Blaze and I have sought advice on how best to proceed with a legal challenge to Canada’s proposed IGA legislation to implement FATCA.
The advice received from legal people we consulted is that the first step should be to obtain a “warts and all legal opinion” on the merits of a challenge and that Joe Arvay, given his expertise and credibility, is the one to do this.
Please provide your comments and suggestions to this proposal, originally posted on Sandbox:
http://maplesandbox.ca/2014/possible-charter-challenge-legal-opinion-needed-and-funds/
“As most of you know, the possibility of a challenge under the Canadian Charter of Rights and Freedoms has been discussed for some time.
With the signing of the IGA and proposed legislation to override existing Canadian laws, we need to determine our next steps.
http://www.fin.gc.ca/treaties-conventions/pdf/FATCA-eng.pdf
http://www.fin.gc.ca/drleg-apl/2014/can-us-eu-0214l-eng.asp
Prominent Canadian constitutional lawyer Joseph Arvay has reviewed the IGA and the proposed legislation. He has recommended as the first step a formal legal opinion to advise if a challenge would have a reasonable possibility of success. In his letter to me (real name and address removed)
http://maplesandbox.ca/wp-content/uploads/2014/02/Mr-Arvay-Opinion-Letter.pdf
Mr. Arvay said
“You have asked for our opinion as to whether or not a challenge to any proposed legislation would have a reasonable prospect of success. Our initial review of the proposed legislation indicates that there may be a serious question as to whether it would withstand constitutional scrutiny once enacted. We question whether the proposed legislation is compliant with the Charter of Rights and Freedoms or whether it violates protections under the Charter against discrimination based on national origin or citizenship, against unreasonable search and seizure and against deprivation of liberty except in accordance with the principles of fundamental justice. We also question whether the proposed legislation falls validly under the federal jurisdiction over taxation, or whether it is in substance regulation of financial institutions in which case federal jurisdiction is limited to regulating banks but not provincially regulated financial institutions such as credit unions.”
IRSCompliantForever and I have communicated with four other lawyers. They all agree a legal opinion should be our next step before proceeding further.
Mr. Arvay’s letter also says
In order to answer those questions, a proper opinion needs to be prepared. We are prepared to prepare this opinion for a fee of $15,000 plus applicable taxes.
So, the cost for this legal opinion would be $15,000 plus tax, which would bring the cost for the opinion to around $17,000. To many, that cost for an opinion probably seems steep.
However, the four lawyers agree that this is a very reasonable cost and is far below what they would expect we would pay for a formal legal opinion.
To put the costs in perspective, we would need one contributor at $17,000 or 17 contributors at $1,000 each or 34 contributors at $500 each or 100 contributors at $170 each or 170 contributors at $100 each or a combination of those or other amounts. (Due to the administration, we would request donations of a minimum of $100 each.)
We should aim to raise more than that amount for contingency and administrative purposes.
There is agreement among those that we have contacted–including with a senior legal expert–that Mr. Arvay would be an excellent choice for a Charter challenge.
The next step is to decide a) Do people want to proceed with this? b) Do people want to retain Joe Arvay for a legal opinion? c) Are people willing and able to contribute to the costs?
Many individuals have asked if Canadian Civil Liberties Association could assist with the case. Abby Deshman has advised each case must go through an individual approval process. When CCLA becomes involved:
The general mode of operation is as an intervener, requesting the court add CCLA to the ongoing case as a friend of the court. Normally, the case is already going forward with the parties independently represented. As a non-profit, we unfortunately do not finance others’ legal cases, and in general are not in a position to represent individuals in launching legal actions.
Ms. Deshman, however, has advised it is possible CCLA might be able to provide some assistance with legal research.
Please advise if a) You agree we should seek this legal opinion b) if you would be able to contribute (we will request a minimum donation of $100).
Someone is researching ways we might raise and administer the funds if people do want to proceed and are able to contribute.
If the case proceeds beyond the legal opinion though the courts, the costs will, of course, increase greatly. We are not able to say exactly what the costs would be, but we expect they could be $100,000 to $250,000 or more.
