R. v. Mason (C.), 2008 NSPC 3

• Judge: Williams, P.C.J.
• Court: Provincial Court of Nova Scotia (Canada)
• Case Date: January 25, 2008
• Jurisdiction: Nova Scotia
• Citations: 2008 NSPC 3;(2008), 263 N.S.R.(2d) 62 (PC)

R. v. Mason (C.) (2008), 263 N.S.R.(2d) 62 (PC);

    843 A.P.R. 62

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. JA.055

Her Majesty the Queen v. Christine Mason

(1499704; 1499705; 1499706; 1499707; 1499708; 1499709; 1499710; 1499711; 1499712; 1499713; 1499714; 1499715; 1499716; 1499717; 1499719; 1499720; 1499721; 1499722; 1499723; 1499724; 1534603; 1534604; 1534605; 1575408; 1575409; 1575410; 1575411; 1575412; 1575413; 1575414; 1575415; 1575416; 1575417; 1575418; 1575419; 1575420; 1575421; 1575422; 1575423; 1664685; 1664686; 1664687; 1664688; 1664689; 1664690; 1664691; 1664692; 1664693; 1664694; 1664695; 1664696; 1664697; 1664698; 1664699; 1664700; 2008 NSPC 3)

Indexed As: R. v. Mason (C.)

Nova Scotia Provincial Court

Williams, P.C.J.

January 25, 2008.

Summary:

The accused, a status Indian, was the owner of a store located on federal Crown land at Wallace Hill in the Halifax Regional Municipality. The land was under the administration of Department of Indian and Northern Affairs for the benefit of the First Nations people in Nova Scotia. The accused was charged with numerous counts of possession and/or sale of unmarked and tax-exempt tobacco products on the Crown land, contrary to the Revenue Act (s. 39) and its Regulations (s. 76).

The Nova Scotia Provincial Court convicted the accused on all counts. The land was not a reserve. The court rejected the defences of due diligence and officially induced error.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - The accused was charged with numerous counts of possession and/or sale of unmarked and tax-exempt tobacco products on the Crown land, contrary to the Revenue Act (s. 39) and its Regulations (s. 76) - Some of the offences arose from the seizure by two compliance officers of certain tax exempt tobacco products from a warehouse owned by AMJ Campbell - The accused argued that the seizures violated the accused's s. 8 Charter right - The Nova Scotia Provincial Court rejected the argument - The accused had no legal interest or any legitimate right to privacy at the warehouse - Furthermore, she had no standing to object at trial to the entry of the exhibits seized from the warehouse of a third party where she was not in a position to refuse entry - See paragraphs 87 and 88.

Indians, Inuit and Métis - Topic 5502

Lands - Reserves or Métis land - What constitutes - The accused, a status Indian, was the owner of a store located on federal Crown land at Wallace Hill in the Halifax Regional Municipality - The land was under the administration of Department of Indian and Northern Affairs for the benefit of the First Nations people in Nova Scotia - The accused was charged with numerous counts of possession and/or sale of unmarked and tax-exempt tobacco products on the Crown land, contrary to the Revenue Act (s. 39) and its Regulations (s. 76) - There were periodic negotiations respecting the land becoming part of a reserve - The accused was encouraged and authorized by the Shubenacadie First Nation Band (Indian Brook Reserve) to open the store - The accused, argued, inter alia, that the land functioned as if it were a reserve in that the Band had spent Federal monies, for such things as housing and social assistance, that only could be spent lawfully on a reserve, on the land for the benefit of the residents - The Nova Scotia Provincial Court held that the land where the accused's store was located was not reserve land as defined in the Indian Act - See paragraphs 45 to 67.

Indians, Inuit and Métis - Topic 6510

Taxation - Exemption - Personalty on reserve - [See Indians, Inuit and Métis - Topic 5502 and Sales and Service Taxes - Topic 3807 ].

