The trial judge determined that Mr. Poitras was  
hunting on the Sundance Fireguard Road by Alcott Creek, a place where he said his father  
trapped(at para 39).  
[56] In convicting Mr. Poitras, the trial judge found no evidence of historical hunting in this  
area by members of HMCONWS(at para 40). The building blocks of his reasoning process  
included his findings that (a) “Dr. Macdougall gave no evidence that these areas were part of  
HMCONWSand (b) “Dr. Evans testified that a Métis community emerged at Jackfish Lake by  
the late 1880s/early 1890s, made up of Métis from Duck Lake near Fort Carlton(at para 40).  
6.  
Summary of the Trial Decision  
[57] In short, the trial judge held that the location where Mr. Myette was harvesting was  
geographically indistinguishable from Green Lake and a part of HMCONWS(at para 32),  
but that the locations some 37 and 60 km away from the HMCONWS, where Mr. Boyer and  
Mr. Poitras were harvesting, were not part of it.  
1 Pelican Lake (SK059) is northwest of Moose Jaw. Chitek Lake, where the Pelican Lake First Nation is located, is  
southeast of Meadow Lake, which is where the harvesting took place. According to Crown-Indigenous Relations and  
Northern Affairs Canada, Chitek Lake 191 is an Indian reserve and Pelican Lake First Nation is listed as the only First  
Nation on the reserve.  
Page 15  
F.  
On appeal to the Court of Queens Bench  
[58] The appeal to the Court of Queens Bench was essentially an appeal from the Mid-Trial  
Ruling, which narrowed the notices of constitutional question to a consideration of the land  
immediately south of the HMCONWS. The summary conviction appeal judge interpreted the  
appeal as being whether each of [the accused] had a Métis Aboriginal right to fish or hunt for  
food in their community …” (QB Decision at para 6). In answering this question, the summary  
conviction appeal judge wrote as follows:  
[14] The defence argued that the Powley decision was meant to deal with who the people”  
are that have the specific rights. They argued that the courts are confusing the concept of  
peoplewith settlement. If they were allowed to deal with the concept of people, then  
they would have led evidence respecting the occupation of almost all of the Province of  
Saskatchewan. Part of the argument was that the Métis were highly mobile and to look at  
a specific regional location is inappropriate in the context of their lifestyle. They argued  
that the issue of fishing is the core issue to examine, not fishing at a particular location.  
The judge rejected this approach. I think he was correct in so doing. The expert evidence  
identified that the Métis of northwest Saskatchewan were a distinct community and that  
they were based on settlement as opposed to a nomadic lifestyle that was followed by the  
Métis further south.  
[59] Applying a standard of review derived from R v Biniaris, 2000 SCC 15, [2000] 1 SCR 381,  
and R v Yebes, [1987] 2 SCR 168, to the trial judges other findings, the summary conviction  
appeal judge could see no basis to intervene.  
[60] With respect to the claim under the NRTA, the summary conviction appeal judge agreed  
with the trial judge. He found no basis to reach a different conclusion than that Blais remained the  
controlling authority. In short, the word Indians in paragraph 12 did not include the Métis.  
[61] Mr. Boyer and Mr. Poitras now apply for leave to appeal and appeal the QB Decision. From  
here on in, I will refer to Mr. Boyer and Mr. Poitras as the appellants. As I have indicated, Crown  
counsel concedes that leave should be granted, such that I will not address that issue further.  
IV. Issues  
[62] The appellants raise numerous grounds of appeal. In my view, the issues that must be  
addressed coalesce around these broad questions:  
Page 16  
(a)  
Did the summary conviction appeal judge err by not finding that the trial judge  
erred in his approach to determining whether the appellants can assert as a defence  
the constitutional right to harvest in the north, central and southern parts of the  
province?  
(b)  
(c)  
Did the summary conviction appeal judge err by not finding that the trial judge  
erred by interpreting Powley as preventing a claim to a harvesting right to harvest  
in the north, central and southern parts of the province?  
Did the summary conviction appeal judge err by not finding that the trial judge  
erred by denying the appellants their right to make full answer and defence? This  
question includes a subissue: Did the summary conviction appeal judge err by not  
finding that the trial judge erred by concluding he did not have the jurisdiction to  
make findings beyond the Province of Saskatchewan?  
(d)  
(e)  
Did the summary conviction appeal judge err by not finding that the trial judge  
erred by fixing the date of effective European control at 1876 to 1881?  
If error is found, what is the appropriate remedy?  
[63] It should be noted that the appellants do not appeal that aspect of the QB Decision which  
holds that Indians in paragraph 12 of the NRTA does not include the Métis.  
V.  
Analysis  
A.  
Approach to assessing the appellantsassertion of a constitutional right  
to harvest  
[64] The resolution of the appellantsclaim of an Aboriginal right to harvest under s. 35 of the  
Constitution Act, 1982, cannot be divorced from the significant body of Supreme Court  
jurisprudence that has continued to develop and affirm the place of the Métis within the  
constitution of Canada: Powley, Blais, Manitoba Métis, Daniels and Alberta (Aboriginal Affairs  
and Northern Development) v Cunningham, 2011 SCC 37, [2011] 2 SCR 670 [Cunningham]. In  
my respectful view, neither the trial judge nor the summary conviction appeal judge approached  
the issues with this case law in mind. In making this comment, it also must be understood that the  
issues and argument in this Court are, as is often the case, more refined than they were before those  
courts.  
Page 17  
[65] Powley and Blais were released by the Supreme Court on the same day. Instead of reading  
these decisions expansively, they have come to be read restrictively, as if they have foreclosed the  
continuing development of Métis rights. Powley and Blais are starting, rather than ending, points.  
[66] With the enactment of s. 35 of the Constitution Act, 1982, the Métis were recognized for  
the first time as one of the Indigenous peoples of Canada, along with Indians and the Inuit: In this  
Act, aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada”  
(emphasis in original, s. 35(2)). In Powley, the Supreme Court affirmed that [t]he inclusion of the  
Métis in s. 35 is based on a commitment to recognizing the Métis and enhancing their survival as  
distinctive communities(at para 13). I agree with the appellants and the intervenors that there is  
no suggestion that the requirements to establish rights for the Métis were intended to be more  
onerous than for other Indigenous peoples recognized in s. 35. As I discuss later, instead of setting  
a base line for a proper consideration of existing Métis harvesting rights, Powley has come to be  
taken as being fixed in time.  
