But a major obstacle to all this is Canada’s Charter of Rights and Freedoms, which prohibits (Section 15.1) discrimination based on several criteria, including “national or ethnic origin.” Constitutional expert Peter Hogg has pointed this out in a five-page letter to the Finance Department, which is co-ordinating the IGA negotiations with the US.
“In my opinion, the procedures mandate by the Model IGA are discriminatory in a way that would not withstand Charter scrutiny,” Hogg says in his letter. “These procedures effectively treat individuals differently, and adversely, based on an immutable personal characteristic, specifically citizenship. If Parliament were to enact legislation authorizing and permitting this type of differential and adverse treatment, the legislation would contravene the equality protections in section 15 of the Charter.”
Opinion: Creating tax misery for nearly seven million U.S. expatriates
By Don Whiteley, Special to The Vancouver Sun March 12, 2013
This really should not be a post by me but am so excited by this, had to at least share the link. Tim mentioned over at MapleSandbox that something good would be coming in the next few days and to keep an eye on Vancouver Sun. I went over right away, and there it was!
@whitekat, I don’t mind using my real name, I just hate being forced to use facebook to comment. I wrote a comment, and then deleted it I realized I had to post via facebook
Thank god for Elizabeth May. What integrity.
The other parties could have submitted an FOI and made the same strong party-wide official statement, but they did not. We have been writing and calling them. We have provided all the background information to the shadow cabinets and their aides. They all have researchers. They could have consulted with Prof. Hogg, and reached the same conclusion.
Now we must ask these other parties and MPs why they did not do what needed to be done, and ask them what they pledge to do now, in recognition of this opinion – to uphold our rights as Canadian citizens and residents, and to respect the Canadian constitution and Charter. And I don’t mean some more fake bs responses about urging the IRS to ‘communicate better’ what we can do to comply with US extraterritorial citizenship-based taxation, or any permutation of such that places the burden on us via our unwanted and unsought status, and on any of our Canadian born children who inherited the shackles via parentage. And I want to see the party leaders pledge to assist us and oppose FATCA, not only certain MPs and certain parts of the parties. There have been some very conspicuous silences, as well as the useless referrals to HRBlock and advising us to ‘consult with professionals’ (at the extortionate rates we’ve read about, been quoted, and experienced).
@ badger
The Vancouver Sun article and the Green Party news media release have given me some good ammunition. I’ve already made use of the Vancouver Sun link in e-mails to two MPs. I have to admit that among my guesses as to who made the Access to Information request I omitted Elizabeth May. Stupid of me, considering how the Green Party and the Progressive Canadian Party have been our best allies to date. Sad to say, they are not enough. We need the NDPs and Libs and at least a smattering of Cons to come out stronger against FATCA. This was a good news day but we need even more good news days. I’m not sure if we’ve even finished the first round in this fight yet. It’s a long haul thing with a fast looming deadline.
Ok, here’s my facebook comment:
@Em, you’re right – we need the other parties. MP May and the Green Party have done what the others should have taken a firm party wide stance on. Anything less is unacceptable. Now we can challenge them with this evidence that a FATCA IGA is flawed in a concrete way which should offend and affront ALL Canadians. Do they want to be enablers of a US law that seeks to trash Canadian constitutional rights? Even if they want to appease the US, here is a line in the sand.
I realize that this is not a sprint, but a marathon – as Tim and others have pointed out. But, this gives us strength.
Lagoon and Arrow –
Luciw has written in this area before:
http://usxcanada.wordpress.com/2011/12/13/2011-dec-13-luciw/
http://usxcanada.wordpress.com/2011/09/08/2011-sept-8-luciw/
http://usxcanada.wordpress.com/2011/06/20/2011-june-20-luciw/
@Joe Zinga
Canada’s Dept of Finance gave this news release in the new year:
“The Honourable Jim Flaherty, Minister of Finance, and the Honourable Gail Shea, Minister of National Revenue, today highlighted that Canadians will have more contribution room to invest in their Tax-Free Savings Account (TFSA) in the new year.
“Our Government remains committed to its low-tax plan for jobs and growth, and we are very pleased to offer Canadians this important way to save on taxes and keep more of their hard-earned money,” said Minister Flaherty…
Key features of the TFSA to keep in mind:
A TFSA is available to all Canadians, 18 years and older;…”
http://www.fin.gc.ca/n12/12-179-eng.asp
I guess the feds want to leave it to the financial institutions to deliver the bad news.
As positive as the recent Vancouver Sun article is, Canada is still negotiating an IGA with the USA.
