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

  • May 30, 2022
  • Caroline Bélanger-Hilaire


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. 

Purposive Interpretation

When called upon to make s. 35 constitutional analysis in a case where Métis communities located outside of Canada are claiming rights, courts will be tasked with interpreting the expressions “aboriginal peoples of Canada” by encompassing the unique Métis perspective. Further, this point was acknowledged at the SCC in Desautel when the interveners, the Métis National Council and the Manitoba Metis Federation Inc., submitted that the courts must interpret s. 35 by “recognizing the Métis and enhancing their survival as distinctive communities.” 

Although courts have never interpreted “Métis peoples of Canada,” it did define “aboriginal peoples of Canada” in Desautel. As a starting point, I will briefly outline how the SCC came to their definition in Desautel. After that, I will elaborate on how future courts could adapt the Desautel logic for cases where the s. 35 claimant is a Métis located outside of Canada.

a.    The Desautel Logic

While the text in s. 35(2) defines Aboriginal peoples to include the Indian, Inuit and Métis peoples of Canada, it does not provide insight on whether they must be citizens or residents of Canada.  

In defining “aboriginal people of Canada,” the court provided a distinction between (1) “Who are the aboriginal peoples of Canada?” and (2) “How aboriginal peoples of Canada can claim a right.”  

The first question is a threshold question to whether the aboriginal community is, in fact, an aboriginal people of Canada. In contrast, the second question determines whether the aboriginal claimant can claim a right pursuant to s. 35 of Canada’s Constitution. 

When attempting to answer the first question, the SCC clarified that “the threshold question does not arise in every case. In most cases, there will be no doubt that the claimant belongs to an Aboriginal people of Canada, so there is no need to address the threshold question. The threshold question is likely to arise only where there is some ground for doubt, such as where the group is located outside of Canada.”  Specifically, to answer who are the “aboriginal peoples of Canada,” the SCC held that it is clear that “it must mean the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact. As a result, groups whose members are neither citizens nor residents of Canada can be Aboriginal peoples of Canada.” 

In answering the second question, it is only after the threshold question is met that an application of the Van Der Peet test  is used to determine whether the aboriginal claimant has a constitutional right. The SCC in Desautel held that the Van der Peet test should also be used for aboriginal groups outside of Canada.” 

b.    An Adapted Desautel Logic for the Métis

The Desautel court provided a clear two-step framework for resolving issues where aboriginal groups located outside of Canada could claim s. 35 rights; however, it explicitly left out its opinion on making a ruling that would affect the Métis. 

Future courts should use similar logic as that in Desautel, where the analysis entails a threshold question, when necessary, followed by an application of a test that determines whether the claimant has a s. 35 constitutional right. 

Firstly, in attempting to answer the threshold question for Métis claimants, the courts should tailor the requirement of “aboriginal societies that occupied Canadian territory at the time of European contact.”  This adaptation should take into “account the unique post-contact emergence of Métis communities, and post-contact foundation of their aboriginal rights.”  I suggest using the “post-contact but pre-control test”  where the focus is on “the period after a particular Métis community arose and before it came under the effective control of European laws and customs. This pre-control test enables us to identify those practices, customs and traditions that predate the imposition of European laws and customs on the Métis.” 

Secondly, once the threshold question is met, the court should use the Powley test to determine whether the Métis claimant has a constitutional right. In Powley, the SCC confirmed that the test for Métis rights “uphold[s] the basic elements of the Van der Peet test […] [h]owever, [it] modif[ied] certain elements of the pre-contact test to reflect the distinctive history and post-contact ethnogenesis of the Métis, and the resulting differences between Indian claims and Métis claims.”  In Powley, the SCC outlined the purpose of s. 35 relating to Métis: 

The purpose of s. 35 as it relates to the Métis is therefore different from that which relates to the Indians or the Inuit. The constitutionally significant feature of the Métis is their special status as peoples that emerged between first contact and the effective imposition of European control.  The inclusion of the Métis in s. 35 represents Canada’s commitment to recognize and value the distinctive Métis cultures, which grew up in areas not yet open to colonization, and which the framers of the Constitution Act, 1982 recognized can only survive if the Métis are protected along with other aboriginal communities. 

In addition, the SCC confirmed that there is no requirement that a “member of a contemporary Aboriginal community [be] currently located in the geographic area where the right was historically exercised.”  If a court were to impose a requirement that the claimant must exercise a right in the geographic area where the right was historically exercised, it “would fail to take into account the Aboriginal perspective, the realities of colonization, and the goal of reconciliation.”  In considering the Métis’ unique circumstances, the appropriate test is the Powley test even for a Métis claimant who is located outside Canadian borders.

A purposive interpretation includes “a generous, liberal interpretation of the words in the constitutional provision,”  which would naturally include the Métis people located in the United States. To contextualize a common Métis historical experience, for example, in the late 1800s, some Métis moved to the United States to find a better life.  During that time, the Europeans increasingly controlled Métis’ homeland, which forced some Métis to travel across the border into the northern US plains to find better employment opportunities. These Métis communities should not be penalized out of Canadian constitutional protection for being forced to relocate.


The decision in Desautel answers positively to the question of whether groups whose members are neither Canadian citizens nor Canadian residents can meet the definition of “aboriginal peoples of Canada” pursuant to s. 35 of Canada’s Constitution. The SCC’s decision is indeed a victory for the descendants of the British Columbia’s Sinixt people who presently reside across the border.  However, it remains to be seen whether, once again,  Canada conveniently forgets to include the Métis when interpreting its Constitution. 

Canada’s constitution remains the only one in the world that recognizes a mixed-race culture, the Métis, as a rights-bearing aboriginal people. A constitutional interpretation “that excludes Aboriginal peoples who were forced to move out of Canada would risk perpetuating the historical injustice […] at the hands of colonizers.”  

In the future, when courts are called upon to answer the question “Who are the Métis,” a question purely based on identity, the answer should not be a colonially imposed definition. This approach “often takes on a role of power, with one group imposing an identity on the other.”  Therefore, it is essential that the non-aboriginal members of our community respect the Métis’ right to self-determination as it is recognized and affirmed in the United Nations Declaration on the Rights of Indigenous Peoples and the Canadian Constitution Act, 1982. Only when the Métis are able to self-determine who they are will they have claimed a sense of ownership over their own identities.

I conclude by urgently calling on our courts to extend our constitutional borders to include the Métis located in the US who share so much of their origins, culture, and language with the Métis in Canada. 

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.