Boyer v. The Queen | May 31, 2022

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

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 Court’s 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

Saskatchewan” or 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 Crown’s interpretation of Powley should not be

adopted.

Page 2

[6]

The trial judge accepted the Crown’s 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 Queen’s 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. Boyer’s and Mr. Poitras’s 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 Court’s 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. 982–985 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 “community” has 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. George’s 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 Crown’s 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 Crown’s position that

the “date of effective control was 1870, being the date when Rupert’s 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 community’s 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 s’entend 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. Boyer’s

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 Canada” within 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 25–30 km directly

south of the most southerly end of Green Lake, which lake and hamlet lie adjacent to the

historic Carlton–Green 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 “Indian” or “Indians” from 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 Defendant’s 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 Defendant’s 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 Crown’s 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 Court’s 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 Respondents’ characterization of both the community and the rights at issue has

been specifically rejected in a number of court decisions, including the Queen’s 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 Respondents’ attempt to re-litigate these issues in light of the above-noted case law

is also an abuse of the Court’s 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 Court’s 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 Court’s 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, it’s 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 he’s 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 accused’s 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 ‘Indians’ in 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 exercise” than

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

Saskatchewan’s agreement” (at para 12(f)). In the result, he concluded that that “the Métis are not

included in the term ‘Indians’ in 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. Tough’s and Mr. Thornton’s 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 latter’s 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

HMCONWS” and (b) “Dr. Evans testified that a Métis community emerged at Jackfish Lake by

the late 1880’s/early 1890’s, 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.

¹Pelican 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 Queen’s Bench

[58] The appeal to the Court of Queen’s 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

“people” with “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 judge’s 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 appellants’ assertion of a constitutional right

to harvest

[64] The resolution of the appellants’ claim 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 Court’s observation that other “constitutional

and statutory provisions are better suited, and were actually intended, to fulfill this more wide-

Page 18

ranging purpose” of providing a “source of the Crown’s or the province’s 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 Alberta–Métis 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 Court’s 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 Crown” and 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 24–25 [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 Tsilhqot’in Nation v British Columbia,

2014 SCC 44 at paras 32–35, [2014] 2 SCR 256 [Tsilhqot’in]. 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 courts’ thinking 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 appellants’ notices 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 judge’s 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 49–74):

(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. 35’s protection of the

aboriginal rights of Métis people, and answer the question of the kinds of claims which fall

within s. 35(1)’s scope when the claimants are Métis. The fact that, for other aboriginal

peoples, the protection granted by s. 35 goes to the practices, customs and traditions of

aboriginal peoples prior to contact, is not necessarily relevant to the answer which will be

given to that question.

(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

Canada’s 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 Crown’s 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. Francis” in

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

d’exploitation 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 appellants’ broad

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 Kw’alaams Indian Band v Canada

(Attorney General), 2011 SCC 56, [2011] 3 SCR 535 [Lax Kw’alaams Indian Band].

[96] In Lax Kw’alaams 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. Powley’s 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 peoples’ right 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], aff’d (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 1800’s” (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 Qu’Appelle 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 Kw’alaams 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

judge’s 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 appellants’ notices 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, it’s 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:

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[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 “community” was 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 appellants’ defence 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 accused’s constitutional right

to make full answer and defence. It also undercuts society’s 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. 47–48.

(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 Crown’s 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 judge’s decision, the Crown submits that the Mid-Trial

Ruling was simply a “re-characterization of the issues” to 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 Kw’alaams 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 appellants’ case, 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 peoples’ lifestyle, 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 collective’s 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 people’s 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 lifestyle” of the Métis (at

para 53; see also para 15). Given the breadth of the claim, it is similar to the appellants’ claim.

[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 period” in 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 court’s approach in Hirsekorn is consistent with the court’s approach in William v

British Columbia, 2012 BCCA 285, [2012] 10 WWR 639, rev’d 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

Tsilhqot’in, depend on rights to use lands that extend well beyond the definite tracts that

may be found to be subject to Aboriginal title. The Tsilhqot’in 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 Tsilhqot’in is not a patchwork of

unconnected “postage stamp” areas 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 appellants’ evidence, 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 611–612):

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 appellants’ defence 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 judge’s decision in that regard was the

antithesis of the appellants’ defence, 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 judge’s 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 appellants’ defence

on the basis that “claiming rights as part of the Métis nation comprising all of Saskatchewan and

parts of Manitoba and Alberta is inconsistent” with 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 Rupert’s 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 exercisable” in 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.

“Whitmore J.A.”

Whitmore J.A.

“Kalmakoff J.A.”

Kalmakoff J.A.