[67] Similarly, Blais has come to reflect an attitude that the Métis cannot be entitled to broad  
harvesting rights such as are recognized for Indians because they were not mentioned in  
paragraph 12 of the NRTA. Instead of acting as a ceiling, Blais must be read as clearing the way  
for the proper resolution of Métis rights according to the constitution.  
[68] In Blais, Ernest Lionel Joseph Blais asserted a right to harvest under the NRTA only. The  
Supreme Court made it very clear that it was making no findings with respect to the existence of  
a Métis right to hunt for food in Manitoba under s. 35 of the Constitution Act, 1982, since the  
appellant chose not to pursue this defence(at para 6). After reiterating its conclusion that the word  
Indians in the NRTA does not include the Métis, the Supreme Court stated, We do not preclude  
the possibility that future Métis defendants could argue for site-specific hunting rights in various  
areas of Manitoba under s. 35 of the Constitution Act, 1982, subject to the evidentiary requirements  
set forth in Powley(at para 42).  
[69] Importantly, Blais cannot be interpreted as holding that the Métis cannot successfully assert  
a broad harvesting claim because only those persons recognized in the NRTA have that right. In  
my view, the central focus of Blais is the Supreme Courts observation that other constitutional  
and statutory provisions are better suited, and were actually intended, to fulfill this more wide-  
Page 18  
ranging purposeof providing a source of the Crowns or the provinces obligations towards  
Aboriginal peoples(at para 26).  
[70] In Cunningham, the Supreme Court upheld the authority of the Alberta Métis to determine  
who is part of its membership under the AlbertaMétis Settlements Accord. In reaching that  
decision, the Court recognized the Métis as a unique and distinct people(at para 70). In the same  
paragraph, the Court also acknowledged that the Métis have struggled for more than two centuries  
for recognition of their own unique identity, culture and governance.  
[71] Cunningham is the clear precursor to Manitoba Métis and Daniels.  
[72] In Manitoba Métis, a majority of the Supreme Court held significantly that (a) the honour  
of the Crown applies to its obligations to the Métis, (b) the ultimate goal of the honour of the  
Crown is reconciliation, (c) the unfinished business of reconciliation of the Métis people with  
Canadian sovereignty is a matter of national and constitutional import(at para 140), (d) the  
honour of the Crown demands that constitutional obligations to Aboriginal peoples be given a  
broad, purposive interpretation(at para 77), and (e) the honour of the Crown requires it to act  
diligently in pursuit of its solemn obligations and the honourable reconciliation of Crown and  
Aboriginal interests(at para 78). Manitoba Métis held that limitations periods and the equitable  
doctrine of laches did not apply to the Métis request for a declaration.  
[73]  
In Daniels, in what has been labelled as a historic victory for the Métis, a unanimous  
Supreme Court ruled that the term Indians in s. 91(24) of the Constitution Act, 1867, includes  
Métis and non-status Indians. The effect of this ruling is that the federal government has a  
constitutional responsibility for these additional peoples in equal measure with all Indigenous  
peoples.  
[74] The pentalogy of Powley, Blais, Cunningham, Manitoba Métis and Daniels finds support  
and is bolstered by the Supreme Courts consistent approach to the resolution of Indigenous rights  
generally. Of these decisions, two categories of cases must be mentioned: those that describe and  
provide content to the meaning of the phrase the honour of the Crownand those that emphasize  
the need to consider the Indigenous perspective.  
Page 19  
[75] The first group of authorities holds that the interpretation of s. 35 engages the honour of  
the Crown: R v Van der Peet, [1996] 2 SCR 507 at paras 2425 [Van der Peet]; Taku River Tlingit  
First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 at para 24, [2004] 3  
SCR 550; Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at para 25, [2004]  
3 SCR 511 [Haida Nation]; Mikisew Cree First Nation v Canada (Governor General in Council),  
2018 SCC 40 at paras 22 and 44, [2018] 2 SCR 765 [Mikisew]; and Newfoundland and Labrador  
(Attorney General) v Uashaunnuat (Innu of Uashat and of Mani‑Utenam), 2020 SCC 4 at para 22,  
443 DLR (4th) 1 [Uashaunnuat].  
[76] The second category of Supreme Court decisions places particular emphasis on the need to  
give weight to the Indigenous perspective: Van der Peet at para 49, R v Marshall; R v Bernard,  
2005 SCC 43 at para 45, [2005] 2 SCR 220 [Marshall], and Tsilhqotin Nation v British Columbia,  
2014 SCC 44 at paras 3235, [2014] 2 SCR 256 [Tsilhqotin]. These are not all of the reported  
cases that could be cited for these propositions.  
[77] This significant body of jurisprudence forms the basis for the analysis of Powley that  
follows in my reasons and, in my respectful view, should have informed how the various issues  
before the trial judge were resolved. With much respect, the trial judge and the summary conviction  
appeal judge did not follow this approach to the resolution of the issues before them. In a trial of  
some significance to the Métis, there is no mention of the honour of the Crown, the proper  
approach to how Indigenous claims are to be assessed, or the need to consider reconciliation.  
[78] The first issue that both judges decided was whether the Métis can assert the same rights  
as Indians under the NRTA. While they were correct in holding as they did (i.e., the NRTA does  
not apply to the Métis people), the resolution of harvesting rights under the NRTA does not properly  
determine and cannot be used to inform whether the Métis can assert a similar province-wide claim  
or a claim to the north, central and southern parts of the province under s. 35. As I have indicated,  
all Blais decided was to place the resolution of Métis harvesting rights in s. 35 as opposed to the  
NRTA.  
Page 20  
[79] Similarly, contrary to what the trial judge indicated, Daniels is significant because it now  
solidly positions the Métis within the constitution of Canada. Daniels does not change the result  
in Blais, but it does demonstrate the evolution in the courtsthinking about the status of the Métis.  
