R v Powley

Powley extended s.35 to Métis Aboriginal rights. The Van der Peet test is modified for Métis: the relevant date is effective European control rather than first contact, recognising that Métis communities formed after contact.

Steve and Roddy Powley, Métis from Sault Ste Marie, were charged with hunting moose without a licence. They claimed a Métis Aboriginal right to hunt for food.

Do Métis have s.35 rights? What is the modified test?

Yes; modified test articulated. Hunting right recognised on the facts; convictions overturned.

Section 35(1) protects Métis rights as well as those of First Nations and Inuit. The test for a Métis right requires (1) identification of the historic Métis community, (2) identification of the contemporary rights-claiming community with continuity to the historic community, (3) verification that the claimant is a member, (4) identification of the relevant time (effective European control), and (5) showing the practice was integral to the distinctive Métis culture as of effective control.

The Court emphasised that Métis are not pre-contact peoples — they emerged from contact. The Van der Peet timing element must be modified accordingly. Membership in a Métis community requires self-identification, ancestral connection, and acceptance by the community.

Foundational Métis rights case. Followed by Manitoba Métis Federation v Canada (2013) on the Crown's honour-of-the-Crown duty, and Daniels v Canada (2016) on federal jurisdiction. Established the working definition of "Métis" for legal purposes.

R v Powley, 2003 SCC 43, [2003] 2 SCR 207.

McLachlin CJ, Iacobucci J, Major J, Bastarache J, Binnie J, Arbour J, LeBel J, Deschamps J, Fish J