Sales Tax Case Against Indians Hinges on Quebec-Federal Powers (1944) | Surname: Williams
Sales Tax Case Against Indians Hinges on Quebec-Federal Powers
Should Indians, wards of the Dominion Government and not subject to taxation except on whatever property they own outside their reservations, be obliged to obtain the $1 licence required of retailers by the provincial statute which imposes a tax on consumers of tobacco, and the registration certificate prescribed in the Quebec Retail Tax Act? Judge C.E. Guerin was asked this question yesterday afternoon and postponed his answer to February 10, suggesting that opposing counsel supplement their oral arguments with written factums.
The case of Peter Williams, a Caughnawaga Indian charged with violations of these two provincial enactments, was heard yesterday, with consent being entered that the same evidence would serve for the prosecution of similar charges against 15 other Indians. Evidence against Williams, offered by the prosecution, was that two Quebec Revenue Department agents had bought tobacco and an article affected by the Retail Sales Tax Act from the accused, who does not possess the required licence and certificate.
The Indian Act specifically grants Indians a tract of land reserved for them, Joseph Helal, K.C. and Royal Werry, K.C. defence counsel, pointed out, adding that anyone with whom an Indian storekeeper deals is presumed by him to be an Indian. If a white man buys anything from an Indian storekeeper, does not tender the amount of tax and does not declare himself as a non-Indian, there can be no offense against the Indian merchant, they argued, because he is entitled to presume that those dealing with him are Indians. The two government agents had not declared themselves non-Indians, defence counsel recalled.
Inasmuch as their land is reserved for Indians alone, any non-Indian on their land would be a trespasser, the defense pleaded, claiming that this permits Indian merchants to assume that clients coming into their stores are Indians and not trespassers.
If entitled to that assumption, an Indian buying from an Indian merchant is not subject to taxation under the Indian Act, a federal enactment, and the Quebec legislature cannot impose on an Indian merchant, as a condition of his trading or dealing with Indians, the issue of a licence or a certificate, only issued on payment of certain monies, the defence submitted.
Maintaining that Caughnawaga stores are stocked with merchandise their owners cannot dispose of solely to their Indian clients, Frank J.T. O’Reilly, revenue department prosecutor, point out that the statute specifies that the vendor must compute and demand tax, the purchaser not being legally obliged to tender it.
Answering the defence contention that the department’s agents should be classified as trespassers and on the reserve for an improper purpose, Mr. O’Reilly referred to the theory which holds that “agents provocateurs” are neither criminals nor accomplices. Accordingly, prosecution counsel held, the agents were not on the reserve for an improper purpose.
Caughnawaga Indians, by having a provincial highway running through their reserve and catering the the public at large in their retail stores, invite the public to deal with them and the agents cannot be accused of improper purpose, Mr. O’Reilly declared.
The tax mentioned in the statutes is not on the merchant but on the consumer, prosecution counsel stated, adding that he would submit authorities to explain the difference between a tax and an impost. The moment an Indian storekeeper sells tobacco he submits himself to provincial laws, the prosecution concluded.
Earlire in the day, Judge Amedee Monet had refused to hear the Williams case because of the strong letter of protest he received form an Indian chief over his interpretation of the National Selective Service Act as it pertains to Indians. Careful study had resulted in his judgment that under a special federal law giving the governor-general-in-council the right to apply any war measure necessary for the safety of the state, Indians are subject to the mobilization laws.
Source: The Montreal Gazette, Feb. 4, 1944
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