[The critical Section 1 of Canada's Charter of Rights is mentioned below: Canada says in a lawsuit submission for our January 28 FATCA trial in Federal Court, that if compliance with the U.S. FATCA law is "found to limit any Charter right, any such limitation can be justified under s.1 of the Charter" [and that] In order to be justified the Impugned Provisions must have a pressing and substantial objective” …”.
— Canada argues that avoidance of economic “catastrophic effects” that will be inflicted on Canada if she does not comply with the U.S. FATCA demand is a “pressing and substantial objective”.
— But Plaintiffs point out in their submission that: “Kevin Shoom, Canada’s witness who participated in the negotiations with the United States that ultimately resulted in the IGA, agreed [in cross examination] that any consideration of what would transpire if any part of the Impugned Provisions were declared of no force or effect would be highly speculative. He agreed that it would depend on “a whole lot of considerations,” that Canada would negotiate with the United States to achieve the best possible outcome, and that “we don’t know how the US would respond.””.
More generally, Plaintiffs say: “Canada effectively maintains that it enacted the Impugned Provisions under duress from a foreign state. The Court should be very slow to accept this as a justification for infringements of the Charter. Canada is expected to defend the constitutional rights and freedoms of its citizens and not bargain them away or capitulate to threats from a foreign bully state.” and, what “if another state’s laws required a person residing in Canada to report to that state obviously private, personal details about their lives – such as their religious practices…”?
Canada is a Westminster Parliamentary democracy. Historically it has had a constitution (British North America Act) which defined how Canada was to be governed. In simple terms: the Federal Government has the jurisdiction to legislate in some areas (example criminal law). The Provincial Governments have the right to legislate in other areas (property and civil rights). These laws are made by democratically elected legislatures. Prior to the Canadian Charter of Rights and Freedoms (April 17, 1982), the only limits on the legislative bodies were jurisdictional. Any law could be enacted. It was just a question of whether it was the Federal Government or the Provincial Government that could enact the law.