[80] In a like vein, while the trial judge recognized that Manitoba Métis did not find that the  
Crown owed a fiduciary duty, that decision holds, for the first time, that the principle of the honour  
of the Crown applies to the resolution of Métis entitlements.  
[81] With that approach to Métis harvesting rights in mind, I will now consider Powley in  
greater depth.  
B.  
Powley does not put forward a narrow test, frozen in time  
[82] As I have observed, Powley, and its proper interpretation is central to the resolution of this  
appeal.  
1.  
Introduction to Powley  
[83] The issue is whether Powley, and subsequent authority, required the trial judge to modify  
the appellantsnotices of constitutional question, which claimed an Aboriginal right to harvest in  
the province that includes north, central and southern Saskatchewan.  
[84] The Crown seeks to sustain the trial judges conclusion on two bases. First, it argues that  
Powley and prior and subsequent Supreme Court authority incorporated a site-specific test for  
proving Métis rights. Second, the Crown submits that trial courts have properly recognized that  
the Métis are comprised of distinct communities and have consistently narrowed broad territorial  
claims to resolve harvesting cases.  
[85] With respect, the Crown has taken an unnecessarily narrow view of Powley. Supreme Court  
jurisprudence, including Powley, has left open the possibility that s. 35 rights may develop  
differently for nomadic Indigenous peoples than for those who identify with a site-specific territory  
or a specific land area. Further, most trial court decisions in Saskatchewan, which have followed  
a site-specific approach to Métis harvesting rights, can be differentiated or distinguished and, in  
any event, are not binding on this Court.  
Page 21  
2.  
Powley interpreted and applied  
[86] Powley presented the Supreme Court with an opportunity to resolve how Van der Peet,  
which dealt with the rights of First Nations persons, applied to Métis peoples. In Van der Peet, the  
majority of the Supreme Court stated the issue as follows: How are the aboriginal rights  
recognized and affirmed by s. 35(1) of the Constitution Act, 1982 to be defined?(at para 1). In  
answering this question, the majority put forward a simple test: in order to be an aboriginal right  
an activity must be an element of a practice, custom or tradition integral to the distinctive culture  
of the aboriginal group claiming the right(at para 46). The majority labelled this the integral to  
a distinctive culture test.  
[87] By way of guidance to courts, the majority went on to provide a list of factors, presented  
as headings, to be considered in applying the integral to a distinctive culture test. Significant to  
this appeal, the majority in Van der Peet mentioned, among others, these factors (at paras 4974):  
(a)  
(b)  
Courts must take into account the perspective of aboriginal peoples themselves;  
Courts must identify precisely the nature of the claim being made in determining  
whether an aboriginal claimant has demonstrated the existence of an aboriginal  
right;  
(c)  
(d)  
(e)  
Courts must approach the rules of evidence in light of the evidentiary difficulties  
inherent in adjudicating aboriginal claims;  
Claims to aboriginal rights must be adjudicated on a specific rather than general  
basis; and  
Courts must take into account both the relationship of aboriginal peoples to the  
land and the distinctive societies and cultures of aboriginal peoples.  
[88] In expanding and elaborating on this test, the majority in Van der Peet recognized and left  
open the question of how to define Métis rights within the meaning of s. 35. Chief Justice Lamer  
wrote as follows:  
Page 22  
[67] … 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. 35s 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.  
(Emphasis added)  
[89] In Powley, after referring to the above quote in Van der Peet, the Supreme Court took up  
the question of the place of Métis peoples in s. 35 of the Constitution Act, 1982, with the following:  
[17] … the inclusion of the Métis in s. 35 is not traceable to their pre-contact occupation  
of Canadian territory. The purpose of s. 35 as it relates to the Métis is therefore different  
from that which relates to the Indians or the Inuit. The constitutionally significant feature  
of the Métis is their special status as peoples that emerged between first contact and the  
effective imposition of European control. The inclusion of the Métis in s. 35 represents  
Canadas commitment to recognize and value the distinctive Métis cultures, which grew  
up in areas not yet open to colonization, and which the framers of the Constitution Act,  
1982 recognized can only survive if the Métis are protected along with other aboriginal  
communities.  
[18] With this in mind, we proceed to the issue of the correct test to determine the  
entitlements of the Métis under s. 35 of the Constitution Act, 1982. The appropriate test  
must then be applied to the findings of fact of the trial judge. We accept Van der Peet as  
the template for this discussion. However, we modify the pre-contact focus of the Van der  
Peet test when the claimants are Métis to account for the important differences between  
Indian and Métis claims. Section 35 requires that we recognize and protect those customs  
and traditions that were historically important features of Métis communities prior to the  
time of effective European control, and that persist in the present day. This modification is  
required to account for the unique post-contact emergence of Métis communities, and the  
post-contact foundation of their aboriginal rights.  
(Emphasis added)  
[90] The majority then proceeded to list those aspects of the Van der Peet test that it wished to  
emphasize in the context it was deciding. Again, for our purposes, the factors that are most  
important are as follows: (a) characterization of the right being claimed, and (b) identification of  
the historic rights-bearing community.  
Page 23  
[91] In its analysis of the characterization of the right being claimed, the Supreme Court in  
Powley wrote, Aboriginal hunting rights, including Métis rights, are contextual and site-specific”  
(at para 19).  
[92] For the Crown, this statement should be dispositive of this appeal. Relying on Powley, R v  
Adams, [1996] 3 SCR 101 at para 36 [Adams], R v Côté, [1996] 3 SCR 139 at paras 31, 56 and 57  
[Côté], and R v Sappier; R v Gray, 2006 SCC 54 at paras 50 and 51, [2006] 2 SCR 686 [Sappier],  
the Crown asserts further that the Supreme Court has never abandoned the site-specific nature of  
Aboriginal rights mentioned in Powley. The Crown also refers to several trial decisions in support  
of a narrow approach to Métis rights: Laviolette; R v Belhumeur, 2007 SKPC 114, 301 Sask R 292  
[Belhumeur]; R v Goodon, 2008 MBPC 59, 234 Man R (2d) 278 [Goodon]; and R v Langan, 2013  
SKQB 256, 425 Sask R 42 [Langan]. It follows from the Crowns submissions that a site could  
never be a province as a whole or a part of a province that might be described as the northern or  
the central or the southern part of it, as the appellants claim.  
