Powley Case
Voyageur Articles
The Powley Case at the Supreme Court of Canada
by Tom Spaulding
Monday, March 17th, dawned with a surprise. Ottawa is not
usually thought of as prone to fog, particularly a thick and
clammy fog. Flanked by the West Block on one side and the
Statistics Canada building on the other, the Supreme Court
building should be easy to see and identify. However, on the
morning of the 17th I actually had to ask which way to turn
while within a couple of hundred yards of it. It’s less
than one hundred yards from Wellington Street, but I couldn’t
see it.
I suppose most of us tend to look for signs and omens. Did
this odd weather have any significance? This, the 17th, after
all, is a day marking an ultimate. For Steve Powley this is
the last day in a ten year battle for justice. For Jean Teillet
the day marks an incredible achievement, as a lawyer, as a
Métis, and as the great grand niece of Louis Riel,
for this is the day she will defend Steve Powley and Métis
rights in the Supreme Court of Canada. For the Métis
Nation of Ontario, indeed, for all the Métis of Canada,
this day may well mark the most important event since the
trial of Louis Riel. I couldn’t help wondering: what
does this thick wet white fog mean?
Arriving at the steps leading up to the front entrance of
the Supreme Court building I found exactly what I expected.
An hour before the building was to open there were already
the first of what the officials of the court would later describe
as one of the biggest crowds they had ever seen at a trial,
a whole gang of sash-wearing Métis, their breath hanging
in the morning air, eager to get in and find a seat at the
fourth and last trial of Ontario’s Steve Powley.
The Supreme Court building is an imposing structure. Perhaps
even more so this morning because of the fog. It’s intimidating
appearance is, I assume, exactly what its designers were aiming
for. Architects, in fact first year students of design, learn
that vertical lines and shapes tend to humble a viewer as
well as impose a sense of dignity. Both inside and out, the
Supreme Court building has lots of vertical elements. The
seven, two-story-high windows on the front of the building
open into a three-story-high foyer. Access to the courtroom
is gained by ascending a sweeping circular staircase. The
interior of the courtroom itself is paneled in dark wood,
and guess what the shapes of the panels are? And the windows?
Why vertical of course.
All visitors to the building are subject to a thorough airport-type
search conducted by commissionaires and overseen by at least
two absolutely huge Mounties.
The Supreme Court conducts itself according to a strict
timetable. Doors are opened within moments of their scheduled
time. Lawyers and court clerks must be in their places ready
to go at their scheduled times, not only that, but all of
the participants (except the justices) are strictly limited
in the time they are allowed to speak.
The case was to begin at nine thirty. Well before that time
the visitors’ space was totally filled and those who
could not be seated in the court room proper were accommodated
in an over flow room. The action was brought to them through
the use of closed circuit TV. At precisely nine thirty the
doors behind the justices’ podium were opened, the clerk
indicated that we were to rise, and in what to me at least,
was a stately silence, the nine justices filed in and took
their seats. At precisely nine thirty the final trial of Steve
Powley began.
For the fourth time in nine years the first argument to be
heard was that of the Attorney General of Ontario. For those
of us who had attended the earlier trials it was Déja
vue. The opening arguments could have been played back from
earlier tapes were such a thing allowed. Was Sault Ste. Marie
ever a real Métis community? If so, what practices
of that historic community are protected in law? Does Steve
Powley have legitimate roots in that community? Is Steve Powley
really a Métis?
At least one new component was added to the mix this time.
The matter of Canadian sovereignty and when our country became
sovereign was introduced. What rights did the Métis
have before sovereignty and were those rights frozen at the
moment Canada became sovereign?
Another new and absorbing fact emerged. No country in the
world today has special rights for those of their population
of mixed blood. There’s no question about it, the Canadian
Métis really are unique!
This trial also allowed us to see that Ontario is not the
only province who does not wish its Métis population
to have special hunting rights. Unlike the three Ontario trials,
several other provinces appeared in this trial as interveners,
including Newfoundland, for heavens sakes!
