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Court and Tribunal Decisions – Canada
Court of Appeal for Ontario (McMurtry CJO, Abella JA, Sharpe JA)
23 February 2001
Métis people’s right to hunt for food — Provincial licensing requirement — aboriginal rights recognised and affirmed in s 35 of the Constitution Act 1982 — no valid justification for infringing aboriginal rights — convictions set aside — stay of order for a year to facilitate consultation and negotiation.
In October 1993, the respondents shot and killed a bull moose without a license as required under Ontario’s Game and Fish Act 1990 (now the Fish and Wild Conservation Act 1997) and were charged under the Act. The respondents were members of the Métis community in the Sault Ste Marie area of northern Ontario. Status Aborigines in the Sault Ste Marie area had a treaty right to hunt for food pursuant to the 1850 Robinson-Huron Treaty. The Métis people were not parties to the treaty and do not have status under Canada’s Indian Act 1985. The Ontario Government had been negotiating an agreement with the Métis Nation of Ontario (MNO) recognizing Métis hunting rights, but no agreement was reached. The MNO implemented its own ‘Captains of the Hunt’ harvesting policy with conservation as its main objective. In 1996 Ontario informed the Métis that it would enforce its regulations against Métis hunters because it did not have adequate historical evidence to assess Métis claims.
The respondents’ defence was that the Game and Fish Act violated their aboriginal right under s 35 of the Constitution Act 1982 to hunt for food, and therefore could not be applied to them.
The trial judge in the Provincial Division of Ontario’s Court of Justice found that the respondents were members of an historic Métis community with a constitutional right to hunt for food, that Ontario’s hunting regulations, without justification, violated that right and that therefore the charges against the Powleys should be dismissed. He rejected the Crown’s argument that since moose were scarce when the Métis community was flourishing in the early 1800s, the Métis today could not claim a right to hunt moose. The trial judge held that the Métis had an aboriginal right to hunt for food that was not species specific. He also rejected the Crown’s contention that after 1850 there had been a fatal break in the continuity of the Métis community at Sault Ste Marie.
The Crown appealed this decision to a Superior Court judge of the General Division of Ontario’s Court of Justice who dismissed the appeal. The Crown then appealed to the Ontario Court of Appeal.
1. The judges below did not err in characterising the right at issue as the right to hunt or fish for food rather than the right to hunt or fish for a particular species.
2. The trial judge made a clear finding that hunting was an integral part of Métis culture prior to the assertion of effective control by European authorities.
3. There is no reason to interfere with the trial judge’s conclusion that there exists today a Métis community in the Sault Ste Marie area in continuity with the historic Métis community, whose members continue to exercise the practice of hunting for food, and that the respondents are accepted as members of that community. Therefore the respondents have demonstrated that they are entitled to exercise an Aboriginal right to hunt for food within the hunting territory of that community.
4. Because Ontario’s regulatory scheme fails to accord any recognition or priority to the Métis’ right it fails to meet the requirement that a government limitation on a constitutionally protected aboriginal right must be in keeping with the Crown’s trust-like relationship with aboriginal peoples.
5.The social and economic benefit to the people of Ontario derived through a combination of recreational hunting and non-hunting recreation’ is at a level of such generality as to be virtually incapable of constituting a valid legislative objective for the purpose of limiting a s 35 right.
6. The respondents are entitled to acquittals but the appellant’s request for a stay of this judgment for a period of a year should be granted to allow the appellant to consult with the stakeholders and develop a new moose-hunting regime that is consistent with s 35 of the Constitution Act 1982.
I agree with Sharpe JA.
I agree with Sharpe JA.
...
13. As the essential elements of the offence were admitted, the evidence led at the trial related to the respondents’ claim of a s 35 aboriginal right and the appellant’s contention that any infringement of the right was justified. The evidence consisted of expert testimony relating to the history, culture and practices of the Métis people. Evidence was also led as to the contemporary situation of the Métis community in Sault Ste Marie and the activities of the Ontario Métis and Aboriginal Association (OMAA) and the MNO.
14. Extensive historical evidence was led at trial with respect to the historic Métis community at Sault Ste Marie. Dr. Arthur Ray, Professor of History at the University of British Columbia, an expert witness called by the respondents whose evidence was accepted by the trial judge, divided the history of the Sault Ste Marie Métis into three parts following the ‘pre-European contact’ period; the ‘formative period’ from the 1640s to the 1790s; the ‘establishment period’ from 1790-1850; and the ‘post treaty’ period, from 1850 forward.
