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.”
Contact Elizabeth May to set up the group to challenge.
Wondering,
Your assumption is correct, Joe Arvay’s office is NOT able to collect funds from multiple donors.
Yes, assuming that the legal opinion is positive, and we all decide to go forward, there will be a REALLY big PR splash on this.
I was just on the phone a few minutes ago with one donation organization, described what we want to do, and was asked: “Why would you care?” I explained.
Will the donations be anonymous or is there a chance that the names of the people who donated become public?
I think more people would donate if they knew that no one else would know they donated.
@ noone
A workaround to the anonymous question might be to find an absolutely, positively and trusted non-US person (at no risk therefore) who is sympathetic to your cause. Give him/her your donation (cash would be best) and ask he/she to write a cheque to the fund for the same amount (you could mail it yourself using his/her return address). Just a thought. Hope that isn’t too much twisted thinking on my part but I really do empathize with anyone who wants to remain anonymous.
@Wondering: As IRSCompliant said, Mr. Arvay’s firm is not able to accept multiple donations from multiple sources.
However, if someone wants to write a cheque for $17,000. please let me know and either you or we can get it to Mr. Arvay quickly. 🙂
.
Noone and Em,
Confidentiality of donation is a critical issue that we are now discussing.
We might be suggesting several donation vehicles with one providing a more “secure”donation.
But we also have been very seriously considering Em’s idea: If you believe that no web-based site can be absolutely confidential (there is a logic to this), then provide the donation to a friendly non-U.S friend who would donate.
“But we also have been very seriously considering Em’s idea: If you believe that no web-based site can be absolutely confidential (there is a logic to this), then provide the donation to a friendly non-U.S friend who would donate.”
Contact Elizabeth May she is already outed.
Once upon a time, there was a horde of virtual mice that wanted to put a bell around the neck of a facat. A few among the horde had become less than anonymouses, but most wanted to remain anonymouses. Lifting up the bell looked to be an onerous task, requiring the participation of many anonymouses. The less-than-anonymouses did not want to do this by themselves. Perhaps a more-than-nominal society, one with legal status, could construct a scaffold with winch, an apparatus that could lift up the bell and chain it to the facat? Could the society leverage itself by qualifying for the writeoffs dispensed by the selfsame dubious region that it sought to force into a condition of security? But first of all the bell had to be cast. Would enough of the anonymouses chip in with chunks of brass? How could a bit of alloy not be traced back to an anonymouse? Which of the less-than-anonymouses would be entrusted, no accounting possible, with amassing the pile of metal?
What could such a society have as legitimate purpose? Bits of brass? A tocsin instrument? The facat? Warning about the offleash roaming tendency of the facat? Constraint of the very owner of the facat?
Picking up on at least part of what I think USXCanada is alluding to, and for the record:
My offer to donate toward the cost of a legal opinion is NOT contingent upon my getting a tax deduction for that donation. The thought that a tax receipt would even be an option never entered my mind, and frankly I’d find it rather weird and pretty unlikely that any organization formed to collect money for that purpose would qualify for tax-exempt status for those donations. But then, there are all sorts of things about tax codes I have trouble understanding.
I think it would be a very sad commentary on something, if people affected by and outraged at the Charter violations inherent in the IGA wouldn’t donate even $100 without a tax receipt. And I can think of a lot more useful things for volunteer organizers to be spending time and energy on, than trying to figure out that angle. But then, I won’t be one of the organizers, so maybe that’s not for me to say.
Still, I can’t abstain from expressing a certain level dismay at that particular direction some of this discussion is taking. As individuals and as a society, have we sunk to the point where we don’t contribute to something we think is important, if we don’t get a tax receipt???
@Schubert,
I hope I’m not butting in and mixing things up but I don’t think that’s presenting a problem. I saw that Blaze wrote yesterday,
http://isaacbrocksociety.ca/2014/02/23/possible-charter-challenge-legal-opinion-needed-and-funds/comment-page-2/#comment-1139085
Never crossed my mind either, I could care less. Probably most couldn’t care less either because it’s so bloody important.
@USXCanada and @Schubert are right.
Two things need to happen quickly.
1. Could somebody simply specify where the money is to be sent or paypaled
2. Just pony up.
That’s that. Would either @Blaze or @IRSCompliant just post where the money is to go and that’s that. Every person who has read this already knows whether they are willing to contribute or not.
Deadline: Monday March 3/13 – 5:00 p.m.