Does anyone besides me think that maybe now is the time to start some organized protests? Are there others besides me who live in the Ottawa area and would be interested in doing this?
We are at a pivotal moment in time here, with an IGA not yet signed, but discussions ongoing. Perhaps an organized protest can draw more attention to the issue and put more pressure on government BEFORE getting to the point of a signed IGA.
Thoughts anyone?
@bubblebustin, @Joe Zinga,
New Globe & Mail article that discusses TFSA’s and RESP’s for USPs:
http://www.theglobeandmail.com/globe-investor/personal-finance/taxes/if-youre-a-us-citizen-beware-these-tax-traps/article9747664/
Why can there not be full disclosure / transparency in government announcements that, although available for all Canadians over 18, this does not mean the TFSAs and RESPs are effective financial planning tools if one is a US Person in Canada? The same disclaimer should be included with any government or financial institution “advertisement” for the Registered Disability Savings Plan (RDSP), another “foreign trust” in Canada not advisable for USPs who wish to benefit from a Canadian disability savings account. How else are potential consumers to know — until they eventually have to consult with an expensive lawyer or accountant to undo the harm done to them by purchasing these as a US Person?
@Calgary411,
Good comment, you should add that to the Globe & Mail article if you have not already done so.
Thanks, WhiteKat.
I added the same comment to the Globe and Mail article.
@calgary411
Thanks for the link. Maybe the author will do a follow-up article on how Flaherty’s much touted pooled pension plans and the largest investment most Canadians will ever make, namely a home, is taxable by the USG.
Thank you Professor Hogg for giving us specific details on why FATCA fails the constitutional test.
There has been much general discussion regarding how FATCA would violate Canadian privacy and banking laws but little specifics on exactly how. Following is a summary of SOME of the things that might have to be changed to allow FATCA to be implemented. Please note that I am not a lawyer and this is not a legal analysis. Since I live in BC this is a very BC centric summary, I am sure the other provinces have similar legislation.
The Canadian privacy legislation is called the “Personal Information Protection and Electronic Documents Act”
The full text is here: http://laws-lois.justice.gc.ca/eng/acts/P-8.6/FullText.html
The key provision is as follows:
4.3.3 An organization shall not, as a condition of the supply of a product or service, require an individual to consent to the collection, use, or disclosure of information beyond that required to fulfil the explicitly specified, and legitimate purposes.
The phrase “the explicitly specified, and legitimate purposes” may have enough wiggle room for the banks to squeak through, however the BC privacy legislation would appear to close down that option, other provinces may have similar provisions.
The BC legislation is called the “Personal Information Protection Act”.
A 2 page summary is here: http://www.cio.gov.bc.ca/local/cio/priv_leg/documents/pipa/guidepipaview.pdf
The full text is here: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_03063_01
The key provisions is as follows:
7(2) An organization must not, as a condition of supplying a product or service, require an individual to consent to the collection, use or disclosure of personal information beyond what is necessary to provide the product or service.
The phrase “necessary to provide the product or service” is much more restrictive than the “legitimate purposes” in the federal legislation.
The BC legislation also provides the following rule:
7(3) If an organization attempts to obtain consent for collecting, using or disclosing personal information by
(a) providing false or misleading information respecting the collection, use or disclosure of the information, or
(b) using deceptive or misleading practices any consent provided in those circumstances is not validly given.
So the bank cannot tell you that citizenship information is “required” and that you “must” provide it.
In terms of banking legislation, one federal law that would need to be changed is the “Access to Basic Banking Services Regulations” which can be found at: http://laws-lois.justice.gc.ca/eng/regulations/SOR-2003-184/page-1.html
The act specifies what ID is acceptable for opening a retail bank account, you require one Item part A and one from part B, or 2 from part A.
PART A
1. A drivers’ licence issued in Canada
2. A Canadian passport
3. A Certificate of Canadian Citizenship or a Certification of Naturalization
4. A permanent resident card or Citizenship and Immigration Canada Form
5. A birth certificate issued in Canada
6. A Social Insurance Number card
7. An Old Age Security card
8. A Certificate of Indian Status
9. A provincial or territorial health insurance card
10. A document or card, bearing the individual’s photograph and signature, issued by any of the following authorities
(a) Insurance Corporation of British Columbia
(b) Alberta Registries
(c) Saskatchewan Government Insurance
(d) Department of Service Nova Scotia and Municipal Relations
(e) Department of Transportation and Public Works of the Province of Prince Edward Island
(f) Service New Brunswick
(g) Department of Government Services and Lands of the Province of Newfoundland and Labrador
(h) Department of Transportation of the Northwest Territories
(i) Department of Community Government and Transportation of the Territory of Nunavut
PART B
1. An employee identity card, issued by an employer that is well known in the community, bearing the individual’s photograph
2. A bank or automated banking machine or client card
3. A credit card
4. A Canadian National Institute for the Blind (CNIB) client card
5. A foreign passport
Additionally they are required to collect info from part C:
1. The individual’s name
2. The individual’s date of birth
3. The individual’s address, if any
4. The individual’s occupation, if any
Interestingly there is no requirement for a Social Insurance Number, I am assuming that information is required in another part of the Bank Act.