[93] Clearly, there are references in Supreme Court authority predating and succeeding Powley  
that discuss the site-specific nature of Aboriginal harvesting rights. The strongest endorsement of  
that proposition comes from Sappier:  
[50] This Court has imposed a site‑specific requirement on the aboriginal hunting and  
fishing rights it recognized in Adams, Côté, Mitchell [2001 SCC 33], and Powley. Lamer  
C.J. explained in Adams, at para. 30, that  
if an aboriginal people demonstrates that hunting on a specific tract of land  
was an integral part of their distinctive culture then, even if the right exists  
apart from title to that tract of land, the aboriginal right to hunt is  
nonetheless defined as, and limited to, the right to hunt on the specific tract  
of land. A site‑specific hunting or fishing right does not, simply because it  
is independent of aboriginal title to the land on which it took place, become  
an abstract fishing or hunting right exercisable anywhere; it continues to  
be a right to hunt or fish on the tract of land in question.  
(Italic emphasis in original, underline emphasis added)  
[94] Notwithstanding the above-quoted statement, Sappier does not foreclose the assertion of a  
broad territorial claim for two reasons. First, in Adams, Côté, Mitchell v M.N.R., 2001 SCC 33,  
[2001] 1 SCR 911 [Mitchell], and Powley, upon which Sappier relies, the party asserting the s. 35  
right had already narrowed the claim to a specific site:  
Page 24  
(a)  
(b)  
in Adams, the claim was the for the right to fish for food in Lake St. Francisin  
Quebec (at para 36);  
in Côté, the Supreme Court characterized the right as whether the appellants  
enjoyed an unextinguished aboriginal right or treaty right to fish within the [zone  
dexploitation contrôlée] deserving of constitutional protection under s. 35(1) of the  
Constitution Act, 1982 …” in Quebec (at para 31; also see paras 56 and 57);  
(c)  
(d)  
in Mitchell, the claim was in respect to a specific geographical region in which it  
is alleged to have been exercised (i.e., north of the St. Lawrence River) …” (at  
para 40; also see para 41); and  
in Powley, the issue was whether members of the Métis community in and around  
Sault Ste. Marie enjoy a constitutionally protected right to hunt for food under s. 35  
of the Constitution Act, 1982(at para 1).  
In each of these decisions, the site was specific because the claimant had made it so.  
[95] There is a second reason why Sappier is not an impediment to the appellantsbroad  
assertion of a constitutional right to harvest; it falls into that category of case where the Court was  
able to narrow the claim in order to permit a proper assessment of it, which has usually led to an  
acquittal. Justice Binnie described this phenomenon in Lax Kwalaams Indian Band v Canada  
(Attorney General), 2011 SCC 56, [2011] 3 SCR 535 [Lax Kwalaams Indian Band].  
[96] In Lax Kwalaams Indian Band, Binnie J. distinguished Sappier as belonging to that group  
of decisions where it was necessary for the Court to re-characterize and narrow the claimed right  
to satisfy the forensic needs of the defence without risking self-destruction of the defence by reason  
of overclaiming(at para 44).  
[97] Most importantly, the Supreme Court in Sappier, Adams, Côté, Mitchell and Powley was  
not confronted with a case such as this one. Here, the appellants claim to be a migratory or nomadic  
peoples whose traditional territory allegedly covered either large tracts or the whole of the  
province. They assert, as an Aboriginal right under s. 35, the right to harvest because of their way  
of life, which, according to them, knew nothing of the municipal or provincial boundaries that  
exist today.  
Page 25  
[98] The Supreme Court in Powley was very clear not to decide more than necessary to  
determine whether Mr. Powleys acquittal should be sustained. It left open the possibility for a  
claim over a broader area of land than in and around Sault Ste. Marie, as is apparent in the  
following quotation:  
[12] We would not purport to enumerate the various Métis peoples that may exist. Because  
the Métis are explicitly included in s. 35, it is only necessary for our purposes to verify that  
the claimants belong to an identifiable Métis community with a sufficient degree of  
continuity and stability to support a site-specific aboriginal right. 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 respondents here claim  
membership in the Métis community centred in and around Sault Ste. Marie. It is not  
necessary for us to decide, and we did not receive submissions on, whether this community  
is also a Métis people, or whether it forms part of a larger Métis people that extends over  
a wider area such as the Upper Great Lakes.  
(Emphasis added)  
[99] Further, Powley points to an ongoing evolution, growth and continuing interpretive  
exercise for the courts regarding the Métis peoplesright to hunt for food:  
[50] While our finding of a Métis right to hunt for food is not species-specific, the evidence  
on justification related primarily to the Ontario moose population. The justification of other  
hunting regulations will require adducing evidence relating to the particular species  
affected. In the immediate future, the hunting rights of the Métis should track those of the  
Ojibway in terms of restrictions for conservation purposes and priority allocations where  
threatened species may be involved. In the longer term, a combination of negotiation and  
judicial settlement will more clearly define the contours of the Métis right to hunt, a right  
that we recognize as part of the special aboriginal relationship to the land.  
(Emphasis added)  
[100] In my respectful view, a reading of Powley that requires the assertion of a Métis harvesting  
right over what must always be a smaller site size is not justified. It has given rise to what the  
appellants in oral argument called the Pac-Man approach to the resolution of Métis harvesting  
rights.  
[101] According to the appellants, a Métis person would put forward a claim over a large part of  
the province. On the application of the Crown, or on its own initiative, a court would narrow the  
claim to a specific site, leaving the claimants to test the issue of a more comprehensive rights claim  
in yet another piece of litigation, with the result that the broader issue the Métis are attempting to  
resolve is never addressed.  
Page 26  
[102] While many cases could be cited for this piecemeal approach, it is sufficient to mention R  
v Morin, [1996] 3 CNLR 157 (Sask PC) [Morin-PC], affd (1997), 159 Sask R 161 (QB) [Morin-  
QB], Belhumeur and Goodon. A review of these decisions shows that since at least Morin-PC, on  
the basis of charges that arose in 1993, the Métis peoples have been attempting to assert a  
comprehensive resolution of their right to harvest for food.  