John Richardson is the ONLY lawyer I’m going to donate to as he is doing an important work and has taken the initiative to speak up, hold seminars mostly out of his own pocket. Joe doesn’t and hasn’t and therefore I’m not donating anything to him as I don’t see any kind of commitment on his part.
Not to stir the pot, but I would add to ChearsBigEars’ point that John Richardson has experience in Charter Rights litigation. See: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/24/index.do
All,
A question has come up: How many of you already have a PayPal account that you use to pay for items?
Also, Joe Arvay may how to litigate with regard to Charter. However, no one in the world knows the US tax law’s impact on Canadians better than John Richardson. In order to determine if FATCA IGA will be a violation of the Charter, another place to start would be the actual real impact of the US laws and FATCA on real Canadians. I doubt that Arvay has a clue about this. When you listen to John Richardson at these seminars, you know, you absolutely knows that he understands and feels the impact.
@ ChearsBigEars
Donating to John Richardson is helping to get the word out and that’s good too. But to be fair, Joe Arvay has already provided a lot of free counselling to Blaze and IRSCompliantForever. We are in the “get serious” phase now and from what I have read in Joe Arvay’s bios, posted here and there, he is a good choice to do the digging and compiling and ultimately the opinionating on whether or not we should go forward. I’m more than willing to pay to get that done AND no tax deduction is needed for me either. Whatever way the collections are done is fine by me.
Sorry meant JOHN RICHARDSON
Hogg has deserted us as have all the so called defenders of our constitution. People read between the lines. If Joe really felt we would win he wouldn’t be asking for money BEFORE filing an action. Don’t be fooled, he already has a perfectly formed opinion as he has followed this very closely already. For this reason I’m out until I see some spontaneous action by him similar to the hard tireless time consuming action that John has been doing. Joe: Are you a patriot like John is or do you imagine that this is just another case irrelvant to the takeover of our very country.
As a whole the legal community in this country is a total JOKE.
@ IRSCompliantForever
No, I don’t do paypal.
@ Petros
John or Joe or a tag team of John and Joe?. I’ll leave that to others who know more about lawyering up than me to decide.
Blaze and IRSCompliant have taken this on. I trust them fully in their decisions. They clearly consulted around. I want the best legal advice available, not the cheapest. Should he wish to work with Mr. Richardson or any other lawyer or firm, that would be strictly his decision.
@ IRSCompliantForever
LM has Paypal
@NorthernShrike, Yet I think we can discuss this hopefully without ruffling feathers or hurting peoples feelings. I am personally not invested in Joe Arvay. I am personally acquainted with Blaze and IRSCompliant, and with John Richardson. I have sent a feeler out to John to see what he has to say about it. I am not sure whether it would better to have a lawyer who is successfully done Charter challenges in the past, or one who is far more familiar with the legal ramifications of the FATCA IGA. For me it would be toss up. Let’s see what John has to say.
I am able to pay through PayPal on my VISA. I could also do an e-transfer to someone like Blaze or that guy, IRSCompliantForever. I trust either of them implicitly.
@Petros
Wouldn’t the impact of the US laws and FATCA on real Canadians be an issue *after* the IGA has been found to violate the Charter? Perhaps to determine whether it’s a reasonable restriction or not? If so, then the primary focus should be on proving a Charter violation, and IMO the person to do that would be someone like Arvay who does this for a living. Given the terabytes that have been written by and about expats suffering at the US’ hands, proving impact should be the easy part, no?
FWIW, I talked to a lawyer acquaintance last night re Arvay, my LA said that Arvay is definitely a good person to have litigating a Charter case, one of the top Constitutional lawyers in BC.
Chears, Petros, and All,
John Richardson was the first lawyer we contacted and I just contacted him again as he sits now in the Vancouver airport.
John tells me:
“I was contacted to give general advice about the nature of a constitutional challenge in general and who would be suitable lawyers in particular and I had expressed that Joe Arvay and Peter Hogg, members of the constitutional law “bar” would be the natural choices and opportunities to pursue.
They have the back office resources to do the best possible job and in my view those desiring a charter of rights challenge will have no better representation.
In fact, Joe Arvay was counsel to the government of B.C. in the first case ever decided by the Supreme Court of Canada on Section 15 of the Charter of Rights (Andrews vs. Law Society of B.C.)”
Everyone — Blaze and I are suggesting to you only one proposal. It is your decision how we should proceed.