Straddling the Border in R v Desautel: Is there Room in Canada’s Constitution for the Métis Communities Living in the United States?

Introduction

The Supreme Court of Canada ("SCC") rendered its landmark decision in R v. Desautel ("Desautel")  opening the door for Aboriginal, non-Canadian citizens, to claim rights pursuant to s. 35(1) of the Constitution Act, 1982. 

For the first time, the Supreme Court judges in Desautel were tasked with defining the expression “aboriginal peoples of Canada” in s. 35(1) of Canada’s Constitution.  The SCC held that s. 35(1) must be interpreted in a purposive way.  In applying a purposive interpretation to the expression “aboriginal peoples of Canada,” it must include “the modern-day successors of Aboriginal societies that occupied what is now Canada at the time of European contact.”  

The victorious outcome for Mr. Desautel, a member of the Lakes Tribe of the Colville Confederated Tribes of Washington,  is also an optimistic starting point for other aboriginal members of Canada, who often find themselves on both sides of the US-Canadian border, to claim Canadian constitutional rights.

As requested by the Métis Nation of British Columbia, an intervener in this case, the Supreme Court avoided developing principles that could affect Métis s. 35 rights.  Hence, the Supreme Court judges determined that it would leave it for another day to discuss how s. 35 rights should be interpreted for cases where there is doubt about whether a community belongs to the Métis of Canada.  

In this short piece, I would like to explore how Métis communities in the United States (“US”) could claim Canadian constitutional rights by making references to the fresh legal perspective advanced in Desautel. In a potential future case where Métis in the US might claim s. 35 Canadian constitutional rights, I advance the position that s. 35 should be interpreted in a purposive way that includes Métis people who were forced to move elsewhere  or on whom international boundaries were imposed.