You should note that after we receive a legal opinion, we will not be able to publicly share the details of the content or post it on line. This is for strategic reasons and to ensure confidentiality of the position the case may take before the courts.”
You may want to consider using a Crowdfunding site. Promote it to ‘US Persons”
Now if you could get 100,000 ‘US persons’ at $5 or $10 each, you’d have between $500,000 to $1M in funds and that’s only scratching the surface.
And you might get ‘US persons’ outside of Canada donating as well to see an IGA be torn in half somewhere in the world.
This is a worldwide problem so perhaps the funding should come from there as well.
See Forbes article – http://www.forbes.com/sites/chancebarnett/2013/05/08/top-10-crowdfunding-sites-for-fundraising/
I pledge my 100.00 when it is needed. I will work hard this week to see if the Native Community can help on this. This can also be taken to :Aboriginal” court as well. This will have an impact on the Aboriginal people’s of Canada as well. I’m working on it… stay tuned!
@ brockers. I would happily donate to support this challenge and I hope that many many other USPs in lOndon would also do so.
I will contribute but also agree with a crowdfunding approach. I watched 25,0000 get raised in days for a wheelchair accessibility project.
Boy thats a lot of money. I too think that one has to get a lot of people to join. I wouldnt think it would be that hard, but it will go hand in hand with publicity.
I`m not in Canada- but I`d send 500$ to somebody here to help with the cause!
It is more than worth it to me to take another $1,000 from my retirement savings to put toward getting a legal opinion whether or not a Charter challenge should go ahead, so I make that pledge. I want the insanity to end for all ‘US Persons in Canada’ (and elsewhere), but especially for my son and others like him who are entrapped into a *supposed* US citizenship that the US says cannot be dissolved for a person with a ‘mental incapacity’ and that a parent, guardian, trustee cannot act on that person’s behalf.
Society talks about the rights of persons against discrimination. We hold dear a Canadian Charter of Rights and Freedoms that stands for nothing if it does not protect against the discrimination of so many people by national origin.
I want to know from this government if Canadian citizenship means anything for someone like my son (and so many others) or whether such a citizenship by birth and living in this country his whole life means nothing if he has a “US indicia”.
Just to quote the Indian Act to show we all are protected under the “Charter” here is the quote…..The Indian Act was amended extensively in 1985 with the explicit objective of bringing it into line with the equality provision of the Charter of Rights and Freedoms. Section 15 of the Charter, which came into effect on April 17, 1985, declared that every person 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 … sex,” and other enumerated grounds. The federal government was very concerned that the blatant sexual discrimination in the Indian Act was vulnerable to attack. Although the same discriminatory provisions had been upheld a decade earlier by the Supreme Court of Canada when challenged under the Canadian Bill of Rights,76 it was felt that the constitutionalization of equality would lead to a different result. In addition, the United Nations Human Rights Committee had declared that Canada was in violation of the International Covenant on Civil and Political Rights for denying Indian women who had lost their status on marriage the right to reside in their own communities.77 The Indian Act was amended, therefore, to change the rules regarding entitlement to registration and to empower Indian bands to enact their own membership codes if they so desired. This is how the amended act outlines the complex set of criteria which determine who the government considers to be an Indian:
But it saddens me that there are no lawyers around who would do it for a special lower price just for the cause of human rights in their own country! Seems to me that all the lawyers are doing is making money for themselves on the suffering. They STUDIED law, for Christs sake. You`d think somewhere inside they want to uphold The Charter or Constitution instead of profit by allowing the abuse of it.
@IRSCompliant
Thanks for this post and for spending the time to create this opportunity. I would suggest that this funding needs to be received within a maximum of 30 days. There are two reasons for this:
First, if this is to happen it needs to move quickly.
Second, $17,000 (divided over the number of people affected by this) is a pittance. It is obvious that if $17,000 cannot be raised in 30 days that it couldn’t ever be raised.
Furthermore, the real issue is where is the other $250,000 (at least) going to come from? That’s what needs to start NOW!
Anyway, I commit to matching Cagary411’s contribution.
