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.”
Add retired Canadian hockey players who came back to live in Canada to this list. They must at least have green cards if not dual citizenship. I bet their retirement nest eggs are up for grabs by the IRS as well.
@Blaze
You may be right about the time it takes to set up a chartered non profit. No, I’m not an expert, but I am aware of a couple of cases where very small groups have managed it. One was a religious group with less than 25 members, another a stray cat rescue group. The abbess of the religious group files the report papers once a year to Corporations Canada.
I do believe that the group could not be organized principally to go to court, but would have to have more permanent and general goals, like defending the rights of “US persons”. This could be Isaac Brock or Maple Sandbox. Then they could perhaps aid the persons filing suit. So maybe there’s an expertout there tharcould help.
This page at Corporations Canada might help:
http://www.ic.gc.ca/eic/site/cd-dgc.nsf/eng/h_cs04953.html
Count me in for $100 – time to act.
“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.” ”
This is TOTAL nonsense. Joe already has an opinion due to having followed this for a long time. I’m skeptical about this and feel that under no circumstances should we give up the right to express opinions publicly. We need to be there for the public. I would not support a challenge of this magnitude unless it was a class action suit launched, from the beginning, because the participants want to protect our charter. Once a CAL is launched watch how many other lawyers want a piece of the action. I say to Joe, sue the government and make a name for yourself which will be worth a fortune and attain Isaac Brock status for you in the history of this country. I can’t believe the onus is on us as individuals to hire an QC constitutional lawyer. BOGUS!!!! Sorry but this macks of opportunism. I say Joe has plenty to go on already on this to just walk into court and win. If he needs an opinion after all this time then he doesn’t think we will win. Where are all the other “constitutional lawyers” that can’t win such a simple case? I’m not convinced yet. I would like to get quotes from other lawyers first and find the one that believes in our country enough to do a case on contingency. Launch the CAL and then ask for donations but no way am I entering anything that would prevent me from informing hundreds of thousands of others who don’t know what’s happening.
Did Isaac Brock need a retainer in order to save Canada from the Americans or did he do what he did out of patriotism? This case is the biggest case in our recent history and the lawyer who takes it will go down in history for facing down any traitorous Canadian politicians who would destroy what this country stands for.
While many in Canada and Britain believed war could be averted, Brock began to ready the army and militia for what was to come.
Brock’s actions, particularly his success at Detroit, earned him a knighthood, membership in the Order of the Bath, accolades and the sobriquet “The Hero of Upper Canada”.
Did he ask for funds for his work? No he didn’t. What we need here is a modern day hero in his image, not someone who imagines that this is just another mundane case of little national import whose details need to be kept secret. This is a major challenge to our charter. I say we should keep looking for a warrior who doesn’t need to ask the soldiers under him for funds for more bullets. These other 4 lawyers Blaze mentions? Let them join us to defend Canada, not ASKING us for anything. These lawyers are millionaires because Canada was kind to them in allowing them to rise to the top of their professions and be awarded Queens Counsel titles. Now let them pay Canada back.
If I was a rich as these lawyers and believed our country has been given over I would get other like minded lawyers together for the challenge and not ask the poor confused downtrodden villagers for money in order to defend the village.
@ Chears Big Ears
I don’t know anything about how the law industry works but the way I interpreted this is that the opinion would either say YES we have a good case for a legal challenge or NO we do not. To make that determination there would be quite a bit of research involved. I wouldn’t expect anyone to do that for free. Anyway, if the answer is YES then Joe Arvay would not want to show his hand to the government by releasing all the details of why he came to the YES opinion. I can understand that. If the answer is NO then he would probably give us the reasons as to why he found this to be the case. I think he has probably only been looking at this on the surface up to now so I can see the need to dig deeper before committing to a legal challenge to the IGA. None of this stops us as individuals from expressing any opinion we might have at anytime we want based on our own observations and even our gut feelings. Just my opinion though because really I have no experience with legalese and legal protocols and such. Heck this is the first time I’ve ever been aware of these opinion things.
I would pay for an opinion about why I came to this country expecting peace, freedom and security like the millions who came here to escape oppression by their former governments thinking this country stood for anything at all.