There is a short list of valid reasons for denying an account and they must provide the reasons in writing along with contact information to the federal agency and how to complain about it. They can be summarized as follows:
(a) Reasonable belief that the account will be used for illegal or fraudulent purposes;
(b) History of illegal or fraudulent banking activity
(c) Reasonable belief that the individual made a material misrepresentation to the bank;
(d) Protect customers or employees from physical harm, harassment or other abuse
(e) We dont open accounts here, go to another branch instead.
One important item to note is that the “Access to Basic Banking Services Regulations” omits mandatory language. However the Banking Act section 448.1(1) states:
“… a member bank shall, … open a retail deposit account for an individual who meets the prescribed conditions at his or her request made there in person.”
Quotation edited for brevity and clarity, the full text is available here: http://laws-lois.justice.gc.ca/eng/acts/B-1.01/page-178.html
In terms of Human rights we have the “Canadian Human Rights Act”, the full text of which is here: http://laws-lois.justice.gc.ca/eng/acts/h-6/
The key provisions are:
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
and
3. (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
We also have the BC “Human Rights Code”, a summary is available here: http://www.ag.gov.bc.ca/human-rights-protection/pdfs/ProtectDiscrimination.pdf
The full text is available here: http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/00_96210_01
The key provision is here:
8 (1) A person must not, without a bona fide and reasonable justification,
(a) deny to a person or class of persons any accommodation, service or facility customarily available to the public, or
(b) discriminate against a person or class of persons regarding any accommodation, service or facility customarily available to the public
because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex, sexual orientation or age of that person or class of persons.
Yep, just had to put my 2 cents + GST & PST (gee, BC just went back to PST after tire-kicking the HST for a couple of years).
Yes, I know, I’m beating the “nationalist drum”, but hell, if that’s what it takes to wake apathetic Canadians up to the sovereignty threat from the United States then SO BE IT!
“As a full-blooded born in Canada, Canadian…I find it absolutely disgusting that the United States is overstepping its territorial bounds and exacting extra-territorial legislation. It’s sad testimony to the fact that the United States is no longer the “land of the free and home of the brave”. It’s more like “Land of the Fee and Home of the Naively Brainwashed” still into believing the exceptionality of the Union. Canada needs to stand up to the over-reaching tactics of this bully and tell them where to stick this FATCA nonsense. I wonder if Stephen Harper and his IGA-wanting financial cronies really understand the extent of the damage that an IGA will do to the sovereignty of this great nation (Canada) or will this be another step that they will take to turn Canada into United States Lite. Short of Harper intending to turn Canada’s flag into America’s doorstop, I believe Mr. Harper’s intention is to sell Canada’s sovereignty and become U.S. state # 51! And I, for one, will not let that happen. I wonder if any other true-blooded Canadian has the guts to stand up for accountability in government.”
@The_Animal, excellent comment. I hope that there are some more Canadians out there who love Canada rather than the US!
Well, now you know who I am. Friend me on FB. 😀 And maybe we can keep each other updated on how we can fight this “US juggernaut”…and derail it for good. Would really like to talk to calgary411 since her son and my son are in the same boat in terms of not being able to renounce their citizenships due to their disabilities.
Swiss Pinoy, I fully intend to be the “burr” up the IRS’s ***. Or as painful as a hemmerhoid to them. They don’t have any right to my banking information regardless of whether my wife has funds in there or not. And I will not give them my information willingly. They can pretty much kiss my ***!
Calgary411, if they do not add your comment to the article, may I (considering I have my own developmentally disabled son…who is in the same boat) take part of your letter and amend it to fit my situation since it pretty much hits the key points of why those of us who have “children” who are trapped by US citizenship? And add it to my rather “nationalistic” comment that is already on the article comments?
From the Swedish constitution
2 § Den offentliga makten skall utövas med respekt för ALLA MÄNNISKORS LIKA VÄRDE och för den enskilda människans frihet och värdighet.