[103] In Morin-QB, the final iteration of the constitutional question was this: Do the Métis of  
northwestern Saskatchewan have an existing Aboriginal right to fish?(at para 26).  
Notwithstanding the breadth of the question, over the course of the trial, the issue came to be  
confined to the area loosely known as Treaty 10 or perhaps a little larger(Morin-PC at para 19).  
This is so even though the trial judge made a finding that he was satisfied that the Métis people,  
in particular the ancestors of both of the accused, were well established in the area of [Turnor]  
Lake and generally in northwest Saskatchewan well before 1870(at para 46). In the result, which  
was an acquittal, the trial judge found, after considering all of the evidence, that people in the  
area of Turnor Lake are currently living as a community and basically off the land as they have  
since the early 1800s(at para 47). Morin-QB has subsequently been interpreted as applying  
variously to the Treaty 10 area only: see, for example, Laviolette at para 18 and R v Maurice,  
[2002] 2 CNLR 244 at para 5 (Sask PC).  
[104] In Belhumeur, the claim was for a right to harvest, which encompassed all of south and  
central Manitoba, Alberta and Saskatchewan(at para 200). In acquitting the accused, the trial  
judge narrowed the claim to a regional community: the QuAppelle Valley and environs which  
extend to the City of Regina(at para 206). The accused was hunting within this area and,  
therefore, was acquitted.  
[105] In Goodon, the accused attempted to argue (at para 19) that  
the appropriate site for the hunting right claimed should be much more extensive and  
should include an area described as the Northwest. Evidence was presented that the  
Northwest is the term that was used by the fur traders and voyageurs to describe the area  
north and west of central Canada and includes almost all of the provinces of Manitoba,  
Saskatchewan, and Alberta, the southern Canadian territories and northwestern Ontario.  
(Emphasis added)  
Page 27  
However, the trial judge fixed the site at what he believed the evidence showed: a historic rights-  
bearing community [which] includes all of the area within the present boundaries of southern  
Manitoba from the present day City of Winnipeg and extending south to the United States and  
northwest to the Province of Saskatchewan including the area of present day Russell, Manitoba”  
(at para 48). Since the accused was hunting within this territory, the trial judge acquitted him.  
[106] In my respectful view, in the within case, the trial judge erred by narrowing the appellants’  
constitutional question to whether they had the right to harvest where they had been hunting and  
fishing, without considering if that right could be grounded in a claim that they are part of a group  
that was migratory and who harvested throughout the Northwest. If there is some prospect of such  
a claim being made out, as noted above, it can only be narrowed in the circumstances mentioned  
in Lax Kwalaams Indian Band: to re-characterize and narrow the claimed right to satisfy the  
forensic needs of the defence without risking self-destruction of the defence by reason of  
overclaiming(at para 44).  
[107] This approach would have been appropriate if, after the defence had closed its case, the  
trial judge had concluded that a consideration of a much larger site was not necessary to give effect  
to the constitutional right that had been claimed. Here, however, the Crown asked the trial judge  
to narrow the constitutional question before the defence rested.  
[108] Thus I conclude that the trial judge erred in law with respect to his interpretation of Powley.  
His narrowing of the constitutional question on the basis that Powley compelled him to do so, and  
then going on to convict the appellants, raises the issue of whether there has been a denial of the  
right to make full answer and defence. I will now turn to that specific question.  
C.  
The right to make full answer and defence  
[109] Beyond the question of the interpretation of Powley, the Crown seeks to sustain the trial  
judges decision to limit the notices of constitutional question on two bases. First, the Crown  
asserts the trial judge was properly concerned about receiving evidence beyond the boundaries of  
the province. Second, the Crown argues that the Mid-Trial Ruling did not limit the right to make  
full answer and defence because it was a necessary decision dictated by good trial management.  
Page 28  
1.  
Making findings beyond the Province of Saskatchewan  
[110] The trial judge appears to have justified his decision to narrow the appellantsnotices of  
constitutional question because their claim extended beyond the borders of Saskatchewan. He said  
that such a claim was beyond his jurisdiction (Mid-Trial Ruling):  
That is, its my determination that the Supreme Court, and the cases subsequent to it, make  
it a point that the notices, such as had been filed here, claiming rights as part of the Métis  
nation comprising all of Saskatchewan and parts of Manitoba and Alberta is inconsistent  
with this approach, and insofar as it would make findings that are beyond the Province of  
Saskatchewan or beyond the jurisdiction that I possess as a provincial court judge.  
(Emphasis added)  
[111] Relying on Uashaunnuat and R v Desautel, 2021 SCC 17, 456 DLR (4th) 1 [Desautel], the  
appellants and the intervenors challenge this conclusion. In brief terms, they argued that the trial  
judge erred by narrowing the claim before him on the basis it asserted rights to a larger territory  
extending beyond the borders of the province.  
[112] I agree with the appellants and intervenors on this point. Borders were not an impediment  
to asserting an Aboriginal right in either Uashaunnuat or Desautel. In Uashaunnuat, the majority  
of the Supreme Court stated plainly, We do not accept that the later establishment of provincial  
boundaries should be permitted to deprive or impede the right of Aboriginal peoples to effective  
remedies for alleged violations of these pre-existing rights(at para 49). In Desautel, the Supreme  
Court determined that the accused had protected rights under s. 35, even though he was not a  
Canadian citizen. All four levels of court hearing his case decided that Mr. Desautel had s. 35  
rights because of his Canadian-based, Indigenous ancestry.  
[113] Further, it appears that the trial judge misconstrued what the appellants were seeking. The  
trial judge was not being asked to make findings that would be binding on the provinces of Alberta  
and Manitoba. Rather, he was being asked to consider a pattern of Métis living that was said to  
have covered much of the prairies as a means of proving a claim within the boundaries of  
Saskatchewan. In that regard, this case is similar to what the Métis parties asserted in Goodon.  