Even Canada intervened. Fortunately, most of these interventions
were dealt with quickly. Canada brought up something about
Métis rights prior to 1982, the year in which the Métis
were included in section 35 of the constitution. British Columbia
worried about section 35 not defining what a Métis
is; Ontario tried to engage the court in a discussion of Australian
practice, and went on to tell us that Métis lived in
forts and Hudson Bay post buildings; and Alberta got very
involved in the differences between Aboriginals with treaty
rights and those without. There is no question that after
the Powley case has been decided, many of these issues are
going to reappear in a variety of levels of importance, but
it was evident that one of the skills of Chief Justice, the
Right Honourable Beverly McLachlin, was to maintain the focus
of all on the issue, and she did.
For the first few minutes one could not help being impressed
by the formality of the whole process. Up to this point the
nine justices had seemed totally remote, almost uninvolved.
Then, suddenly, this impression had to be modified. The Honourable
Mr. Justice John Major interrupted the progress of Ontario’s
lawyer, and challenged a certain point she had made. The mood
changed. The justices were involved and, as the trial progressed
through the rest of the day, it became apparent that these
men and women were very involved. These nine people had, amongst
them, both enormous responsibilities and enormous knowledge.
Truly they were a formidable, well read, attentive, yet very
human group, and as the day moved on some of these qualities
became visible.
Finally it’s our turn. Métis lawyer, Jean Teillet,
takes the floor. As usual the voice is clear and steady and
her arguments concise and to the point.
One of the games, it seems that all of us, both visitors and
lawyers, play during the proceedings is to try and analyze
the reactions of the nine justices who are, after all, sitting
in judgement. When one of the interveners begins to go off
the rails we eagerly scan the justices for signs of impatience
(we are not infrequently rewarded) and when our side has the
floor we seize on every sign that this justice or that one
has a receptive or sympathetic look. It is worth noting that
the average length of time it takes for the Supreme Court
to render a judgement is seven months. In other words the
decision regarding the Powley case, should it be an average
case, will not be known until next October. So it is easy
to see why we listen hard to every comment or question posed
by one of the justices or try and study even their postures
while the arguments are being made in an effort to second
guess the final outcome.
Jean made a number of points with great conviction and vigour.
A pitfall that had reared its unpleasant head at the three
provincial trials preceding this one concerned the matter
of definition. Who is a Métis? It seems to be a belief
of the courts that they are the right and proper bodies equipped
to deal with deciding on a definition of “Métis.”
She urged that it was not the function of this court to decide
what that definition should be. She argued that only the Métis
can define who the Métis are. Another trap that lies
in wait for the unwary Métis is that of looking to
First Nations’ rights to define and decide Métis
rights. Jean pointed out to the court that the Métis
are not ‘Indians.’ “Note,” she said,
as her eyes swept the courtroom, “there are no First
Nations’ interveners in this room! Métis rights
must rise and fall on Métis cultural needs - not Indian!”
And finally, the matter of blood quantum came up again. Are
you a Métis if you can claim you have this much Indian
blood, or do you have to have that much? Again Jean had to
point out that this had never been a part of the Métis
definition of themselves, and never would be.
Clem Chartier, President of the Métis Nation - Saskatchewan,
appeared for the MNC and reinforced the arguments regarding
definition saying that Métis definition rests with
the Métis themselves. The Métis National Council’s
definition of citizenship within the Métis Nation being,
“‘Métis’ means a person who self-identifies
as Métis, is distinct from other Aboriginal peoples,
is of ‘historic Métis Nation ancestry’,
and is accepted by the Métis Nation.”
Suddenly, it seemed, it was all over. While we all stood in
silence once more the centre doors were opened behind the
nine justices and they made their exit. In the great foyer
the reporters and their cameras were waiting.
And the fog? Gone. |