15. The first Europeans visited the site of what is presently Sault Ste Marie in the early 1600s when the area was occupied by Ojibway Indians.[1] The way of life of the local Ojibway was based on a seasonal cycle of fishing from lakeside settlements during the ‘open water’ season, and hunting and trapping in the interior during the winter.
16. By the 1640s, French traders and missionaries began to travel regularly through the Upper Great Lakes, establishing a post at Sault Ste Marie by 1650. Some of the French traders took on native spouses in ‘mariages à la façon du pays’, with whom they had children of mixed European and native ancestry. ...
17. The Métis presence in Sault Ste Marie fluctuated in the 1700s. There is no record of a Métis community in the early years of the century. The Treaty of Paris in 1763 ended French-British hostility in this area and marked the formal transfer of New France to British sovereignty. With the signing of this treaty, the British started to move into the area, and the French and many of the Métis began to move west. Unions between Scottish employees of the Hudson’s Bay Company and native women produced another strain of Métis children. By 1777, the settlement at Sault Ste Marie had grown but still only consisted of approximately 10 houses. In 1797, the Jay Treaty confirmed that the St Mary’s River would serve as the border between the United States and British North America. The fur trade expanded at a rapid pace with intense competition between the Hudson’s Bay Company and the North West Company.
18. In the late 1700s, the mixed-blood families began to evolve into a new and distinct aboriginal people through a process known as ethnogenesis. The high-water mark for the Great Lakes Métis at Sault Ste Marie was the first half of the 19th century. During this period, the majority of the inhabitants of Sault Ste Marie were of mixed ancestry, commonly referred to at the time as ‘half-breeds’. Sault Ste Marie is mentioned in the Report of the Royal Commission on Aboriginal Peoples (Ottawa, Royal Commission on Aboriginal Peoples, 1996) (the RCAP Report) vol 4, p 220, along with Red River and White Plains in Manitoba, Batoche in Saskatchewan, and St Albert in Alberta as one of ‘the better known’ Métis settlements. Sault Ste Marie was an important focal point for the Métis culture during this era. According to the RCAP Report vol 4 at p 260, ‘[t]he Métis community at Sault Ste Marie, a hub of early fur-trade activity, has a particularly long and eventful history. It would appear, in fact, that the area was largely under Métis control from the late 17th to the mid-19th century.’ The historic Métis community of Sault Ste Marie is considered by the Métis National Council, and was accepted by the RCAP Report, as being part of the Métis Nation, the historic collective of Métis people who lived and still live in the ‘Métis Homeland’ of north central North America.
19. The Métis continued the subsistence hunting and fishing practices of their Ojibway ancestors, but at the same time occupied a distinctive niche in the fur trade economy as wage-earning labourers, independent traders, skilled tradespeople and small-scale farmers. They evolved into a distinct aboriginal culture with its own community structures, musical tradition, mode of dress, and language — Michif — a blending of French, English and aboriginal sources.
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21. Towards 1850, aboriginal dominance in the Sault Ste Marie area began to wane under the pressures of European settlers. The village at Sault Ste Marie was first surveyed in 1846. In 1849, a group of Indians and Métis from Sault Ste Marie, dissatisfied with mining development on the Canadian side of Lake Superior, occupied a mining camp at Mica Bay. The incident prompted the Government of Canada to dispatch William Benjamin Robinson in 1850 to negotiate treaties. Robinson was instructed to ‘endeavour to negotiate for the extinction of the Indian title to the whole territory on the North and North Eastern coasts of Lake Huron and Superior’.
22. Robinson concluded the important Robinson-Huron Treaty of 1850. He refused to deal directly with the ‘half-breeds’ but told the Ojibway chiefs they could share their treaty entitlements with the ‘half-breeds’ if they wished.
