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The R v Powley Decision Twenty Years Later


Last week, October 22 marked the thirty year anniversary of the day a Métis father and son, Steve and Roddy Powley, shot and killed a moose near their home in Sault Ste. Marie and brought the animal home to provide meat to sustain their family over the winter. Steve tagged the kill and, instead of providing a hunting license number, wrote his Ontario Métis and Aboriginal Association membership number on the tag. This simple act resulted in a ten year legal battle after they were charged with unlawfully hunting moose and knowingly possessing game in contravention of Ontario’s Game and Fish Act [1].


September 19 marked the twentieth anniversary of the landmark Supreme Court of Canada (SCC) decision in R v Powley [2]. This decision confirmed, for the first time, that a Métis person can have an Aboriginal right to hunt for food under s 35 of the Constitution Act, 1982 [3]. This case modified the Van der Peet test [4] to make it applicable to the Métis. Most importantly, the pre-contact aspect of Van der Peet was modified to “reflect the distinctive history and post-contact ethnogenesis of the Métis” [5]. This aspect was changed to pre-control of the area by the colonial government. As well, the SCC outlined three broad factors as indicia of Métis identity for the purpose of claiming Métis rights under s 35: self-identification, ancestral connection and community acceptance.


After ten years of legal struggle, the SCC determined that Steve Powley did have a Métis right to hunt moose for food under s 35 of the Constitution Act, 1982. He satisfied the legal test through self-identifying, proving his ancestral connection to a traditional Métis community and proving that the modern Métis community accepted him as one of their own. Satisfying the legal test also required Steve Powley to establish that Sault Ste. Marie was a traditional Métis community based on the historical record.

 

In my reflection on attending the 35th IBA Conference (see the Respect and Recognition section of this post), I briefly mentioned the opening plenary session featuring Métis lawyer and Indigenous Peoples Council Jean Teillet’s discussion regarding her involvement in this groundbreaking case. In this session, she was joined by Jason Madden and Mitch Case. Jason Madden, another Métis lawyer, appeared alongside Jean Teillet at the SCC in the Powley case, as well as appearing before the SCC in the subsequent Métis rights cases. Mitch Case is a Regional Councilor for the Métis Nation of Ontario, representing the historic Sault Ste. Marie Métis community of which Steve Powley was a member, as well as a member of the Transitional Committee of the National Council for Reconciliation.


Being Métis, I found it fascinating to listen to Ms. Teillet discuss her memories of the case. I was shocked to learn that she first took on the case as an articling student and ran the initial trial in May 1998 by herself, after only having been called to the bar for two years, as well as running the appeal to the Ontario Superior Court on her own. She received more support at the Court of Appeal and the SCC, but continued to argue the case at all levels [6]. When she took the case on as an articling student, she had no idea that it would end up being such an important case for Métis rights.


Through this session at the IBA Conference, some aspects of the case I had wondered about were explained; in particular, why the landmark Métis rights case came from Ontario, rather from the Prairies. Ms. Teillet explained that she and others had also hoped it would be a case from the Prairies and that she had a promising case from Saskatchewan in R v Morin and Daigneault [7], but the Crown declined to appeal beyond the Saskatchewan Court of Queen’s Bench. Ontario was the only province willing to appeal a Métis rights case all the way to the SCC. As a result of these differing provincial politics, the landmark s 35 Métis rights case stems from an Ontario Métis man’s efforts to provide meat to sustain his family through the cold Sault Ste. Marie winter.


 

1. Game and Fish Act, R.S.O. 1990, c. G-1.

2. R v Powley, 2003 SCC 43.

3. Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982 c11.

4. R v Van der Peet, [1996] 2 SCR 507.

5. Powley, supra note 2 at para 14.

6. Bryan P. Schwartz, “Interview of Jean Teillet” (2018) 41:2 MLJ 311.

7. R v Morin and Daigneault, 1996 CanLII 12081 (SKPC), aff’d R v Morin, 1997 CanLII 11328 (SKKB).


Photo provided by Jean Cadorette via Wikimedia Commons <https://commons.wikimedia.org/wiki/File:Ceinture_fl%C3%A9ch%C3%A9e,_artisan_Jean_Cadorette.jpg>


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