[114] Responding to a claim covering much of western Canada, the Manitoba Provincial Court  
in Goodon limited the action to what was known as the Turtle Mountain region. In commenting  
on the broad nature of the claim before it, that Court held as follows:  
Page 29  
[46] The Métis community of western Canada has its own distinctive identity. As the Métis  
of this region were a creature of the fur trade and as they were compelled to be mobile in  
order to maintain their collective livelihood, the Métis communitywas more extensive  
than, for instance, the Métis community described at Sault Ste. Marie in Powley. The Métis  
created a large inter-related community that included numerous settlements located in  
present-day southwestern Manitoba, into Saskatchewan and including the northern  
Midwest United States.  
[47] This area was one community as the same people and their families used this entire  
territory as their homes, living off the land, and only periodically settling at a distinct  
location when it met their purposes.  
[48] Within the Province of Manitoba this historic rights-bearing community includes all  
of the area within the present boundaries of southern Manitoba from the present day City  
of Winnipeg and extending south to the United States and northwest to the Province of  
Saskatchewan including the area of present day Russell, Manitoba. This community also  
includes the Turtle Mountain area of southwestern Manitoba even though there is no  
evidence of permanent settlement prior to 1880. I conclude that Turtle Mountain was,  
throughout much of the nineteenth century, an important part of the large Métis regional  
community.  
(Emphasis added)  
[115] Similarly, in Langan, while the trial judge did not allow the claimant to pursue a claim that  
covered the whole of Manitoba and Saskatchewan, the claimant was permitted to use evidence of  
a right to harvest in Manitoba to attempt to ground such a right in Saskatchewan.  
[116] Thus, I find that the trial judge erred when he limited the appellantsdefence on the basis  
of its extra-territoriality. Uashaunnuat and Desautel confirm that provincial and even international  
borders do not preclude Indigenous persons from asserting their s. 35 rights.  
2.  
Narrowing the defence for trial management purposes  
[117] The Crown correctly asserts that the curtailment of defence evidence may be justified in  
order to manage an unwieldy trial. However, in my view, what the trial judge did here went beyond  
good trial management.  
[118] The Supreme Court has recently canvassed the competing interests between proper trial  
management and the right to make full answer and defence: R v Samaniego, 2022 SCC 9, 466  
DLR (4th) 581. While the majority and the minority divided on the result, the Supreme Court  
agreed on the principles at stake, which are helpfully summarized in the dissenting reasons of Côté  
and Rowe JJ.:  
Page 30  
[142] Parties are entitled to present all relevant and material evidence to the trier of fact,  
absent a clear ground for exclusion: R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, at  
para. 68; C.A. Wright, The Law of Evidence: Present and Future(1942), 20 Can. Bar  
Rev. 714, at p. 715; S.N. Lederman, A.W. Bryant and M.K. Fuerst, Sopinka, Lederman &  
Bryant: The Law of Evidence in Canada (5th ed. 2018), at §1.1. A decision that restricts  
the trier of fact from considering relevant and material evidence in the absence of a clear  
ground of policy or law justifying exclusion jeopardizes the accuseds constitutional right  
to make full answer and defence. It also undercuts societys interest in getting at the truth:  
R. v. Seaboyer, [1991] 2 S.C.R. 577, at p. 609; R. v. Khelawon, 2006 SCC 57, [2006] 2  
S.C.R. 787, at paras. 4748.  
(Emphasis added)  
[119] The appellants defended the charges against them on the basis that The Wildlife Act and  
The Fisheries Regulations are unconstitutional as being contrary to the Constitution Act, 1982:  
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby  
recognized and affirmed(s. 35(1)). By virtue of their defence, they claimed that their rights as  
Aboriginal peoples extend to harvesting for food throughout the north, central and southern parts  
of the province. To prove their constitutional claim, they sought to adduce evidence to show that  
they followed a highly mobile way of life that saw individuals move from one settlement to another  
and to harvest in the places in between.  
[120] As I have indicated, on the Crowns application to strike the notices of constitutional  
question on the basis that they were an abuse of process or had no possibility of success, the trial  
judge decided that he could nonetheless hear the matter by narrowing the issues as follows (Trial  
Decision):  
[6] … I made a ruling that the following issues were to be addressed in advancement of the  
rights claims:  
a. Was the Chitek Lake area part of the historic Métis community of northwest  
Saskatchewan (HMCONWS), is Mr. Boyer a member of that community, and does  
he have a right to fish in the Chitek Lake area?  
b. Was the area in which Mr. Myette was hunting, south of Green Lake on or near  
the Rush Lake Fire Guard Road, part of HMCONWS, and is Mr. Myette part of  
that community?  
c. Was the Jackfish Lake/Cochin area part of the HMCONWS, is Mr. Poitras a  
member of that community, and does he have a right to hunt south of Meadow  
Lake in the area of the Sundance Fire Guard Road?  
Page 31  
[121] In seeking to support the trial judges decision, the Crown submits that the Mid-Trial  
Ruling was simply a re-characterization of the issuesto make the trial manageable. After many  
days of testimony, and with no clear end in sight, Crown counsel says the trial judge took steps to  
avoid the criticism leveled by Binnie J., writing in Lax Kwalaams Indian Band, that the trial of  
an action should not resemble a voyage on the Flying Dutchman with a crew condemned to roam  
the seas interminably with no set destination and no end in sight(at para 41).  
[122] This is undoubtedly true, but the problem is that the re-characterization of the issues and  
the consequent narrowing of the defence on this occasion did not result in an acquittal. The  
appellants had been attempting to resolve a long-standing dispute about whether they have the  
same rights to harvest as the Indian peoples of Saskatchewan. The tool that they chose to pursue  
their claim to a broad Métis harvesting right was the summary conviction process. Surely, the right  
to make full answer and defence in the Indigenous context extends to hearing the evidence that  
supports their claim to a recognition of existing Aboriginal rights under s. 35.  
[123] I recognize that the Supreme Court has stated on numerous occasions that charges under  
penal statutes are not necessarily the best vehicle for determining a constitutional issue: Desautel  
at para 90, Marshall at para 142, and R v Sparrow, [1990] 1 SCR 1075 at 1095. The concerns about  
the process for litigating Indigenous rights and land claims, which were identified first in Sparrow,  
persist today. A criminal trial does not have the same reach as a reference or declaratory action.  
