R. v. Johnson (S.G.), (1990) 122 N.S.R.(2d) 280 (ProvCt)

• Judge: MacDougall, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: January 05, 1990
• Jurisdiction: Nova Scotia
• Citations: (1990), 122 N.S.R.(2d) 280 (ProvCt)

R. v. Johnson (S.G.) (1990), 122 N.S.R.(2d) 280 (ProvCt);

    338 A.P.R. 280

MLB headnote and full text

Her Majesty The Queen v. Stanley Gordon Johnson

Indexed As: R. v. Johnson (S.G.)

Nova Scotia Provincial Court

MacDougall, P.C.J.

January 5, 1990.

Summary:

Johnson, a Micmac Indian, was charged with selling tobacco for resale without hav­ing a registration certificate and without making returns as required by the Health Services Tax Act, s. 35.

The Nova Scotia Provincial Court con­victed Johnson and imposed a fine.

Editor's Note: This case is being reported at this time at the request of a subscriber.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - Interpretation - Johnson, a Micmac Indian, was charged with selling tobacco for resale without having a registration certificate and with­out making returns as required by the Health Services Tax Act, s. 35 - He argued that he was exempt from the Act by virtue of the Treaty of 1752, s. 4 - The Nova Scotia Provincial Court held that the Treaty had been terminated, and alterna­tively, s. 4 could not be interpreted such as to exempt Johnson from the registration and filing requirements - Johnson was therefore convicted and fined $100 on each count.

Indians, Inuit and Métis - Topic 4415

Treaties and proclamations - Breach - Effect of - The Nova Scotia Provincial Court held that a treaty may be terminated upon breach of a fundamental term - See paragraph 22.

Indians, Inuit and Métis - Topic 4415

Treaties and proclamations - Breach - Effect of - The Treaty of 1752 was entered into by the British Crown and the Micmac Indian people to establish peace and to recognize Indian hunting and fish­ing rights - The Nova Scotia Provincial Court held that the Treaty of 1752 was repudiated and terminated because (1) there was a war between the Indians and the British after the Treaty was signed, (2) the parties did not comply with the Treaty and the document was reportedly burned, and (3) a new treaty was signed in 1760 which established a new peace and ac­knowledged a significant change in the relations between the parties - See para­graphs 1 to 43.

Indians, Inuit and Métis - Topic 6501

Taxation - General - [See Indians, Inuit and Métis - Topic 4410 ].

Sales and Service Taxes - Topic 718

Collection and enforcement - Offences and penalties - Punishments and sentences - Fines - [See Indians, Inuit and Métis - Topic 4410 ].

Cases Noticed:

R. v. Simon, [1985] 2 S.C.R. 387; 62 N.R. 366; 71 N.S.R.(2d) 15; 171 A.P.R. 15; 23 C.C.C.(3d) 238, refd to. [para. 10].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 17].

Francis v. R. (1956), 3 D.L.R.(2d) 641 (S.C.C.), refd to. [para. 21].

Delgamuukw v. British Columbia (1988), 40 D.L.R.(4th) 685 (B.C.C.A.), refd to. [para. 24].

R. v. Bob and White (1965), 50 D.L.R.(2d) 613 (B.C.C.A.), refd to. [para. 24].

Ontario (Attorney General) v. Bear Island Foundation et al. (1989) 32 O.A.C. 66; 68 O.R.(2d) 394 (C.A.), refd to. [para. 24].

R. v. Augustine and Augustine (1987), 74 N.B.R.(2d) 156; 187 A.P.R. 156; 30 C.C.C.(3d) 542 (N.B.C.A.), refd to. [para. 24].

R. v. Johnson (1966), 56 D.L.R.(2d) 749 (Sask. C.A.), refd to. [para. 47].

Statutes Noticed:

Health Services Tax Act, R.S.N.S. 1967, c. 126, sect. 14(1) [para. 5]; sect. 35 [para. 6].

Health Services Act Regulations (N.S.), Tobacco Product Regulation, sect. 3(1) [para. 4].

Hospital Tax Act - see Health Services Tax Act, R.S.N.S. 1967, c. 126.

Indian Act, R.S.C. 1985, c. I-5, sect. 88 [para. 8].

Jay's Treaty of 1794, generally [para. 21].

Proclamation of 1756, generally [para. 35].

Proclamation of 1762 (Balcher Proclama­tion), generally [para. 41].

Tobacco Product Regulation - see Health Services Act Regulations (N.S.), Tobacco Product Regulation.

Treaty of 1752, sect. 4 [para. 10 et seq.].

Treaty of 1760, generally [para. 29 et seq.].

Counsel:

Robert C. Hagell, for the prosecution;

Robert Carruthers, for the defence.

This matter was heard in Antigonish, Nova Scotia, before MacDougall, P.C.J., of the Nova Scotia Provincial Court, who delivered the following judgment on January 5, 1990.