Directeur des poursuites criminelles et pénales c Marchand

Background

In 2004, charges were brought against the defendants for hunting deer during a prohibited period and for unlawful possession of game. In 2008, one of the defendants was also charged with fishing without a licence and unlawful possession of fish.

The defendants first served the Attorney General of Québec with a notice of constitutional question under art. 95 of the Code of Civil Procedure in 2006, advising the Attorney General that they intended to ask the Court to declare that the provisions they were charged under were inapplicable. The defendants’ constitutional argument was based on their Métis status, alleging that the provisions in question infringed a Aboriginal rights protected under s. 35 of the Constitution Act, 1982. The defendants subsequently amended their notice of constitutional question twice in 2007.

In 2008, the matter before the Court of Québec was suspended while the defendants pursued declaratory judgment from the Superior Court of Québec on this same issue of Aboriginal rights. However, in December 2011, the defendants dropped their Superior Court matter while maintaining their constitutional arguments in the Court of Québec proceedings.

In September 2012, the Attorney General brought a motion to strike the defendants’ notice of constitutional question. In May 2013, the Court issued a decision that held the defendants’ notice of constitutional question to be prima facieinsufficient, but allowed them to file a new, more comprehensive notice. The defendants served a new notice of constitutional question on the Attorney General that was over fifty pages in length in June 2013, but the Attorney General responded by filing another notice to strike a few months later. The Court allowed the defendants to amend their notice of constitutional question once more in November 2013, but the Attorney General maintained its position that the notice was insufficient and again sought a motion to have it struck.

Motion to dismiss

The Court stated that a notice of constitutional question is not a mere formality and cited authority for such notice being required in order to respect the separation of powers in a constitutional democracy; democratic legislative choices can only be found unconstitutional if the government first has the opportunity to argue in support of their validity.

The Court then went on to discuss the Supreme Court of Canada’s 2003 decision in R. v. Powley, which set out the parameters within which asserted Métis rights may be found to be protected under s. 35 of the Constitution Act, 1982. The Court cited Powley for a ten-step analytical framework to determine whether an asserted Métis right is constitutionally entrenched. The Court held that while the defendants were not obliged to exhaustively describe the historic facts on which they relied for their asserted rights in their notice of constitutional question, they needed to provide sufficient detail to support their constitutional claims. The Court held that if, “on its face” [translation], a notice of constitutional question does not narrow the issues to be decided then it will be struck. While the Court did not find it was necessary for a notice of constitutional question to address all the questions in the ten-step analysis under Powley, it did find these ten steps made for a useful guide to determine the sufficiency of the notice.

Applying the Powley analysis to the defendants’ notice of constitutional question, the Court found that the defendants had claimed Aboriginal rights over an area that was framed too broadly (covering the entire Gaspé and Bas-St-Laurent regions of Québec). However, the Court held that it was not bound by the defendants’ characterization of the geographic scope of their asserted rights, exercising its discretion to narrow this scope.

The Court was more concerned by the defendants’ failure to set out a basis on which they might establish the existence of a historic community of Métis. While the defendants cited evidence of children being born of European/Indigenous unions in the area during the 18th and 19th centuries, as well as evidence that these children were labelled ‘Métis’, this did not permit the Court to conclude that a historic Métis ‘community’ likely existed in the area over which the defendants claimed hunting and fishing rights. Although it would not be necessary to prove the existence of a village or settlement at a particular location, the notice of constitutional question needed to at least point to an identifiable community, whether settled or nomadic.

The Court also found there was nothing in the notice of constitutional question that would allow it to conclude that there was a contemporary Métis community that could assert Aboriginal rights. While the defendants were founding members of an association called the ‘Métis Aboriginal Community of the Gaspésie and Bas-St-Laurent’ [translation], mere membership in this association did not allow the Court to conclude that, even at first glance, there might be a Métis community with some degree of continuity and stability and whose members had their own customs, ways of living and collective identity.

While the Court noted that the defendants did not have to set out their arguments in detail in the notice of constitutional question, they did need to state their claims and the facts supporting them with sufficient clarity. In this case, the Court found that the notice was far too general and embedded with historical information of variable relevance, allowing at most for the conclusion that there were people of mixed heritage in the relevant territory during different periods of history.

Since the defendants had been represented by counsel since 2007 and given numerous opportunities to clarify their notice to the Attorney General, the Court found that even a generous and liberal approach to art. 95 of the Code of Civil Procedure could not save their notice of constitutional question from being struck.