R. v. Desautel: A case of missing identity

Updated: Mar 29

Opinion by Anthony Valenti

This opinion piece is part of Kroeger Policy Review's first issue on Race, Religion, and Culture. The full issue is available here.


Background

A case out of the British Colombia Court of Appeals is being elevated, yet again, to the highest court in Canada: The Supreme Court. (1) (2)


Richard Desautel is a proud member of the Sinixt First Nation’s tribe in the State of Washington. One day in 2010, he made the decision to hunt by means that which was meant to be protected under section 35 of the Constitution Act, 1982. Section 35(1) reads, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed”. (3)


This led to a heavy debate on Indigenous nations’ rights in Canada. It presented the public with a notable evidence of the injustice made towards that specific population. The first paragraph of the original case read the following:


On October 1st, 2010, the respondent Richard Desautel shot and killed a cow elk near Castlegar, British Colombia. Mr. Desautel reported the kill to wildlife conservation officers, who a few days later charged him with hunting without a licence and hunting big game while not being a resident of British Colombia, contrary to ss. 11(1) and 47(a) of the Wildlife Act, R.S.B.C. 1996, c. 488.” (4)


Thus, Desautel was apprehended due to restrictions under the Wildlife Act.


Specifically, the two following charges: hunting without a licence; and hunting ‘big game’ without being a resident of the province. Charges which – normally – would not apply to an Indigenous person.


Legal Specifications and Interpretation

The Attorney General, Glen Thompson, argued that the recognition of an aboriginal tribe from outside the borders of Canada, defied s. 35.1 of the Act because “it is not reasonable to find that aboriginal peoples who are neither resident in nor citizens of Canada should participate in such a conference.” (5)


He then was of the opinion that without the possession of citizenship, Indigenous people did not share the same protections as those who retained Canadian citizenship.


The British Colombia Court of Appeals dismissed the appeal – siding with Mr. Desautel – however it is the Attorney General of British Colmbia who has chosen to appeal the decision. Which brings the case before the Supreme Court.


In the current political climate with the current spotlight on Indigenous Rights as seen with the “Justice for Joyce” rallies in Montreal, as presented in an article by The Globe and Mail, on October 3rd, 2020.


“Crowds of protesters marched through downtown Montreal on Saturday, calling for justice for Joyce Echaquan, an Indigenous woman who was subjected to insults as she lay dying in hospital.” (6)


This was an injustice made public following the release of video footage showing nurses at a Quebec hospital speaking profanities and race-based insults after giving her what turned into a deadly amount of morphine.


Not since the negation of the Treaty of Niagara, 1763 by colonial-Canadian have Indigenous Rights been such a “hot topic” issue. As they should.


In the case of Desautel, the issue at hand is that a First Nations group was considered “extinct” following their move to their traditional lands in the United States.


Should Indigenous Rights be Inalienable by Territory?

As the Attorney General of British Colombia noted previously that it was of his belief that s. 38(1) of the Constitution Act, 1982 only applied to Canadian citizens. However, the act talks of recognition.


There is a sizeable piece of land near the BC-Alberta border, nearly bordering on the town of Cranbrook, BC and reaches across the Canada-US border.


So, What Does That Mean?

In this ongoing case pertaining to constitutional law, Richard Desautel is fighting a colonial system which seemingly neglected his ancestral tribe and by relation, his culture.


One conclusion that needs to be made, is that regardless of nationality, ethnic origin and culture do not fall solely between state lines.


All those who enjoy reading about and speaking out against injustice should read over the case and inform themselves on the legislative affairs and constitutional improprieties at play.


Not only because it would open up the reader’s understanding of domestic-Indigenous affairs, but that when it comes to protecting rights and freedom, it requires a team-effort.


The case of R. v. Desautel is now waiting to be heard by the Supreme Court of Canada. The Notice of Appeal gives the general overview of the facts as well as the appellant’s reason behind the appeal.


However, the Supreme Court has yet to make a formal adjudication of the case.


  1. COLETTA, Amanda. 2020. “Canada’s Supreme Court to consider whether Native Americans in U.S. have rights north of the border” The Washington Post. https://www.washingtonpost.com/world/the_americas/canada-first-nations-sinixt-supreme-court/2020/10/06/73841352-033a-11eb-8879-7663b816bfa5_story.html

  2. https://www.scc-csc.ca/WebDocuments-DocumentsWeb/38734/FM010_Appellant_Her-Majesty-the-Queen.pdf

  3. "Constitution Acts, 1867 To 1982". Department of Justice. 2020. https://laws-lois.justice.gc.ca/eng/Const/page-16.html#h-52.

  4. “R. v. Desautel”. The Supreme Court of British Columbia. 2017. https://www.bccourts.ca/jdb-txt/sc/17/23/2017BCSC2389.htm

  5. Ibid. pp. 29.2

  6. REUTERS, Chritinne. "‘Justice For Joyce’ Rally Marches Through Montreal To Honour Indigenous Woman". 2020. The Globe And Mail. https://www.theglobeandmail.com/canada/article-justice-for-joyce-rally-planned-in-montreal-to-honour-indigenous-2/

  7. COLETTA, Amanda. 2020. “Canada’s Supreme Court to consider whether Native Americans in U.S. have rights north of the border” The Washington Post. https://www.washingtonpost.com/world/the_americas/canada-first-nations-sinixt-supreme-court/2020/10/06/73841352-033a-11eb-8879-7663b816bfa5_story.html

Indigenous resources on this topic: