Saskatchewan Court of Appeal orders new trial for Métis charged with illegal hunting

The Saskatchewan Court of Appeal has tackled, for the first time, 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.

In R v. Boyer, 2022 SKCA 62, three Métis individuals who were harvesting near land formerly declared as constituting the historic Métis community of Northwest Saskatchewan (HMCONWS) were charged for hunting or fishing for food in breach of wildlife and fisheries regulations.

The three accused men served notices of constitutional question on the Crown. They alleged the following:

• the applicable regulations went against their Aboriginal rights under s. 35(1) of the Constitution Act, 1982 and were thus unconstitutional
• The Métis – a migratory people who hunted and fished whenever they needed and wherever they found themselves by the time European control was first imposed over the territory now making up Saskatchewan – continued to have such rights
• The HMCONWS covered considerably more land than what R v. Laviolette, 2005 SKPC 70 provided, and included a right to hunt and fish for food in vast tracts of the province, which could extend to its entirety.

The Crown, relying on R v. Powley, 2003 SCC 43, applied to strike the notices and contended that the accused could claim Aboriginal rights under s. 35 on only a site-specific basis, not on a large geographical or province-wide basis.

The trial judge, in a mid-trial ruling, agreed that Métis harvesting rights should be addressed on a site-specific basis. He narrowed the s. 35(1) defence to the areas where the accused were hunting and fishing on the day that they were charged.

In the trial decision, the trial judge acquitted one of the accused, whose hunting area was indistinguishable from what Laviolette described as encompassing the HMCONWS, but convicted the other two men, whose harvesting land went beyond the HMCONWS. The summary conviction appeal judge of the Court of Queen’s Bench dismissed the appeals of the two remaining accused.

The Saskatchewan Court of Appeal allowed the appeals and ordered a new trial. First, the appellate court ruled that the trial judge and the summary conviction appeal judge both failed to approach the matter of Aboriginal harvest rights while keeping in mind the significant body of Supreme Court jurisprudence that continuously developed and affirmed Métis rights.

Second, Powley and other Supreme Court cases left open the possibility that s. 35 rights could develop differently for Indigenous peoples who were nomadic, as opposed to those who identified with a site-specific territory or a specific land area, the appellate court said. While most Saskatchewan trial court decisions took a site-specific approach, the appellate court was not bound by these rulings.

According to the appellate court, the trial judge erroneously interpreted Powley and narrowed the constitutional question. In effect, the issue arose of whether the trial judge’s decision respected the accused men’s rights to make a full answer and defence.

Third, the trial judge erred by limiting the appellants’ defence based on extra-territoriality, since neither provincial nor international borders could prevent Indigenous persons from invoking their s. 35 rights, the appellate court said. The trial judge’s narrowing of the appellants’ defence went beyond good trial management.

The summary conviction appeal judge also erred when it failed to point out the shortcomings in the trial judge’s decision, the appellate court added.

Lastly, the appellate court found it necessary for the new trial to determine an effective date of European control based on the right that the appellants claimed and on the evidence provided. The appellate court refused to rule on whether the trial judge erred in fixing the date of control, considering that the evidence could change or could be tackled in a different light.