23. The government did, however, respond to one Métis demand. In 1852, the Crown made lands available for sale to the Métis inhabitants of Sault Ste Marie at a favourable price. Many of the original Sault Ste Marie Métis families, however, subsequently sold their lands and moved from the original town site. During the 1860s, Sault Ste Marie was increasingly settled by Europeans and Americans. Between 1800 and 1885, some Sault Ste Marie Métis migrated to the Red River area. Others moved to the United States. However, it is clear that the descendants of the original Métis families did not disappear from the Sault Ste Marie area. Some remained in the town and others moved to smaller communities in the immediate area of Sault Ste Marie. A significant number of families joined the local Ojibway bands on the near-by Batchewana and Garden River reserves. By 1890, 191 of 285 Batchewana band members were Métis, as were 199 of 412 Garden River band members.
24. The status of the Sault Ste Marie Métis community following 1850 is a contested issue, and I will return to it in greater detail later. The presence of a distinct Métis community in the Sault Ste Marie area was considerably less visible from the later years of the 19th century until the 1970s when Métis organizations were formed and the Métis people of the region began to assume a more visible profile. The constitutional debates of the 1980s and 90s brought about a strong assertion of Métis identity and Métis rights nationally, culminating in the inclusion of the Métis peoples in the Constitution Act 1982, s 35 and the draft Métis National Accord that formed part of the Charlottetown Accord in 1992.
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74. Aboriginal rights are guaranteed by s 35 of the Constitution Act 1982. It is clear from the text of s 35 that the Métis peoples of Canada had, as of the date of the enactment of the section, ‘existing’ rights, and that those rights have now acquired constitutional protection. There is little jurisprudence dealing directly with the nature of the rights of the Métis peoples guaranteed by s 352. Métis claimants have succeeded in establishing claims at the trial level in a number of cases in Manitoba, Saskatchewan and Alberta ... However, this is the first case on the subject to be decided by an appellate court.[2]
75. I begin with a cautionary note. At such an early stage of development in this area, a provincial appellate court must approach its task with due regard to the importance and complexity of aboriginal rights. It is impossible to define the rights of an entire people within the confines of one case. As the record in this case so amply demonstrates, claims of aboriginal rights are intensely fact specific, and involve a close, careful and detailed scrutiny of events long past. Recognition of a right on one set of facts does not necessarily mean that the right will be made out on the next set of facts. We must guard against the temptation to pronounce broadly upon all possible aspects of the rights of the Métis people and should instead confine ourselves to what is necessary for the resolution of the case before us. ...
77. As with all constitutional rights, the interpretation of aboriginal rights calls for a purposive approach. Two fundamental purposes for the constitutional protection of aboriginal rights have been identified. The first purpose is the recognition and respect for the prior occupation of the land by distinctive aboriginal societies. As Dickson CJ and La Forest J explained in R v Sparrow [1990] 1 SCR 1075 (Sparrow) and as was held in Calder v AGBC [1973] SCR 313 at 352, aboriginal rights are ‘derived from the Indians’ historic occupation and possession of their tribal lands’. In R v Sioui [1990] 1 SCR 1025 at 1054, Lamer CJ stated that recognition of the legal significance of prior occupation is deeply rooted in our common law tradition and was reflected in the policy of the British crown from the earliest days of European settlement. Lamer CJ referred to the judgment of Marshall CJ in Worcester v Georgia 31 US [1832] USSC 39; (6 Pet.) 515 (1832) (USSC) at 548-9, stating that Great Britain considered these indigenous societies ‘as nations capable of maintaining the relations of peace and war; of governing themselves, under her protection; and she made treaties with them, the obligation of which she acknowledged’. ...
78. It is apparent that when analyzing Métis claims, the implications of their distinctive feature as the post-contact descendants of both the Indians and the early European visitors has to be considered. I will return to the question of a distinctive purposive interpretation for Métis rights after outlining the other aspects of the approach taken by the Supreme Court of Canada with respect to aboriginal claims generally.
79. The second fundamental underlying purpose of s 35 aboriginal rights, as expressed by Lamer CJ in R v Van der Peet [1996] 2 SCR 507 (Van der Peet) at 539, is that the provision provides ‘the constitutional framework through which the fact that aboriginals live on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown’. Section 35 provides the bridge that facilitates the recognition and respect for prior occupation by the aboriginal peoples on the one hand and the reality of Crown sovereignty on the other.
80. In addition to these two fundamental purposes for s 35, it has been held that ‘a generous, liberal interpretation of the words in the constitutional provision is demanded’ (Sparrow at 1106, Van der Peet at 536) ... As has been so often stated in relation to legislation, treaties and constitutional provisions defining aboriginal rights, a generous and liberal interpretation is called for as the honour of the Crown is at stake.
