REGINA v. SWIMMER

(1970), 17 D.L.R. (3d) 476 (also reported : [1971] 1 W.W.R. 756, 3 C.C.C. (2d) 92)

Saskatchewan Court of Appeal, Culliton C.J.S., Woods, Brownridge, Maguire and Hall JJ.A., 4 December 1970

Accordingly, the Government of Canada is not obligated to pay taxes and premiums under the Saskatchewan Hospitalization Act, R.S.S. 1965, c. 253, and the Saskatchewan Medical Care Insurance Act, R.S.S. 1965, c. 255, for all Indians in Saskatchewan. Pursuant to Regulations under s. 72(1) of the Indian Act, R.S.C. 1952, c. 149, the Government of Canada pays the hospitalization tax and provides medical care for an Indian who is resident in the Province and resides on a reserve, or has been residing outside a reserve for less than 12 months, an arrange- ment that is recognized by Regulations under the Saskatchewan Medical Care Insurance Act. These provincial Regulations do not offend the "medicine chest" clause and are, therefore, intra vires the Province.

[R. v. Johnston (1966), 56 D.L.R. (2d) 749, 56 W.W.R. 565, 49 C.R. 203, folld]

APPEAL by way of stated case from a judgment acquitting respondent of a charge of failing to pay 1966 joint taxes in respect of the Saskatchewan Hospitalization Act (Sask.) and the Saskatchewan Medical Care Insurance Act (Sask.).

Serge Kujawa, Q.C., for the Crown, appellant.

J. M. Koskie, for respondent.

The judgment of the Court was delivered by

CULLITON, C.J.S.:--This is an appeal by the Honourable the Attorney-General for Saskatchewan by way of stated case.

The respondent was charged in an information that he, on May 13, 1969, being a resident of Saskatchewan, did unlaw- fully fail to pay the 1966 joint tax, consisting of the following:

The Saskatchewan Hospitalization Act Tax	$48.00
The Saskatchewan Medical Care Insurance Act Premium	24.00
	---------
	$72.00

After a trial before Policha, J.M.C., of the Magistrates' Court, the respondent was found not guilty. The case stated by the learned Judge of the Magistrates' Court may be sum- marized as follows:

The respondent Andrew Swimmer is a resident of the Province of Saskatchewan and is an Indian within the mean- ing of the Indian Act, R.S.C. 1952, c. 149. He lived on a reserve from his birth until 1958, and since that time has resided outside a reserve. It is admitted that he did not pay the tax.

Section 72(1) of the Indian Act provides that the Governor in Council may make Regulations to provide medical treat- ment and health services for Indians. The Government of Canada pays the hospitalization tax and provides medical care for an Indian who is a resident of the Province of Saskatchewan and resides on a reserve, or who has been re-

siding outside a reserve for less then 12 months. This arrange- ment is recognized by s. 21 of the Regulations, Sask. Reg. 509/64, O.C. 1479/64, Sask. Gaz., 1964, vol. 60, issued under the Saskatchewan Hospitalization Act, R.S.S. 1965, c. 253, which reads:

21. Where the tax is to be paid by the Government of Canada in accordance with an arrangement to that effect between that Govern- ment and the Government of Saskatchewan on behalf of a resident who is an Indian within the meaning of the Indian Act (Canada) and is residing on an Indian reserve or has been residing outside an Indian reserve for less than twelve months, the other provisions of these regulations shall apply to such resident and to the tax payments made on his behalf.

This arrangement is also recognized by s. 21(1) (v) of the Regulations, Sask. Reg. 505/64, O.C. 1418/64, Sask. Gaz., 1964, vol. 60, issued under the Saskatchewan Medical Care Insur- ance Act, R.S.S. 1965, c. 255, which is as follows:

21(1) Subject to section 22, the following classes of persons shall be exempt from the premium levy:

(v) every person who at the beginning of the premium year is an Indian within the meaning of the Indian Act (Canada) and is residing on an Indian reserve or has been residing outside an Indian reserve for less than twelve months;

The learned trial Judge found that the respondent was entitled to the benefit accorded to Indians under Treaty No. 6, made between Her Majesty the Queen and the Plain and Wood Cree Indians and other tribes of Indians at Fort Carlton, Fort Pitt and Battle River with Adhesions, and con- cluded in 1876 [Indian Treaties and Surrenders (1891), vol. 2, No. 157A, p. 35]. This Treaty includes the 'medicine chest" clause, which reads :

That a medicine chest shall be kept at the house of each Indian Agent for the use and benefit of the Indians at the direction of such agent.

The learned trial Judge held that this clause should be interpreted to mean that all Indians to whom the said Treaty applies, are entitled to receive all medical services, including medicine, drugs, medical supplies and hospital care free of charge. Because of this, the learned trial Judge said the respondent was exempt from payment of the taxes imposed by the Saskatchewan Hospitalization Act, and the Saskatche- wan Medical Care Insurance Act, and that he came within the following sections of the Regulations :

Under the Saskatchewan Hospitalization Act :

23 (1) Subject to section 24, the following classes of persons shall be exempt from taxation :

(iv) every other person who at the beginning of the tax year is, without payment being made by him of a fee, premium or other sum of money, entitled to have payment made at the entire expense of the Government of Canada in respect of any hospital services he receives.

