See also my earlier post: Tax Treaty in conflict with Canada’s Human Rights Act
Another angle that we must consider is the Canadian Human Rights Act, which upholds ChearsBigEars view that we may sue the banks for the intention to violate Charter rights. This is on the basis of the following (section 12):
12. It is a discriminatory practice to publish or display before the public or to cause to be published or displayed before the public any notice, sign, symbol, emblem or other representation that
- (a) expresses or implies discrimination or an intention to discriminate, or
- (b) incites or is calculated to incite others to discriminate
if the discrimination expressed or implied, intended to be expressed or implied or incited or calculated to be incited would otherwise, if engaged in, be a discriminatory practice described in any of sections 5 to 11 or in section 14.
Obviously, the advertisement of a position whose sole purpose is to discriminate against certain of the bank’s clients on the basis of their national origin is a clear violation of section 12 of the Human Rights Act. There is a hermeneutical principle, that one text interprets another, allowing opportunity to understand the context in which laws exist. Obviously, the people who wrote the Charter of Rights and the Human Rights Act wanted to eliminate the possibility of discrimination based on the basis of national origin. Thus, the banks’ job advertisements seeking FATCA administrators is a discriminatory practice and thus the Federal government must not allow the banks to do this under the Charter of Rights. We have case for a Charter challenge. We wish to have equal protection and equal opportunity. We also have the basis of a human rights complaint against TD Bank et al.
Please note that the Human Rights Code also prohibits retaliation based upon the lodging of a complaint about discrimination. I am little less worried now that TD will close all my accounts (as a retaliation for these posts).
Sounds promising..It would also send a shot across the Government’s bow that FATCA is discriminatory if they sign the IGA or they don’t care sign it in the knowledge the courts may strike it down later?? Possible ‘carve out’ for resident Canadian citizens? I wonder if people with Landed Immigrant status would be covered under this as well?
@Don, it is a “Human Rights Act” not a “Citizens Rights Act”.
Still sounds promising…I’ve been investigating the Human Rights Act angle with one European country as well. One thought though the Charter only applied to government if I read a previous post correctly? Does the Human Rights Act apply to more than government (ie: companies)?
@Don, Human Rights Act also applies to private sector, and that becomes clear as you read it. Section 12 applies as widely as possible, as it uses an infinitive with no specified agent: “It is a discriminatory practice to publish“. This makes the application universal.
Here is the website the explains the procedure for making a Human Rights Complaint: http://www.chrc-ccdp.ca/eng/content/i-want-complain
As I possess a CLN, I think it would be incumbent for someone else to file the complaint. Who is willing to do so?
If the complaint goes nowhere, then we would have grounds for a Charter challenge to the Federal Government for doing nothing to stop the banks from advertising these FATCA positions. I should also mention the FATCA webpages on the banks websites, and CBA’s published statements as well.
@Petros – Doesn’t it apply to you? Everytime you open a bank account, or other financial product they’re going to ask you to produce a CLN because I believe earlier you mentioned that you’re born in Alaska.
You are being discriminated against and being asked to do something that other Canadians with a Canadian place of birth or non-US won’t be asked to do. The banks should open your account on the strength that you are Canadian and all else doesn’t matter.
@Don, the complaint must come from someone who is directly concerned. The complaint should not focus on whether the person making the complaint is concerned or not. TD Bank has a copy of my CLN already. Another person or a group of persons should make the complaint, not me alone.
They may ask, if you are compliant with US tax code. Then you may need the 8854. You can then tell them you have not done the FBAR and see if they try to shut down an account. You may consider transferring most of your money elsewhere before you try this procedure. Set up $10,000 in a US trading account.
thanks for putting up the link to you previous post on the tax treaty. Imfound it really informative.
A couple of thoughts:
1. The Canadian Charter of Rights and Freedoms is part of our Constitution, but articles 7-15 can be overridden by the notwithstanding clause. This includes discrmination under article 15. Most federal,parties have at one time or another said thet would never override, if I remember correctly (Here in Quebec this has been discussed ad nauseam in the local press in reference to provincial legislation).
2. One horrible way of eliminating the discrimination against resident non-dual Americans would be to allow CRA to collect for the IRS from Canadian citizens. Everyone in the same pot. Hopefully, this would be politically impossible.
3. I really hope the constitutionality of the tax treaty will be tested on the possible grounds that the Federal government does not have the power to cede sovereignty to a foreign government, as it seems to do by allowing the US to levy and collect taxes in Canada from legal residents of this country. If this were decided, I think it would require a constitutional amendment to ratify such a treaty.
@Old & Simple
With regard to your second point, I just read that the reason Flaherty has said all along that CRA will not collect tax if the person was a Canadian citizen at the time the tax was incurred, is because it is already in the Treaty.
Hope I did not misunderstand what I read.
You got it right. Here’s the link, s. XXVI A (8) of the Treaty.
Precisely why point 2 is tricky. If discrimination against non-Canadian citizen residents is discrimination in the FATCA procedures or the IGA, so would it also be in the tax treaty. As I said, I think it would be politically impossible to remove that protection, but at the same time, exposing all residents of Canada to the danger would be non-discriminatory.
