I found an interesting guide to the Charter of Rights and Freedoms on the Canadian Bar Association’s website with an interesting commentary that I always suspected to be true but have never seen in black and white.
Supreme Court of Canada’s approach to equality Section 15 does not require everyone to be treated the same way regardless of different circumstances. Showing that the government or the law is treating you differently, or showing that a law that appears to treat people in the same way affects members of a particular group differently, is just one step in showing a violation of section 15 equality rights.
You also need to show that section 15 applies to the different treatment you received. Section 15 prohibits discrimination because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It also prohibits discrimination on “analogous” (comparable) grounds. The Courts have said that something “analogous” is a personal characteristic that you can’t change at all, or you can’t change without great personal cost or difficulty – like sexual orientation or CITIZENSHIP.
The Supreme Court has said that the central purpose of section 15 is to promote “substantive equality” by fighting discrimination. So in addition, courts will focus on whether the law or government action is discriminatory in creating a disadvantage by perpetuating (or indefinitely continuing) prejudice or stereotyping.
http://www.cba.org/bc/public_media/rights/232.aspx
well FATCA and its underlying rationale, citizenship taxation, certainly does trounce all over that.
Yes it does. You might want to check out another blog where I have been posting about this. You might want to consider telling a little blurb about yourself and your life story for the author who is actually becoming quite interested in the plight of the people here.
http://taxpol.blogspot.com/2012/04/ireland-in-on-fatca-no.html#comment-form
And just because the US engages in the unjust practice of taxing it’s expatriates does not mean that Canada can help them enforce it without breaking Canadian law. I think we have a winner. I hope a rich dual citizen resident in Canada takes this to court and wins. Maybe Bubblebustin could be a good candidate for this.
The first that the Supreme Court of Canada decided under S. 15 of the Charter Rights – was interestingly a citizenship based case. The issue was whether a citizenship requirement to practise law violaeted S. 15 of the Charter. In a rather uninteresting decision (given all the hype about it being the first case decided under S. 15), the court struck down the citizenship requirment to practise law. Interestingly there was almost no analysis of citizenship as a ground of discrimination. The court just seemed to assume that citizenship would be included.
The Charter of Rights applies to government activity. I am not at all certain that the conduct of the banks would be covered by the Charter. But, I don think that any treaties where people were discriminated against based on citizenship might violate the Charter.
@renounceuscitizenship
The charter would apply to any FATCA “partnership” agreement between Canada and the US which seems to be the direction we are going in.
I believe that the Canadian Human Rights Act would apply to any federally regulated service provider. So if a bank (or other service provider) discriminates adversely against a select group of Canadian citizens because they have a certain place of birth, that could be a violation.
The actions of the government are governed by the Charter.
In addition to the obvious equality and discrimination and privacy issues, there is all the issue of “harm”. The recent Charter challenge to the Federal attempt to close down the Insite safe injection facility was based on the concept of exposure to harm.
According to Bruce Ryder, law professor at Osgoode Hall Law School, in a Globe and Mail article, “The Insite ruling is a warning to the government that any of its laws or policies which restrict liberty or threaten lives or health are vulnerable to Charter challenge, if compelling evidence calls into question their effectiveness in achieving their stated goals”.
http://www.theccfblog.ca/2011/10/insite-decision-and-future-of-charter.html
Allowing Canadian banks to identify US-born Canadians to a foreign state, and thus expose them to unusual or severe penalties administered by that foreign state (for having a legal Canadian bank account filled with legally earned Canadian earnings) – could meet the definition of “harm”.
@Tim
By FATCA partnership agreement I assume you mean an agreement between governments. An agreement that singles out U.S. citizens would violate S. 15 unless it can be saved by S. 1 of the Charter. It may be that it can be saved by S. 1. What is your understanding of what the terms of such an agreement would be?
@renounceuscitizenship
I doubt it can be saved by section 1 or that a government would want to take that risk in court on what would not be particularly popular legislation other than among banks. The terms of an agreement would probably somehow require Canadian residents to sign on there T1s and T5s whether or not they are a US “Person” and allow their T1s and T5s to be sent to the IRS. Courts in general are becoming less fond of S.1 as the years go by. I don’t think its an open and shut case but the government would have to fight it all the way to Supreme Court of Canada in a very public and messy way.
The other thing to remember is actions of the Federal government are still regulated also by the old Diefenbaker era Bill of Rights too.
BTW – has anyone reached out to the Canadian Constitution Foundation regarding potential Charter implications of FATCA?
The aforementioned MP John Weston is a founding member.
http://www.canadianconstitutionfoundation.ca/freedomteam.php
@Wondering
I don’t think we’re quite there yet. Keep the pressure on people like John Weston for now.
Yeah, for now there’s no tort – no injured Canadian party – no case to try. Just implications.
@Tim
The Bill of Rights is worthless – it is only an interpretive aid. In this case, I don’t see how it could help.
Now that I think about it, the very first case that the Supreme Court of Canada ever decided under the Charter was also a case where the issue of citizenship was raised (also about the right to practise law). In this case the real issue was the Mobility Rights section of the Charter.
Citizenship is also a prohibited ground of discrimination in provincial human rights codes – meaning that, as ground of discrimination, it is well entrenched in Canada.
If you look through all the comment letters to US Treasury “recalcitrant” account holders are a big issues. Basically the US doesn’t want any but many of the banks are saying under the local laws(such as here in Canada) they have no choice to accept them. There other issue is I suspect many non US Person Canadians will refuse to sign anything saying they aren’t a US Person simply for the rational they don’t want to sign a “foreign” government form even if they aren’t a US Person.
The other and there many other issues is in the case of a checking or savings account what is exactly is the “US Source” income the banks are supposed to withhold on in the case of recalcitrant customer. Is it the check they receive once a year from a US relative?
@all- the U.S. is the case of a nation state behaving badly. It doesn’t care about individual rights or the sovereignty of other countries. It doesn’t even really care about its own resident citizens. The citizens exist for the sake of the state and not the state for the sake of its citizens.
Many of the members of the U.S. legislature are themselves some of the most corrupt politicians in the world. In school when we were taught math we learned that 0+0 equalled O. We also learned that any rational or irrational number that was multipled by 0 would equal 0 and that it was impossible to divide by 0. U.S. politicians don’t seem to have been present when these lessons were taught.
When you have a government that invents a concept in which you are granted a fictional residence within its borders, just so that it can prosecute you, then you know you are being subjected to a grave injustice. The U.S. doesn’t care about doing what is right. All that they care about is imposing their will by fiat.
As someone else on this thread has already stated, it would be a grave miscalculation to give in to any form of FATCA. If the foundation is laid now the superstructure will follow shortly. And in the end it will be in an even worse form than that of the original proposal which was rejected.
@omghesstillanamerican, don’t be spreading any rumours that I’m rich-my husband and I have been self employed all of our working lives and are only entitled enough CPP to keep us in “no name” cat food! The IRS has taken a big chunk of our savings and I don’t feel compelled to spend much more in lawyers fees. Hence our application to TAS and the potential for action through my MP, John Weston (both free). Because of Vancouver real estate I may have once been “entry level rich”, but thanks to IRS, NO MORE!
@wondering, “Allowing Canadian banks to identify US-born Canadians…” For FATCA to be enforceable, banks will not only have to identify those with US birthplaces, but also US citizens born in Canada and visitors to the US who meet the substantial presence test. It seems to me that the onus will be on every customer to prove that they aren’t a US person, to prove a negative.