Sales and Service Taxes - Topic 3807

Tobacco tax - Liability for - Indians - The accused, a status Indian, was the owner of a store located on federal Crown land at Wallace Hill in the Halifax Regional Municipality - The land was under the administration of Department of Indian and Northern Affairs for the benefit of the First Nations people in Nova Scotia - The accused was charged with numerous counts of possession and/or sale of unmarked and tax-exempt tobacco products on the Crown land, contrary to the Revenue Act (s. 39) and its Regulations (s. 76) - There were periodic negotiations respecting the land becoming part of a reserve - The accused was encouraged and authorized by the Shubenacadie First Nation Band (Indian Brook Reserve) to open the store - The Crown had declined to prosecute the accused in the past - The Nova Scotia Provincial Court convicted the accused - The land where the accused's store was located was not reserve land - The accused had only a retail vendor's permit as opposed to a designated retail vendor's permit which was required to sell tax exempt tobacco on reserves - Therefore, she was required to collect and remit tax owed by consumers - She did not act with due diligence - She could not have reasonably believed that what she was doing was legally permissible - She was wilfully blind and intentionally chose to ignore rather than to comply with the law - The defence of officially induced error also had no merit - The accused neither sought nor did she receive any official advice from any government official that was tailored to her store operation at Wallace Hill.

Sales and Service Taxes - Topic 3842

Tobacco tax - Offences and penalties - Contraband, possession, sales, etc. - [See Sales and Service Taxes - Topic 3807 ].

Trials - Topic 1107

Summary convictions - Defences - Officially induced error of law - [See Sales and Service Taxes - Topic 3807 ].

Trials - Topic 1172

Summary convictions - Strict liability offences - Defence of due diligence or error of fact - [See Sales and Service Taxes - Topic 3807 ].

Cases Noticed:

Ross River Dena Council Band et al. v. Canada et al. (2002), 289 N.R. 233; 168 B.C.A.C. 1; 275 W.A.C. 1 (S.C.C.), refd to. [para. 45].

Jeddore v. Minister of National Revenue (2003), 310 N.R. 305; 231 D.L.R.(4th) 224 (F.C.A.), refd to. [para. 47].

Montana Indian Band v. Canada (2006), 287 F.T.R. 159 (F.C.), refd to. [para. 63].

Union of Nova Scotia Indians et al. v. Nova Scotia (Attorney General) (1998), 170 N.S.R.(2d) 36; 515 A.P.R. 36 (C.A.), refd to. [para. 76].

R. v. Murdock (M.) and Johnson (S.G.) (1996), 154 N.S.R.(2d) 1; 452 A.P.R. 1 (C.A.), refd to. [para. 80].

Union of New Brunswick Indians and Tomah v. New Brunswick (Minister of Finance) et al., [1998] 1 S.C.R. 1161; 227 N.R. 92; 200 N.B.R.(2d) 201; 512 A.P.R. 201, refd to. [para. 81].

R. v. Pugliese (1992), 52 O.A.C. 280 (C.A.), refd to. [para. 88].

R. v. Sault Ste. Marie (City) (1978), 21 N.R. 295; 40 C.C.C.(2d) 353; 1978 CarswellOnt 24 (S.C.C.), refd to. [para. 92].

R. v. Loomis (G.F.) (2006), 243 N.S.R.(2d) 90; 772 A.P.R. 90; 2006 NSPC 14, refd to. [para. 93].

R. v. Catagas (1977), 81 D.L.R.(3d) 396 (Man. C.A.), refd to. [para. 97].

R. v. MacDougall, [1982] 2 S.C.R. 605; 44 N.R. 560; 54 N.S.R.(2d) 562; 112 A.P.R. 562, refd to. [para. 98].

Lévis (City) v. Tétreault, [2006] 1 S.C.R. 420; 346 N.R. 331, refd to. [para. 99].

R. v. Jorgensen (R.) et al. (1995), 189 N.R. 1; 87 O.A.C. 1 (S.C.C.), refd to. [para. 99].

R. v. Shiner (W.) (2007), 264 Nfld. & P.E.I.R. 186; 801 A.P.R. 186 (N.L.C.A.), refd to. [para. 101].

R. v. Johnson (S.G.) (1993), 120 N.S.R.(2d) 414; 332 A.P.R. 414 (C.A.), refd to. [para. 103].

Counsel:

J.E. Clarke, for the Crown;

B.A. Jones, for the defendant.

This action was heard by Williams, P.C.J., of the Nova Scotia Provincial Court, who delivered the following decision on January 25, 2008.