@Polly In general I share your view about the non-responsiveness of lawyers. That said, the legal issues here are far more complex than meet the eye. This is NOT just a question of whether a FATCA IGA violates the Charter. Even if it were found to violate the Charter (which is by no means certain), it could still be constitutional under the “savings clause” of Charter S. 1. Even then, the Government can still pass the IGA – using an override” – as long as it specifically states its intention to override the Charter. Therefore, legal expertise of a “specific kind” is necessary.
@Polly
Your comment reminds me of a lawyer’s joke I heard years ago. It goes something like this:
A man is holding his “baby son” in his arms before putting him to bed. He says, to his son:
“Son, there’s a lot of injustice in this world. So, I think you should become a lawyer so that you can make a profit off it.”
Another resource on information re ‘crowdfunding’ — this one from techsoupcanada.ca.
Which Crowdfunding Platform Is Best for Your Nonprofit?
I say let’s try the crowd sourcing. I’m willing to donate to this and if we can get some media with regard to the crowd sourcing letting ALL Canadians know this affects everyone then we’ll see how much is reasonably expected to be raised in the short term.
That’s an expensive prospect and I do hope Canadians are willing to step up to the plate to protect the Charter.
I’m in. Where do I send the money to?
I’m eager to donate also.
I am ready to write a cheque, certainly $100 to get the ball rolling, but I can do more than that. I am not sure what kind of group/organisation/committee ought to take the lead. There is no formal organisation, which might be necessary for something of this kind.
Thank you to Blaze and IRSCompliant.
I pledge a minimum 100 dollars even though I live thousand of miles from Canada since. If you win we all win!
@calgary411
I agree… put me down for $1,000 and more if/when necessary. Just tell me where to send it.
Hieronymus
Ready to send my contribution. I live thousands of miles from Canada but if you win we all win!!!!!!!!
RE: Those questions:
a) YES
b) YES
c) YES
AMOUNT: $500 (and more later when needed)
QUESTION: What about PR? How do we get the message out about this challenge?
RE: Crowdfunding — Here’s what I posted awhile back in another thread.
From your recent TV interview, Petros, I remember one of the hosts mentioning Kickstarter. I have a feeling this challenge is going to be very, very expensive though, so I hope there are some people who are wealthy enough to contribute significantly (perhaps inclined to help because they are FATCA fodder too) but not so wealthy as to have already paid for their own solutions. Anyway, here’s a G&M article about Kickstarter which unfortunately is US based and has complications:
http://www.theglobeandmail.com/report-on-business/small-business/sb-digital/web-strategy/a-kickstart-to-raising-funds-on-kickstarter/article4105948/
This is great. Thanks for your efforts. Thinking about all of the potential “US persons” just in Canada, I agree that crowdfunding should be considered – especially looking ahead to the big bucks needed for the court challenge.
In the meantime you could get set up with PayPal so you can accept smaller amounts and reduce your administrative overhead that way. I’m sure everyone would like to be involved, but for some with tight family budgets (like me) $100 is prohibitive.
a) I agree.
b) I’m willing to give $100.
Blaze and I are really happy with the responses — but please keep the commitments coming!
FYI, @GwEvil is actively researching funding vehicles.
We think now that this is actually going to happen.
Only a few hours into this and we have pledges to pay for 1/4 of the opinion. Pretty good … and a lot of people are watching the closing of the Sochi Olympics right now. Maybe I can get Mr. Em to match my pledge. After all, he saved $450 at the consulate by doing a relinquishment rather than a renunciation — never would have known about that if it hadn’t been for Brock (and a wife willing to try to learn everything she could about FATCA because she was so ticked off about it).
Was Indiegogo the one used for raising the Rob Ford crack video money?.
Yes…
http://www.indiegogo.com/projects/rob-ford-crackstarter
I used it and it went really well.
I think this is a worthwhile idea and I am willing to contribute toward it, but to me the real demons are FATCA and US Citizenship-Based Taxation. The IGA is only the means for the Canadian government to help the US implement FATCA.
How would a legal opinion that the IGA violates the Charter help to defeat FATCA and CBT? Could the opinion also address the question of whether customers could sue banks that comply with FATCA for discrimination based on national origin? That would be helpful.