...
94. The Métis peoples were not here before contact between the Indian or Inuit peoples and the Europeans. The very concept of prior occupation that lies at the heart of aboriginal rights necessarily requires modification to deal with the distinctive history of the Métis. The Supreme Court of Canada adverted to this in Van der Peet when enunciating the test for s 35 aboriginal claims. Van der Peet dealt with a claim by one of Canada’s ‘Indian’ peoples whose rights derive from historic occupation and use prior to the coming of the Europeans. Lamer CJ, at 558, explicitly recognized that the test for Indian rights was not necessarily determinative of Métis rights and warned that the test must be read carefully in relation to the claims of Métis people whose origins, history and culture is both indigenous and European ...
95. The appellant agrees that the requirement in Van der Peet that there be an existing aboriginal community prior to European contact must be modified to deal with Métis claims. The appellant accepts that a period of time must be allowed post-contact to enable Métis communities to come into existence. It was found by the trial judge, and it is more or less common ground between the parties, that the Métis society flourished in the Sault Ste Marie area from the early years of the 19th century until 1850 and the signing of the Robinson-Huron Treaty. The appellant submits that the cut-off date for the assessment of Métis practices should be the date of effective Crown sovereignty and for the purpose of the appeal is content to have that date fixed at 1850.
96. The respondents accept that there must be a cut-off date but say that it should be determined by the date of ‘effective control’ by the European settlers, 1850. As the parties agree on the date, in the present case nothing turns on this difference, if any, between the assertion of sovereignty and effective control.
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106. The appellant submits that the respondents’ claim for an aboriginal right must be characterized specifically as the right to hunt moose and that the lower courts erred in characterizing the right in terms that are not game-specific. The respondents submit that the trial judge and the Superior Court judge on appeal correctly characterized the right in more general terms as the right to hunt for food.
107. The correct characterization of the right could determine the result of this appeal given the evidentiary record and the findings of the trial judge. The Ojibway ancestors of the Métis did hunt moose, as did the Sault Ste Marie Métis in the late 1700s and early 1800s. However, it was precisely during the crucial early part of the 19th century, when the Métis community flourished, that moose and most other big game was in short supply. The evidence led at trial established that by the 1820s until well after 1850, the moose population in the area was in serious decline as a result of the frenetic activities of the fur trade. Deer were also scarce. The only big game available for hunting was bear. It follows that on this record, if the respondents can only succeed by showing that the pre-1850 Métis community engaged in moose hunting and that moose hunting was an integral aspect if Métis culture, they would have the difficult task of overcoming the fact that precisely at the point when the community was flourishing, there were few if any moose to hunt. On the other hand, the trial judge found that subsistence hunting remained an important activity and that the hunting practices of the Métis have to be seen as an element of a flexible subsistence economy capable of adapting to cyclical changes in the availability of fish and game. If the right is classified as non-game specific hunting, the claim may be more readily made.
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111. In my view, to characterize the right in the game specific terms suggested by the appellant would give undue emphasis to the regulatory concerns of today and pay insufficient attention to the aboriginal perspective. The right to hunt moose is at issue here because the regulation of moose hunting is the focus of the statutory prohibition. To insist that the traditional aboriginal practice grounding the modern right must conform precisely to the terms of the modern regulatory regime risks ignoring the aboriginal perspective. A traditional aboriginal practice may involve what is, from the aboriginal perspective, a single identifiable activity that has a particular meaning or significance to the aboriginal community. From a modern regulatory perspective, that same activity may be viewed as a collection of discrete practices that are accorded disparate treatment. We should not characterize the right solely from the modern regulatory perspective.
...
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120. While the Métis are recognized in s 35 as distinct ‘peoples’, they are peoples with bicultural origins. No culture, however distinctive, is free from the influences of those who came before. The distinctive Métis culture necessarily drew heavily upon the aboriginal ancestors of the Métis. When one is attempting to identify the ‘aboriginal’ rights that are protected by s 35, I find it difficult to see why one should be precluded from taking into account the traditional practices of the ‘aboriginal’ ancestors in assessing their significance to the later culture. Indeed, the appellant has submitted that a practice will qualify for s 35 purposes only if it was a practice of the aboriginal ancestors of the Métis. I do not accept that proposition, and neither do I agree with the somewhat contradictory submission that pre-contact practices have no relevance.