Under the Saskatchewan Medical Care Insurance Act :

21 (1) Subject to section 22, the following classes of persons shall be exempt from the premium levy :

(vi) every other person who at the beginning of the premium year is, without payment being made by him of a fee, premium or other sum of money, entitled to have payment made at the entire expense of the Government of Canada in respect of any medical services he receives.

He further held that, because of the interpretation he placed upon the "medicine chest" clause, only the Parliament of Canada could legislate in respect of Indians and consequently s. 21 of the Saskatchewan Hospitalization Act Regulations, and s. 21 (1) (v) of the Saskatchewan Medical Care Insurance Act Regulations, were ultra vires.

The questions posed in the said case are as follows :

1. Did I err in law in holding that the clause in Treaty No. 6, which reads as follows :

"That a medicine chest shall be kept at the house of each Indian Agent for the use and benefit of the Indians at the direc- tion of such Agent"

should be interpreted to mean that the Government of Canada should pay the joint tax payable under The Saskatchewan Hospit- alization Act and the regulations thereto, and The Saskatchewan Medical Care Insurance Act and the regulations thereto, on behalf of the defendant Andrew Swimmer ?

2. Did I Err in law in holding that the clause in Treaty No. 6 which reads as follows :

"That a medicine chest shall be kept at the house of each Indian Agent for the use and benefit of the Indians at the direction of such Agent"

should be interpreted to mean that the Indians are entitled to receive all medical services, including medicines, drugs, medical supplies and hospital care, free of charge ?

3. Did I err in law in holding that section 21 of the regulations made pursuant to The Saskatchewan Hospitalization Act, O/c 1479/64, Saskatchewan Gazette, September 18, 1964, is ultra vires the Province of Saskatchewan ?

4. Did I err in law in holding that section 21(1) (v) of the regulations made pursuant to The Saskatchewan Medical Care In- surance Act, o/c 1418/64, Saskatchewan Gazette, September 18, 1964, is ultra vires the Province of Saskatchewan ?

5. Did I err in law in holding that the defendant Andrew Swimmer, being an Indian within the meaning of the Indian Act, R.S.C. 1952, Cap. 149, and entitled to the benefits of Treaty No. 6 is entitled

to have payment made at the entire expense of the Government of Canada in respect to any medical services he receives as set forth in section 23(1) paragraph (vi) of the regulations made pursuant to The Saskatchewan Medical Care Insurance Act, O/C 1418/64, Saskatchewan Gazette, September 18, 1964 ?

6. Did I err in law in holding that the defendant Andrew Swimmer, being an Indian within the meaning of the Indian Act, R.S.C. 1952, Cap. 149, and entitled to the benefits of Treaty No. 6, is entitled to have payment made at the entire expense of the Government of Canada in respect of any hospital services he receives as set forth in section 21(1) paragraph (iv) of the regulations made pursuant to The Saskatchewan Hospitalization Act, O/C 1479/64, Saskatchewan Gazette, September 18, 1964 ?

The interpretation and application to be given to the "medi- cine chest" clause in Treaty No. 6, was considered by this Court in R. v. Johnston (1966), 56 D.L.R. (2d) 749, 49 C.R. 203, 56 W.W.R. 565. Speaking for the Court, at p. 753, I said :

Again, on the plain reading of the "medicine chest" clause, it means no more than the words clearly convey : an undertaking by the Crown to keep at the house of the Indian agent a medicine chest for the use and benefit of the Indians at the direction of the agent. (The italics are mine.) The clause itself does not give to the Indian an unrestricted right to the use and benefits of the "medicine chest" but such rights as are given are subject to the direction of the Indian agent. Such limitation would indicate that the obligation was to have physically on the reservations, for the use and benefit of the Indians, a supply of medicine under the supervision of the agent. I can find nothing historically, or in any dictionary definition, or in any legal pronouncement, that would justify the conclusion that the Indians, in seeking and accepting the Crown's obligation to provide a "medicine chest" had in con- templation provision of all medical services, including hospital care.

I have no reason to depart from this opinion. There was, in my view, nothing in the present case that justified the re- jection of this view by the learned Judge of the Magistrates' Court.

It was because of the interpretation the learned Judge of the Magistrates' Court gave to the "medicine chest" clause that he held s. 21 of the Regulations under the Saskatchewan Hospitalization Act, and s. 21 (1) (v) of the Regulations under the Saskatchewan Medical Care Insurance Act, to be ultra vires.

Section 87 of the Indian Act reads :

87. Subject to the terms of any treaty and any other Act of the Parliament of Canada, all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province, except to the extent that such

laws are inconsistent with this Act or any order, rule, regulation or by-law made thereunder, and except to the extent that such laws make provision for any matter for which provision is made by or under this Act.

As I have already stated, the terms of Treaty No. 6 do not impose upon the Government of Canada the obligation of providing, without cost, medical and hospital services to all Indians. Moreover, I know of no Act of Parliament that purports to do so. Under these circumstances, the respondent was subject to the provisions of the Saskatchewan Hospitaliza- tion Act and the Saskatchewan Medical Care Insurance Act, being laws of general application, and liable for the tax there- under.

In view of the conclusion I have reached, I must answer all questions in the stated case, "Yes". The verdict of acquittal will be set aside, and there shall be entered a verdict of guilty. The matter will be referred back to the learned trial Judge for the imposition of the appropriate penalty.

Appeal allowed.