Food for Thought: IRS Forces Citizens to Pay a Percentage of their Taxes to Queen of England.
http://politicalvelcraft.org/2012/02/08/americans-pay-a-percentage-of-their-taxes-to-the-queen-of-england-via-the-irs/
Did anyone realize that there are Wikipedia pages listing Canadians of American origin? Some of these, of course, are historical figures but definitely not all. May be worth a comb through; who knows who we might discover has US ties and may be well known and might be interested in helping with a constitutional challenge (political or business person, sports figure or entertainer).:
http://en.wikipedia.org/wiki/Canadians_of_American_origin
http://en.wikipedia.org/wiki/Category:Canadian_people_of_American_descent
http://en.wikipedia.org/wiki/Category:American_emigrants_to_Canada
If there is serious consideration of trying for non-profit/charitable status, you might note that there is a new law that requires registration according to the Not-forProfit Corporation Act (no longer via Canada Corporation Act). I recently helped adapt old bylaws from a non-profit I’ve volunteered with for years.
http://www.ic.gc.ca/eic/site/cd-dgc.nsf/eng/h_cs04953.html
I’m good for $100.
I will contribute if there is a way to do so from outside Canada. Need bank details to make a deposit ….
From France and Switzerland, I too would like to contribute. Thanks to Blaze and IRSCompliant for getting this started.
Three small comments:
First, “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.” I also do not understand the reasoning of this statement. I would prefer that the lawyer give his reasons (publicly) for making this statement before he is hired.
Second, I would prefer that a non-US-based payment method be used.
Third, I would suggest that the term “lawful resident” also be part of the analysis/opinion. It has a wider application than “citizen” with potentially wider protections.
I too would add 1% ($170) to the pot from outside Canada and so would need bank info to wire the funds. Who is organizing a Treasury function to collect the donated funds?
@Blaze and IRSCompliant
a) Yes.
b) Yes.
Thanks, nervousinvestor. Blaze and IRSCompliantForever are working on a way for transactions to be made. Hold tight.
Count me in for $100. Wish it could be more. Thanks so much for your efforts.
osgood, there will be a way. Blaze and IRSCompliantForever are working on that. Thanks.
I’m in – at least $100.00
Re Confidentiality of report
Keep in mind that a legal opinion on this issue is unlikely to be a simple yes or no. There are going to be reasons for yes and reasons for no. We hope that the weight goes chiefly to the yes. But we want to be prepared for counter-arguments AND we don’t want to give them away to the government.
hieronymus,
Thank you so very much for your generous commitment. Further details to come — Blaze and IRSCompliantForever are working on it.
–Lord Jim, thanks for your thoughts from Europe.
The legal opinion will not be published because the lawyers tell us simply that you never provide your plan of attack, which details strengths, weaknesses, arguments, and analysis, to the enemy. This is why one lawyer used the term “warts and all” legal opinion which will not be, as Northern points out, just a “yes or no”. It is reasonable not to provide a road map to the opposition. We can assume government and banking officials follow discussions here. Posting the details would tell them exactly our position. They will certainly not post or publicize their position. Neither should we.
First, Blaze and I wanted to find out whether there was any enthusiasm in going forward with this proposal. As most of the responses are positive, GwEvil is now sorting out possible donation methods. Selecting the procedure is tricky because we want the donations to be made smoothly but at low cost.
–Chears, you are correct in part. We have not encountered a lawyer-expert that would do the research for free but do expect that some of the lawyers will provide pro bono help without publicity. Your comment on “opportunism” of Mr. Arvay is unfair. We approached Joe Arvay; he did not approach us. His cost, other lawyers tell us, is much lower than the actual cost of doing the research. He was selected because the consensus of the lawyers we spoke to was that he is the best to take this first step which all felt was necessary before initiating any class action lawsuit.
@calgary411
And thank’s to you and the other folks that are doing the heavy lifting! I just want to come out of this mess being able to say: “… see, the Charter works; I made the right decision coming here almost 50 years ago.”
H.
@IRSCompliantForever
I will contribute once a method for doing so is announced.
Assume we should NOT be attempting to send funds direct to Arvay at Farris law firm at this point.
I agree he is the best litigator for this.
Once things heat up, his profile should attract publicity and ideally more financial support.
This is win/win for both the plaintiffs and his firm.
While realize the details of his opinion must remain confidential, having him to release a press release if the matter moves forward is essential. It will get press coverage.
The key to this action is 500 to 2000 supporting contributions in the $250 to $500 range
To reach $250,000:
– 500 people x $500
– 1000 people x $250 each
– 2000 people at $125 each
Absolutely, hieronymus.
ALL in Canada should support our efforts as this is the litmus test to see if the Canadian Charter of Rights and Freedoms is a powerful document for ALL CANADIANS’ RIGHTS. It will assure you and me and many other US Persons in Canada that we made the correct decision in choosing to become Canadian citizens so long ago. I would hate to find out that the “Charter of RIGHTS and FREEDOMS” is all a political sham.