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126. In my view, on this record, there is evidence capable of supporting the trial judge’s finding that hunting was integral to the culture of the Métis. In the early years of the century, the Métis essentially continued the practices of the Ojibway and hunted moose. In the mid-19th century when game was scarce, the Métis, like their Ojibway cousins, turned to fishing for sustenance, but they did not abandon hunting. A hallmark of both societies was the ability to adapt in the face of scarcity in order to avoid starvation. The temporary scarcity of moose and other big game did not eradicate the hunting habits that the Métis had inherited from their Ojibway ancestors. It merely put moose hunting in suspension until the cycle turned and the big game returned.
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132. The appellant argues that the shift in focus of the Sault Ste Marie Métis community from the town before 1850 to the nearby Indian reserves after the signing of the Robinson-Huron treaty in 1850 represented a fatal rupture with the past. In my view, it was open to the trial judge on this record to reject the contention of the appellant that the Métis community merged into the bands. First, not all Métis moved to the reserves. Even the report of the appellant’s expert witness Dr. Jones makes this clear: ‘judging from ... entries in the 1901 census, several hundred people of mixed Aboriginal/non-Aboriginal ancestry continued to reside at the Sault at this time, both on and off the Indian Reserves.’ Second, there was evidence that even those who did move to the reserves tended to be viewed as Métis, both by the Ojibway Band members and by government officials. As noted by the RCAP Report vol 4 at 261, after 1875, the government ‘made a major effort to eliminate Métis people from the rolls’.
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134. In assessing whether the Sault Ste Marie Métis community maintained sufficient existence and continuity with the past to qualify for recognition for rights purposes, the trial judge took into account certain social and political forces antithetical to the Métis. Among these were the explosive and dramatic events concerning the Métis in Western Canada in 1870 at Red River and 1885 in Saskatchewan. There was evidence that the Métis were at times rejected as full members of both aboriginal and non-aboriginal societies. The respondents led the evidence of Olaf Bjornaa who testified that he and his sister were denied access to the reserve school because they were not ‘Indian’ but were also rejected by the town school because they were too ‘Indian’. There was considerable evidence from lay and expert witnesses that the Métis people have been the victims of discrimination, ostracism and overt hostility from the 19th century forward. That sorry history is fully documented by the RCAP Report vol 4, Chapter 5.
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150. It is common ground among the parties and the intervenors that at a minimum, self-identification and community acceptance are required attributes of community membership for purposes of asserting a s 35 right. The more difficult issue is whether it is necessary to establish a direct genealogical link to the historic Métis community that is the source for the s 35 right.
151. There is no uniformly accepted definition of who is a Métis and certainly no precise test for Métis status for the purposes of s 35. As the evidence in this case shows and as noted by the RCAP Report, there are many individuals, including some in the Sault Ste Marie area, who identify as Métis but who do not have a genealogical connection to an historic Métis community.
152. One reason for competing definitions of Métis is undoubtedly that different definitions may well be appropriate for different purposes. The RCAP Report’s recommended definition was intended primarily to define membership for purposes of nation to nation negotiations. That definition may or may not be appropriate for s 35. I agree with the submission of the Métis National Council that the test of who can exercise s 35 harvesting rights may not define who the Métis Nation and its members are for all other purposes.
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155. I agree with the respondents that this is not the appropriate case to determine whether or not proof of ancestry is necessary. As it is undisputed that the respondents are able to trace their ancestry to the historic Sault Ste Marie Métis community, they satisfy the most demanding test. Consequently, this issue was not fully canvassed at trial, nor indeed, was it dealt with to any significant extent before this court. The issue is one of obvious importance to the full definition and scope of Métis rights protected by s 35 and in my view, its resolution should await a case where the issue is germane to the result and is fully argued by the parties.
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157. It is well established that s 35 rights, like other rights protected by the constitution, are not absolute. Aboriginal rights are not subject to s 1 of the Charter, but they may be limited if the limitation satisfies the test of justification established in Sparrow. As the respondents have established their s 35 right, and as the appellant does not deny that if a right is established, the Game and Fish Act infringed that right, the onus shifts to the appellant to justify the infringement.
