Two Saskatchewan Metis men convicted of hunting and fishing violations have been granted a new trial.
Warren Boyer was fishing on Chitek Lake. He was charged with unlawful fishing in March 2014. Oliver Poitras was charged with unlawful hunting near Meadow Lake in November 2012.
During trial, both men agreed that they were harvesting just outside the previously declared boundaries as set out in case law for traditional Metis harvesting grounds.
The men raised a question of constitutionality, as to whether the entire province of Saskatchewan could be considered Metis traditional lands, claiming that prior to European settlement, Metis were migratory people, gathering food off the land wherever they found themselves, and that this courtesy should be extended presently.
However, the Crown brought a motion to strike the constitutional claim, arguing that Aboriginal rights only extend to a site-specific basis and not a large geographical area. The trial judge agreed with the Crown, preventing the men from presenting evidence mid-trial to support their argument. Boyer and Poitras were convicted.
The decision was appealed to the Court of Queen’s Bench, which denied the appeal. Yet the Court of Appeal vacated the conviction stating the constitutional question raised by Boyer and Poitras needs answering.
“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,” said the court decision. “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.”