In equal pay legislation in Québec, they had to specifically mention that lowering men’s wages to the level of women’s wages would not be allowed as a means of eliminating discrimination. Not the same problem, but one should be aware that lowering the bar of protection for everyone must also be disallowed.
We really need full time political marketers consider well placed ads.
Would someone here be good at banners ads? I propose advertising this site on professional accounting web sites and any other where there would be stakeholders.
I believe this is our man. He is with the ACLU
I called Jameel Jaffers office at the ACLU earlier this week. They said someone would return my call within a week, so far still waiting. I figured even if he’s not interested I’d at least give them something to talk about.
I wrote Mr Jaffer more than 2 years ago I signed it using a pseudonym with no forwarding address. If he read my letter or even remembers reading it he should be familiar with my story. I became aware of Mr. Jaffer when Anna-Maria Tremonte interviewed him on The Current. I’ve clung to the hope that he might be the answer to this unrelenting cloud that hangs over my head. I’ve mentioned his name on couple of previous posts I’ve made.It seems others have looked into the ACLU but disregarded it as they dont list FATCA on their website. I’ve decided to pursue him regardless , I’ve come to the conclusion I might be the guinea pig to jump into the water. If there is such a thing as a slam dunk case perhaps it’s mine.
My Canadian parents chose to spend their first wedding anniversary in Buffalo N.Y. I was born the following day. I am a fifth generation Canadian with no family ties to the U.S. Except for the first few days of life spent in an American hospital and the week I spent in DisneyWorld in 1985, I have resided exclusively in Canada.
I was born more than fifty years ago. I left the U.S. with a flimsy scrap of paper with the heading Certificate of Birth registration. This paper told me that I am an American citizen, but didn’t detail any terms nor conditions. I also received a Canadian document labelled “Canadian Born Abroad” which stated that I was a naturalized Canadian. It had more explicit instructions in that I was to have made my domicile in Canada (which I did) or I was to claim Canadian Citizenship at the age of eighteen.
The monkey in the wrench is that I did take out an American passport. In my twenties I worked in a busy downtown Toronto Dental office which catered to the needs of a professional clientelle,many of whom being lawyers. I therefore had an unlimited resource of free legal advice. The common consensus among my survey regarding a passport was that I should take out both. My original passport I let expire untill some years following 911, my U.S birth certicate became unacceptable at customs and was told by an official I must take out an American passport. We were living in a border town at the time. It was very convenient and commonplace to cross the border for shopping or entertainment. So I was compelled to take out my current American passport.
US law also prohibits discrimination based upon nationality and national origin. If a US bank were to refuse accounts to the foreign-born or those with dual citizenship it would be in violation of the law. Yet the US government is causing foreign banks to refuse accounts to US persons, regardless of whether such accounts are declared.
@BorderBaby, you provide a very compelling example of how even just 1 day in the US – the accidental day of your birth – sentences one to a lifetime (and beyond the grave, via your estate) of the US serfdom that is an inseparable part now of ANY connection with the US – even without any economic ‘nexus’. Mr. Jaffer of the ACLU might be the very person to understand the important questions this poses for civil and human rights https://www.aclu.org/blog/author/jameel-jaffer . The ACLU has taken on issues relating to the IRS https://www.aclu.org/search/irs?show_aff=1 . There are multiple aspects to the US abuse of those deemed ‘US taxable persons’ for life – merely by virtue of accidental birthplace and parentage. And the confiscatory and disproportionate nature of the FBAR penalty structures – potentially applicable even for those who are ‘nonwillful’ , owe no US taxes, and whose accounts are entirely legal (and in many instances local to their actual country of tax residence) was flagged by US tax law practitioners and the IRS Taxpayer Advocate as potentially unconstitutional.
The automatic annual FBAR data-mining of non-US accounts which include those of non-US persons with which we happen to have a relationship (non-US spouses, business partners, employers, charitable and voluntary organizations, estates, etc.) is very carefully never addressed by the US in terms of legality. None of the FATCA information we see addresses that either – and why not, if the US feels that it is on such firm ground laying claim to non-US assets that belong to non-resident non-US citizens?
Then there is the total lack of control, accountability, recourse and transparency over the uses and distribution of the data – again, which belongs properly to those outside the US, with no US economic connection, and often with only a peripheral birthplace or a US status parent as the flimsiest of excuses to extort onerous intrusive reporting and unwarranted penalties from dual citizens and ex-greencard holders living abroad – though the equivalent would never fly if the IRS and Treasury tried to impose the very same conditions on US residents without a warrant or cause or due process.
Outside the US we have been judged and sentenced without evidence of wrongdoing or due process. Every year we are considered guilty before the fact, and must churn out reams of incomprehensible forms and figures to prove that we are innocent of wrongdoing. And in exchange? Nothing. No services, no recourse, no assistance, no voice or representation.
Just because the US makes these laws doesn’t mean it is just.
I hope the ACLU takes an interest.