Instead, the claims process becomes a highly adversarial competition of rights and interests rather  
than a process informed by reconciliation. Nonetheless, for reasons unknown to the Court, a broad  
resolution of Métis rights claims has not occurred in this province and the method that has been  
chosen by the appellants is the summary conviction trial process. While I agree that the summary  
conviction process is not the ideal vehicle to assert such a claim, it is the one that is presently  
before the court.  
[124] Here, however, it is not so much that the appellants were prevented from presenting  
relevant and material evidence. After all, they had called some 41 witnesses before the Mid-Trial  
Ruling and two after. The issue is better understood as being two-fold: (a) whether they had  
submitted relevant and material evidence that the trial judge did not assess because he had limited  
the issues as he did, and (b) whether the appellants had further evidence to submit.  
Page 32  
[125] In order to determine if testimony is relevant and material, it is necessary to understand the  
issue to which the evidence was directed. As I interpret the appellantscase, they were attempting  
to prove that they had a right to harvest in the areas identified because of the historic, mobile nature  
of the Métis peopleslifestyle, which extends to the modern context. The appellants assert that the  
Northwest is, and always has been, recognized in their culture as land upon which they are  
permitted to harvest, having regard for their connections to the southern, eastern and western Métis  
groups from which they derive. The pivotal question concerns the narrowing of the appellants’  
defence to the specific areas immediately south of the HMCONWS, without considering whether  
the Aboriginal right at issue could be grounded in a claim that extended throughout the province  
and beyond.  
[126] In precise terms, the appellants want to obtain, at the very least, a ruling that would  
determine how far south the Métis community of the Northwest extends. They do not accept that  
the creation of the HMCONWS was the end of their claim. In particular, they sought to adduce  
evidence to prove that the Métis rights-bearing community of Northwest Saskatchewan extended  
south of Meadow Lake. To prove that claim, they planned to adduce evidence to show that theirs  
was a highly mobile way of life, which saw individuals move from one settlement to another and  
to harvest in the places in between. According to their position, if the Métis peoples were  
migratory, it would be impossible to think of them as being confined to the territory described by  
the triangle of the HMCONWS. They assert that no matter how large that area is, the Métis people  
would be travelling to and from it as they plied their various trades. For them, the issue is the  
assertion that the Métis people, occupying substantial parts of Saskatchewan, Alberta and  
Manitoba in 1870, belonged to the same collective or, at the very least, possessed enough cultural  
similarities that they would be entitled to exercise s. 35 rights in the north, central and southern  
parts of the province.  
[127] While I find that the testimony of the witnesses was not always focussed on these issues,  
the general tenor of their evidence was directed to the central issue: whether the Métis peoples of  
Saskatchewan or of the Northwest were a migratory people such that their right to harvest extended  
to the areas where the appellants were harvesting.  
Page 33  
[128] However, I also conclude that a court need not make a ruling regarding the whole of an  
Indigenous collectives asserted traditional territory in order to resolve the question of whether a  
particular individual was exercising s. 35 rights. To use the language of Powley, where Métis  
harvesting rights are asserted, it falls to the claimant to establish that they belong to an identifiable  
Métis community with a sufficient degree of continuity and stability to support a site-specific  
aboriginal right, with the relevant community being a group of Métis with a distinctive collective  
identity, living together in the same geographic area and sharing a common way of life(at  
para 12). The need, in this analysis, to determine the geographic area occupied by a particular  
community means that often a court will not be able to assess whether an accused had an  
Aboriginal right in the location where they harvested without considering the broader evidence of  
the peoples traditional territory, including portions of the traditional territory in a neighbouring  
province, if such evidence is relevant.  
[129] Laviolette is one example of this principle. The trial judge there (the same trial judge as  
here) considered evidence of the Métis travelling from Île à la Crosse to Lac La Biche in Alberta  
to determine the perimeter of the HMCONWS.  
[130] Another example is R v Hirsekorn, 2013 ABCA 242, [2013] 8 WWR 677, leave to appeal  
to SCC refused, 2014 2421 [Hirsekorn]. The accused had defended the charge of hunting  
without a licence by claiming a right to hunt for food in central and southern Alberta, or more  
broadly, on the plains, because this would better reflect the mobile lifestyleof the Métis (at  
para 53; see also para 15). Given the breadth of the claim, it is similar to the appellantsclaim.  
[131] The Alberta Court of Appeal concluded that given the nomadic nature of the plains Métis  
culture, it was inappropriate to require that the hunting right being claimed must have occurred  
around or close to a Métis village or settlement(at para 84). At trial, the accused had been  
convicted on the basis he had not proven that any Métis community had a sufficient presence in  
the Cypress Hills area to ground the asserted right to hunt there(at para 64). While the appellate  
court dismissed the appeal, it declined to make a determination with respect to whether there was  
only one, prairie-wide Métis community during the relevant time periodin the absence of clear  
findings regarding the nature of the historical Métis community in the time leading up to control”  
(at para 64). Thus, for Alberta, the broad issue that the appellants identify remains open.  
Page 34  
[132] The courts approach in Hirsekorn is consistent with the courts approach in William v  
British Columbia, 2012 BCCA 285, [2012] 10 WWR 639, revd 2014 SCC 44, [2014] 2 SCR 257,  
where the appeal court wrote the following (albeit in the context of a specific First Nations land  
claim, rather than a Métis right to harvest for food):  
[232] I do not doubt that the culture and traditions of a semi-nomadic group, like the  
Tsilhqotin, depend on rights to use lands that extend well beyond the definite tracts that  
may be found to be subject to Aboriginal title. The Tsilhqotin must be able to continue  
hunting and fishing throughout their traditional territory, and to have the right to pass and  
re-pass over the trails that they have used for hundreds of years.  
[238] The result for semi-nomadic First Nations like the Tsilhqotin is not a patchwork of  
unconnected postage stampareas of title, but rather a network of specific sites over which  
title can be proven, connected by broad areas in which various identifiable Aboriginal  
rights can be exercised. This is entirely consistent with their traditional culture and with  
the objectives of s. 35.  