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162. The appellant led evidence to show that the moose population in the wildlife management unit in which the respondents shot a moose is below what is considered to be a satisfactory level. There was also evidence that the demand for moose in the area greatly exceeds what government biologists consider to be available for harvest. Conservation has been found to be a valid legislative objective: see for example Sparrow, at 1113; R v Gladstone [1996] 2 SCR 723 (Gladstone), at 775. I do not understand the respondents to dispute that conservation is an important objective capable of justifying a limit on s 35 rights.
163. Accordingly, I pass to the second stage and consider whether the right has been limited in a manner in keeping with the fiduciary duty of the Crown. ...
164. I agree with the findings of the trial judge and the Superior Court judge on appeal that the appellant failed to satisfy the second branch of the justification test. The regulatory scheme fails to accord any recognition or priority to the Métis right. In my view, this is fatal to the contention that the limitation is in keeping with the Crown’s trust-like relationship with the Métis people. First, in relation to other holders of aboriginal rights — Indians who enjoy a treaty right to hunt - the current scheme places Métis rights holders at an obvious disadvantage. Indian hunting rights are given full recognition while those of the Métis are completely ignored. While I accept that conservation may justify some restriction on the protected right, I fail to see how the legislative objective of conservation can justify this blatant disparity in treatment between the two rights-holders.
165. Second, in relation to non-aboriginal hunters, Métis rights holders are given no priority. The failure to attach any weight whatsoever to the aboriginal right flies in the face of the principle that aboriginal food hunting rights are to be accorded priority.
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167. The appellant also relied on a secondary objective, described by the trial judge as,
[t]he social and economic benefit to the people of Ontario derived through a combination or recreational hunting and non-hunting recreation. ...
168. In my view, ‘the social and economic benefit to the people of Ontario derived through a combination of recreational hunting and non-hunting recreation’ is at a level of such generality as to be virtually incapable of constituting a valid legislative objective for the purposes of limiting a s 35 right. ...
171. The appellant concedes that if the respondents are successful, their convictions must be set aside and acquittals entered. However, the appellant asks this court to stay the operation of its order for a period of one year to allow the appellant to consult with the Métis communities and other aboriginal interests and to develop a new moose hunting regime that is consistent with the Constitution Act 1982, s 35.
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173. In my view, in the circumstances of this case, a stay is appropriate. I reach that conclusion for the following reasons. At issue here is the conservation and allocation of a scarce natural resource. As is clear from the discussion of the justification issue, this is not a situation where the constitutional right inevitably prevails over all other considerations. Sparrow and the cases that follow make clear that conservation of a scarce natural resource is of paramount concern. In the appropriate circumstances, conservation may trump the aboriginal right. Indeed, the very existence of the aboriginal right may depend upon conservation measures being taken. The demand for the scarce natural resource may exceed what nature can supply.
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175. The design of an appropriate regulatory regime must take a number of factors into account. In addition to conservation, the s 35 rights of the Métis have to be reconciled with the rights of other aboriginal groups. While aboriginal food hunting rights must be given priority, the interests of recreational hunters and the tourism industry are also entitled to consideration. In short, s 35 Métis rights are an important factor that the government of Ontario must respect in designing an appropriate regulatory regime, but they are not the only factor. The courts have an important role in assessing the balance struck by the government in the design of its regulatory scheme, but courts cannot design the regulatory scheme.
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177. A stay should facilitate consultation and negotiation between the government and the aboriginal community. Both the trial judge and the Superior Court judge urged the government and representatives of the Métis peoples to enter good faith negotiations with a view to resolving s 35 claims. I endorse their suggestion.
For the Appellants:
Aboriginal Legal Services of Toronto:
Brian Eyolfson
Ontario Métis Aboriginal Association:
Robert MacRae
Congress of Aboriginal Peoples:
Joseph Magnet
Métis National Council:
Clem Chartier
For the Respondents:
Jean Teillet, Arthur Pape, Lori Sterling, Peter Landmann
For the Moving Party Her Majesty the Queen:
Peter Lemmond
[1] Footnote for paragraph 1, per Sharpe JA: In this judgment, I will use the word ‘Indian’ in the same way it is used to describe one of the ‘aboriginal peoples of Canada’ in the Constitution Act 1982, s 35(2).
[2] The decision of this court in R v Perry (1997) 33 OR (3d) 705 dealt with the claim that exclusion of Métis from the Interim Enforcement Policy amounted to a denial of s 15 equality rights but did not deal with s 35.
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