Francis v The Queen,

• Judge: Rand J.,Kellock J.
• Court: Supreme Court (Canada)
• Date: 11 June 1956

Canada, Supreme Court.

(Kerwin C.J.C.; Taschereau, Rand, Kellock, Cartwright, Fauteux and Abbott JJ.)

Francis

and

The Queen.

International Law — Relation to Municipal Law — Effect of Treaties which have not been made part of Municipal Law — Jay Treaty, 1794 — The Law of Canada.

Individual in International Law — Position of — Rights under International Agreements — Necessity for Municipal Legislation — The Law of Canada.

Treaties — Termination of — By Operation of Law — Outbreak of War — Treaty of Amity, Commerce and Navigation — The Law of Canada.

War — Effect on Treaties — Treaty of Amity, Commerce and Navigation — The Law of Canada.

Treaties — Operation of — Necessity for Municipal Legislation — The Law of Canada — Effect of War on Operation of Treaty.

The Facts.—This was an appeal against a decision of Cameron J., in the Exchequer Court,1 dismissing the petition of right of the appellant, an Indian resident at all material times on the St. Regis Indian Reserve in Quebec. This Reserve is part of a larger settlement of the St. Regis Tribe extending into the United States of America and is bounded on the south by the international boundary between Canada and the United States. Between 1948 and 1951 the appellant, Francis, purchased an electric washing machine, an oil burner and an electric refrigerator in the United States; two of these were brought over or from the international boundary to his home in the reserve by Francis, and the other was delivered by the seller. They were not reported at the customs office for the district, and some time later they were seized and held until the duty

amounting to $123.66 was paid. The petition of right was thereupon brought for the return of these monies.

The first ground of appeal was based on Article III of the Treaty of Amity, Commerce and Navigation between His Britannic Majesty and the United States of America, signed on November 19, 1794 (hereinafter referred to as the Jay Treaty),1 taken together with Article IX of the Treaty of Ghent, 1814,2 between the same parties. Article III of the Jay Treaty provides:

“No duty on entry shall ever be levied by either party on peltries brought by land or inland navigation into the said territories respectively, nor shall the Indians passing or repassing with their own proper goods and effects of whatever nature, pay for the same any impost or duty whatever. But goods in bales, or other large packages, unusual among Indians, shall not be considered as goods belonging bona fide to Indians.”

Article IX of the Treaty of Ghent, as far as it concerns Great Britain, reads:

“And His Britannic Majesty engages, on his part, to put an end immediately after the ratification of the present treaty to hostilities with all the tribes or nations of Indians with whom he may be at war at the time of such ratification, and forthwith to restore to such tribes or nations respectively all the possessions, rights and privileges which they may have enjoyed or been entitled to in one thousand eight hundred and eleven, previous to such hostilities: Provided always that such tribes or nations shall agree to desist from all hostilities against his Britannic Majesty, and his subjects, upon the ratification of the present treaty being notified to such tribes or nations, and shall so desist accordingly.”

The contention based on these articles was as follows: Article III effected the enactment of substantive law not requiring statutory confirmation as being a provision in a treaty of peace, the making of which was in the exercise of the prerogative, including, here, a legislative function; on the true interpretation of the Treaty the Article was intended to be perpetual and was not affected by the war of 1812; in any event it was restored by Article IX of the Treaty of Ghent.

A second ground of appeal was that the appellant was exempted from liability for the duties by s. 102 of the Indian Act (R.S.C. 1927, c. 98) and by s. 86 (1) of R.S.C. 1952, c. 149. These read:

“102. No Indian or non-treaty Indian shall be liable to be taxed for any real or personal property, unless he holds, in his individual right, real estate under a lease or in fee simple, or personal property outside of the reserve, in which case he shall be liable to be taxed for such real or personal property at the same rate as other persons in the locality in which it is situate.”

“86 (1). Notwithstanding any other Act of the Parliament of Canada or any Act of the legislature of a province, but subject to subsection (2) and to section 82, the following property is exempt from taxation, namely,

• (a) the interest of an Indian or a band in reserve or surrendered lands, and

• (b) the personal property of an Indian or band situated on a reserve,

and no Indian or band is subject to taxation in respect of the ownership, occupation, possession or use of any property mentioned in paragraph (a) or (b) or is otherwise subject to taxation in respect of any such property.”

Held: that the appeal must be dismissed. The Jay Treaty required implementing legislation to make it effective in Canadian Courts, and in the absence of such legislation Article III of the Jay Treaty did not confer any exemption from customs duties.

Kerwin C.J.C. (with whom Taschereau and Fauteux JJ. concurred) stated the facts, and continued: “The Jay Treaty was not a treaty of peace and it is clear that in Canada such rights and privileges as are here advanced of subjects of a contracting party to a treaty are enforceable by the Courts only where the treaty has been implemented or sanctioned by legislation. This is an adaptation of the language of Lamont J., speaking for himself and Cannon J. in Re Arrow River and Tributaries Slide and Boom...