[133] It is also relevant, as the intervenors assert, to acknowledge that s. 35 jurisprudence is  
evolving as Canadian courts grapple with the challenges of reconciliation and seek to give greater  
voice to the perspectives of Indigenous peoples. The courts must, accordingly, enable Indigenous  
peoples to present evidence and arguments that may be novel or grounded in Indigenous  
perspectives, where they are relevant and material to establishing the guilt or innocence of the  
accused, and which can be appropriately and reasonably handled within the trial process.  
[134] Having regard for the seeming relevance and materiality of the appellantsevidence, the  
trial judge was required to receive it and to assess it to determine whether the claim under s. 35  
was made out. On this point, I highlight R v Seaboyer; R v Gayme, [1991] 2 SCR 577. In Seaboyer,  
McLachlin J., as she then was, commented for the majority on the time-hallowed principle of  
making full answer and defence to avoid the conviction of the innocent (at 611612):  
Canadian courts, like courts in most common law jurisdictions, have been extremely  
cautious in restricting the power of the accused to call evidence in his or her defence, a  
reluctance founded in the fundamental tenet of our judicial system that an innocent person  
must not be convicted. It follows from this that the prejudice must substantially outweigh  
the value of the evidence before a judge can exclude evidence relevant to a defence allowed  
by law.  
These principles and procedures are familiar to all who practise in our criminal courts.  
They are common sense rules based on basic notions of fairness, and as such properly lie  
at the heart of our trial process. In short, they form part of the principles of fundamental  
justice enshrined in s. 7 of the Charter. They may be circumscribed in some cases by other  
rules of evidence, but as will be discussed in more detail below, the circumstances where  
truly relevant and reliable evidence is excluded are few, particularly where the evidence  
Page 35  
goes to the defence. In most cases, the exclusion of relevant evidence can be justified on  
the ground that the potential prejudice to the trial process of admitting the evidence clearly  
outweighs its value.  
(Emphasis added)  
[135] By restating the issues as he did, the trial judge limited the evidence that he could consider.  
He narrowed the appellantsdefence to determining not just whether the appellants had a right to  
harvest where they were hunting and fishing, but whether the community that had been previously  
labelled the HMCONWS extended to those areas. The trial judges decision in that regard was the  
antithesis of the appellantsdefence, which was not based on a community or a settlement but on  
a nomadic right to harvest.  
[136] Notwithstanding the challenges with the approach the parties have taken in seeking to  
resolve complex constitutional claims through a criminal trial, I conclude that the summary  
conviction appeal judge erred by not finding an error in the trial judges decision. He ought to have  
concluded that the trial judge had erred by not considering all of the evidence tendered by the  
appellants going to the question of whether the mobility of the Métis peoples could ground a right  
to harvest in the areas identified. As my earlier analysis indicates, Powley did not require the trial  
judge to come to that conclusion; and, upon my review of the evidence, at least some of it is  
directed to the broader issues that the appellants raise.  
[137] The words of McLachlin C.J.C. in Cunningham must be repeated: the history of the Métis  
is one of struggle for recognition of their unique identity as the mixed race descendants of  
Europeans and Indians(at para 70). At some point, the Métis of Saskatchewan should be able to  
put forward their claim to a broad harvesting right in the north, central and southern part of the  
province. In short, the trial judge erred in law when he decided to narrow the appellantsdefence  
on the basis that claiming rights as part of the Métis nation comprising all of Saskatchewan and  
parts of Manitoba and Alberta is inconsistentwith Powley (Mid-Trial Ruling). The appellants  
were denied the right to make full answer and defence. The summary conviction appeal judge  
erred by sustaining that conclusion.  
Page 36  
D.  
The date of effective European control  
[138] In the new trial, it will be necessary to determine an effective date of control based on the  
right claimed by the appellants and the evidence that is adduced at the time. Since the evidence  
may change and may be viewed from a different perspective, it is neither necessary nor desirable  
for the Court to determine if the trial judge erred by fixing a date of control as of 1876 to 1881.  
[139] It is sufficient to note two issues, argued by the appellants, that the Court should not be  
taken as having decided.  
[140] In the first issue, the appellants argue that it was not open to the Crown to assert a different  
date of control in their trial than what the trial judge had found in Laviolette. As I have indicated  
previously, the Crown in Laviolette asserted that the date of effective control should be 1870, being  
the year when Canada acquired Ruperts Land from the Hudson Bay Company. But the Crown  
called no evidence in Laviolette to support this proposition and, indeed, admitted that the Métis  
were present in 1870. Based on the defence expert evidence, the trial judge held that the date of  
effective control was 1912. As mentioned, the Crown did not appeal Laviolette.  
[141] With respect to the second issue, the appellants argue that the evidence relied upon by the  
Crown in the within trial was directed to the treaty process in which they were not a part. As such,  
they say the trial judge made a legal error by basing his finding of a date of effective control on  
irrelevant evidence. They say further that the trial judge made no finding as to whether the Métis  
way of life changed as a result of European control, and the effect such a ruling might have on  
fixing the date of effective control.  
[142] To be clear, the Court in the present appeals has decided neither issue.  
E.  
The remedy  
[143] The appellants ask that the appeals be allowed and their convictions be overturned based  
on the finding that the Appellants possess s. 35 rights exercisablein the areas where they were  
harvesting.  
Page 37  
[144] This would require the Court to make two significant findings of fact, notably whether the  
Métis have a right to harvest in the north, central and southern parts of the province or the whole  
of it based on the mobile nature of these peoples and if that right continues. Such decisions are  
beyond the purview of an appellate court. Moreover, it is possible that the appellants have other  
evidence to adduce in support of their defence.  
[145] As such, there must be a new trial. If at all practical, the matter could be returned to the  
trial judge, whose understanding of the material is clearly demonstrated by Laviolette and this trial.  
In any event, efforts should be made to determine whether the historical evidence from both trials  
can be used as evidence in the next trial.  
VI. Conclusion  
[146] The appeals are allowed and a new trial is ordered.  
Jackson J.A.”  
Jackson J.A.  
I concur.  
I concur.  
Whitmore J.A.”  
Whitmore J.A.  
Kalmakoff J.A.”  
Kalmakoff J.A.  



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