Alberta Court Of Appeal Dismisses Claim But Modifies Powley Test To Acknowledge Historic Mobility Of Plains Métis

R. v. Hirsekorn, 2013 ABCA 242

Background and Procedural History

In 2010, Judge Fisher of the Alberta Provincial Court convicted Métis hunter Garry Hirsekorn of hunting outside a regular season and being in possession of wildlife without a valid wildlife permit contrary to the Alberta Wildlife Act.

Judge Fisher found that the political motive behind being charged and raising constitutional defenses to establish Métis rights in southern Alberta was an impermissible collateral attack on the Wildlife Act. He also held that the Métis had established no significant presence or historic rights-bearing community in what is now southern Alberta because the area was regarded by the Métis as "too dangerous" prior to Crown control. Consequently, Mr. Hirsekorn failed to meet the Supreme Court's test for Métis rights from R. v. Powley, 2003 SCC 43. Mr. Hirsekorn appealed.

The summary appeal judge reversed the trial judge's holding on collateral attack but did not accept Mr. Hirsekorn's argument that the Powley decision permitted the recognition of a rights-bearing mobile Métis community active throughout Alberta, or apply a different notion of the "pre-control" timeframe requirement in southern Alberta.

The Alberta Court of Appeal (the "Court") granted Mr. Hirsekorn the leave required to further appeal his case.

Issue

The primary issue dealt with by the Court was whether various elements of the Powley test had been purposively applied in a manner that acknowledged the circumstances of the "plains Métis" who were a mobile people that followed the buffalo.

Decision

The Court, relying on the Supreme Court's decisions in R. v. Marshall, 2005 SCC 43 and R. v. Côté, [1996] 3 S.C.R. 139, first acknowledged that their proper role in the proceeding was limited to relying on the trial judge's findings of fact, and evaluating whether he erred in applying the wrong test. If he did err in applying the wrong test, the Court was restricted to applying his findings of fact through the "lens" of the proper test.

The Court focused its analysis on four particular elements of the Powley test: (1) the characterization of the right, (2) the historic rights bearing community, (3) the relevant timeframe, and (4) whether the practice is integral to the distinctive culture of the plains Métis.

Characterization of the Right

Relying on the Supreme Court's decisions in R. v. Adams, [1996] 3 S.C.R. 101, R. v. Sappier; R. v. Gray, 2006 SCC 54, Mitchell v. Minister of National...