[para2] The facts relating to the specific charges in the case at bar are not in dispute. With the consent of the Crown and defence, an agreed statement of facts was filed as Exhibit#1.
[para3] Steve Powley and his son, Roddy, shot a bull moose on October 22, 1993 at approximately 9 a.m. near Old Goulais Bay Road which is located north of Sault Ste Marie. The Powleys transported the moose to their residence in Sault Ste Marie. Later in the afternoon on October 22, two conservation officers arrived at the Powleyís home. The officers were advised by the Powleys that they had shot the moose in their possession earlier in the day. Neither Powley had a valid Ontario Outdoor Card or valid hunting licence to hunt moose.
[para4] After the moose had been killed, Steve Powley had affixed a tag to the ear of the moose. It was a hand written document detailing the date, time, and location of the kill. There was also a statement indicating that the animal was meat for the winter. Steve Powley signed the tag and included his Metis card number 4-088-1-0460.
[para5] At the time the charge was laid, Steve Powley was in possession of his Ontario Metis and Aboriginal Association card. This card indicated that he claimed aboriginal rights under the Robinson-Huron Treaty. Steve Powley's nationality was listed as Metis. Mr. Steve Powley's OMAA Application Form dated April 20, 1990 claimed fishing, hunting, trapping, wild rice harvesting, and timber rights. The reason listed for claiming the aforementioned rights was "to preserve my aboriginal heritage and the right to harvest natural resourcesthat my family has done since time immemorial".
[para6] Section 46 of the Game and Fish Act (supra) reads as follows:
No person shall knowingly possess any game hunted in contravention of this Act or regulations.
[para7] Section 47(1) of the Game and Fish Act (supra) reads as follows:
Except under the authority of a licence and during such times and on such terms and conditions and in such part of Ontario as are prescribed in the regulations, no person shall hunt black bear, polar bear, caribou, deer, elk, or moose.
NOTICE OF CONSTITUTIONAL QUESTION AS AMENDED DATED MAY 5, 1998
[para8] The defendants question:
i) the constitutionality, both generally and in their application to these Defendants, of s. 46 and s. 47(1) of the Game and Fish Act, R.S.O. 1990, c. G-1
and,
ii) the constitutionality, both generally and in its application to these Defendants, of the Ontario of Natural Resourcesí Interim Enforcement Policy, May 28, 1991 enacted pursuant to the Game and Fish Act, R.S.O., 1990, c. G-1.
[para9] Counsel for the Powleys relies on the following material facts that give rise to the constitutional questions:
1) These Defendants are charged with unlawfully hunting moose contrary to s. 46 and unlawful possession of moose meat contrary to s. 47(1) of the Game and Fish Act, R.S.O., 1990, c. G-1.
2) These Defendants are the s. 35(2) of the Constitution Act, 1982 and support themselves inter alia through exercising their aboriginal or treaty right to hunt. These Defendants were exercising their aboriginal or treaty rights by hunting within their traditional territory or treaty area when they were apprehended on or about October 22, 1993. They were subsequently charged on or about October 29, 1993.
3) The Ontario Ministry of Natural Resourcesí Interim Enforcement Policy, May 28, 1991 protects an aboriginal or treaty right to hunt and has the effect of providing an exemption for status-Indians from the application of s. 46 and s. 47(1) of the Game and Fish Act, R.S.O., 1990, c. G-1. The Interim Enforcement Policy, May 28, 1991 does not provide an equal exemption for Metis, thereby maintaining the application of the Game and Fish Act, R.S.O., 1990, c. G-1 to the Defendants. Therefore these Defendants were charged without consideration of their aboriginal or treaty right to hunt.
[para10] Counsel for the Powleys relies on the following legal basis for the constitutional questions:
These Defendants are Metis and therefore claim an aboriginal or treaty right to hunt. The Defendants submit that:
1) ss. 46 and 47(1) of the Game and Fish Act, R.S.O., 1990, c. G-1 are of no force and effect with respect to them by virtue of s. 52 of the Constitution Act, 1982;
and
2) the Ontario Ministry of Natural Resourcesí Interim Enforcement Policy, May 28, 1991 does not recognize or affirm Metis aboriginal or treaty rights and is therefore inconsistent with s. 35 of the Constitution Act, 1982, and/or it does not give equal benefit of the law to Metis and therefore violates s. 15 of the Charter of Rights and Freedoms.
s. 35 of the Constitution Act, 1982 reads as follows:
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, ìaboriginal peoples of Canadaî includes the Indian, Inuit, and Metis peoples of Canada.
s. 52(1) of the Constitution Act, 1982 reads as follows:
The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect.
s. 15(1) of the Canadian Charter of Rights and Freedoms reads as follows.
Every individual is equal before and under the law and has a right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
[para11] When Mr. Ruby commenced his oral argument, he noted that the Powleysí primary position was that (1) they were Metis within s. 35 of the Constitution Act (2) they have an existing Aboriginal right to hunt or in the alternative, a treaty right to hunt and (3) the Game and Fish Act is not applicable to them because it violates s. 52 of the Constitution Act and therefore they do not need a constitutional exemption. In the alternative, constitutional exemption is sought.
[para12] Mr. Ruby then advised the court that they were not relying
on any arguments based on the equality rights of s. 15 of the Charter.
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