Den enskildes personliga, EKONOMISKA och kulturella VÄLFARD skall vara grundläggande mål för den offentliga verksamheten. Det skall särskilt åligga det allmänna att trygga rätten till hälsa, arbete, bostad och utbildning samt att verka för social omsorg och trygghet.
Det allmänna skall främja en hållbar utveckling som leder till en god miljö för nuvarande och kommande generationer.
Det allmänna skall verka för att demokratins idéer blir vägledande inom samhällets alla områden samt värna den enskildes PRIVATLIV och FAMILJELIV. Det allmänna skall verka för att alla människor skall kunna uppnå delaktighet och jämlikhet i samhället. Det allmänna skall MOTVERKA DISKRIMINERING av människor på grund av kön, hudfärg, NATIONELT eller etniskt URSPRUNG, språklig eller religiös tillhörighet, funktionshinder, sexuell läggning, ålder eller annan omständighet som gäller den enskilde som person.
§ 2 Public power shall be exercised with respect for the equal worth and individual freedom and dignity.
The personal, economic and cultural welfare shall be fundamental aims of public activity. It shall be incumbent upon the public to ensure the right to health, employment, housing and education, and to promote social care and social security.
The public authorities shall promote sustainable development that leads to a healthy environment for present and future generations.
The public authorities shall promote the ideals of democracy as guidelines in all areas of society and safeguard the individual’s personal and family life. The general will work for all people to attain participation and equality in society. The public authorities shall combat discrimination of persons on grounds of sex, color, or ethnic NATIONELT ORIGIN, linguistic or religious affiliation, disability, sexual orientation, age or other circumstance affecting the private person.
@The Animal,
Absolutely — reword my comment for your use. Any time — please do that with anything you agree with that I might say on the subject. It will make what we are trying to get across that much stronger. Your family and mine aren’t the only ones — many will not have a voice.
@ The_Animal
Great comment and the other two are too! I don’t do Facebook so all I can do is give you all an “up arrow” or “thumbs up” or “like” or whatever, right here. Thank you! 🙂
Thank you, Calgary 411, Pretty much word for word, except where I inserted my situation as opposed to yours:
Thank you, Mr. Whitely, for your article.
Thank you so much, Mr. Hogg, for taking this on — pointing out to the Canadian government what the Canadian Charter of Rights is to protect. Your action heartens me for perhaps being able to protect the rights of my developmentally delayed son and others like him, born in Canada, raised in Canada, never registered with the US, never lived in the US, never had any benefit of US citizenship, another of the “Accidental Americans” with no choice in the matter. I am the Canadian born, 100% Canadian father (born and raised to a Canadian mother and a Japanese father in Edmonton, Alberta now residing in British Columbia); The citizenship tie to the United States transmits from my spouse. I nor any other Parent, Guardian or Trustee of a developmentally delayed or otherwise mentally compromised family member has the right to renounce that “so-called” US citizenship on their behalf. These people are then absurdly bound to the US tax law and obscene cost of compliance, year after year after year, and all that FATCA and a Canadian signed IGA will provide them — truly second-class Canadian citizenship by virtue of the US citizenship they are not allowed to shed.
With the extra-territorial overreach of US law into Canada with FATCA and the Canadian government contemplating signing an intergovernmental agreement with the US , all US persons living in and citizens and contributing members of Canada (as well as other countries) face certain discrimination in the countries where we choose to live:
“15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
Will Canada stand up for us as it should — or what is the purpose of the Charter of Rights? Will all of our government representatives really take the time and effort to know how this affects us? Elizabeth May gets it — how about the rest of those we have elected to office?
If the media doesn’t pick up on the importance of Mr. Hogg’s statements to the Canadian government, something’s rotten in Denmark (or Canada)!
I felt that it was beneficial to keep the wording the same (substituting my situation in place of calgary411’s since we are both struggling with the same situation – and since I am on Facebook; I have no qualms about taking the fight to the media). As such I am angry that the United States has essentially put a chokehold on my autistic son and has implicitly made his situation that of a “trapped U.S. citizen” as he will (by virtue of his mental capacity) have no idea of the ramifications behind renouncing a citizenship. My wife can escape by donning Canadian citizenship, and my three other children can renounce when they are 18 however, my autistic son will never be able to and that is where the United States becomes absolutely predatory.
Thanks for Facebook posting “our” comment, Animal. We speak for many other families too. That we are not allowed resolution for our kids is so wrong!
@the Animal
Your b@lls to the wall attitude makes me smile! Banzzzaaaaiiiiii!!!!!!!!