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.”
Petros:
“One question I have is whether Arvay might render an opinion contrary to our expectations”
Precisely, and like I said down thread, Joe already has an opinion. I want to hear his opinion BEFORE I would donate. We know John’s opinion as a fearless active fighting lawyer and know he is 100% on our side. I’m sorry but until Joe assures us he is on our side I say forget him. Also lawyers are corruptible as we all know. We imagined Hogg was on our side and now find out he apparently doesn’t want anything to do with defending our Charter of Rights in this regard. Wow, what a patriot NOT
I will make a deal with everyone here. If John ever betrays us I will leave here and the country forever. A Jewish Romanian friend of mine told me 2 years ago that N America is a prison and that living here is dangerous and a liability and that people should flee in the manner of the Jews in pre-Hitler Europe.
Do comments that one tries to post sometimes get lost? I thought I posted earlier this afternoon with (what I thought was) an interesting approach to funding. But it doesn’t seem to be here…..
@LM, if there is a lawsuit against the government for violating the charter and they loose, why not seek legal fees reimbursement. After all, if they loose, they brought the lawsuit because of their action.
@Chears
Peter Hogg is 74 years old. I don’t think anyone here ever imagined that he was going to take on the case. He wrote a letter to the Standing Committee on Finance when this was being discussed. At no time do I recall him saying he intended to take on the case, so IMHO, there is no betrayal here. Each person has a part to play and I personally, am grateful that he did what he did and allowed that letter to be circulated (at a time when we were completely kept in the dark by the government as to what was being considered).
Avray was a partner with Murray Rankin, who is clearly “on our side.”
Please see this article for an outstanding description of who Joe Avray is:
http://thewalrus.ca/civil-warrior/
“Avray was a partner with Murray Rankin, who is clearly “on our side.” ”
Oh.
@LM
This afternoon, some posts disppeared for reasons which are not yet clear. Generally, speaking, no, comments do not get lost.
LM,
It looks like a bunch of comments were lost (including mine and a post by Petros) in problems with the WordPress server. Petros is looking into this. Sorry for anyone’s good comments that were lost. This has never happened before — perhaps one or two comments here and there are somehow lost, but not a whole time period of comments. You may also experience from time to time messages that you can’t get through because of resources over the limit, a seeming problem now that we are getting more and more people coming to the site.
Tricia,
Thanks for providing this background on Joe Avray, pointing out past partnership with NDP MP Murray Rankin so that people here can see why he was consulted. John Richardson, too, suppots that choice I believe.
@Chears Big Ears
Where would you go?
@calgary
I am wondering if it may be hard to convey to those who have not been here from the beginning, that there are probably many, many comments, buried in many posts where we all came to the conclusion a long time ago, that Joe Avray would likely be our best choice.
I am also pretty sure that John Richardson also supports that choice.
A few comments:
A “legal opinion” is not a personal opinion. It is an exploration of the feasibility of an action being successful in court and also the core of strategy for making a successful argument. It may include a collection of legal precedents: previous judgements that either support a position or indicate that it may not stand. The Peter Hogg “letter” was a good start.
Joe Arvay has demonstrated a long-standing commitment to champion essential human rights causes, even when they are unpopular. And he has a track record of success. He was involved in one of the first Chapter 15 Charter cases involving “citizenship” and equality rights. Also the InSite Safe Injection controversy, which made “exposure to harm” a Charter issue. His argument in Egan vs Canada was a landmark gay rights Charter case. He is the right lawyer for this kind of high-profile action.
Finally: get real about the costs of legal actions. The FATCA IGA is an attack upon the core sovereign equality rights of Canadians based upon their place of birth or genealogy. It does so in acquiescence to a foreign state’s demands, based upon coercive financial threats with no reciprocal benefit.
This is not a charity bake sale; it’s an action that can be compared to the Civil Rights movement for racial equality. The individuals in that struggle risked their fortunes, their personal safety, their very lives in some instances. What are our rights worth to defend? The cost of a nice dinner out is $100. A weekend skiing and partying at a Canadian resort can cost $500. A week at a bargain all-inclusive Cuban resort: $1,200.
@ Wondering
I agree with everything you wrote. This is get serious time and getting this legal opinion is well worth an investment from me. It’s the first step in making things right, as I see it. However, I’ve never had a $100 dollar dinner, a $500 ski weekend or a $1200 Cuban resort week so my $500 pledge is almost all of my monthly CPP/OAS cheque and I can’t think of a better way to use it. We live very frugally and we can manage without many things but we cannot manage without taking a shot at seeing justice prevail. If the Canadian government can blithely write off 1 million of us, it will eventually find some way to do something equally devastating to the other 29 million. We have to attempt to apply the brakes to this government and we have to do it now.
@LM, four hours or so of the blog was lost yesterday, probably because ISP server went down. Our blog was replaced from a backup of the server.
I strongly agree with both Wondering and Em.
@ Wondering
Amazingly well said and I agree 100%.
Wondering and EM,
Thank you for saying this so well.
Hello Canadian Freedom Fighters! (and our allies around the globe)
IRS Compliant, Blaze and I have been working frantically over the past few days to get something ready for all of you who are eager to contribute to the Charter Challenge Fund and here is what we have almost ready:
1. A bank account established with a PO box for those of you who want to mail cheques
2. An email account which has been tested for email transfers and has passed the test!
3. A PayPal account that has been tested for those who do not have a PayPal account allowing people to donate with credit cards and THAT has also passed the test. Obviously, for those of you with PayPal accounts, you know what to do!
4. I am working on a draft website for the purpose of spreading the word about this Charter challenge and a one stop shop for donations.
We will be posting something here as soon as possible and hope to have everything finalized by the end of the week.
Thanks!
GwEvil
GwEvil is amazing and has been able to figure this all out.
I have seen the draft website which continually is being revised and it looks great.
The acronym for the fund will be CCCF.
This was unintentional but CCCF is close to CCF, the Canadian political party led by Tommy Douglas that was a forerunner of the NDP. Tommy Douglas is my hero because he was the only politician to defend the liberty of Canadians by opposing the government’s War Measures Act. He never would have agreed to help the U.S force FATCA on us.
We are still on track to finish this up by the end of the week. I know that it all sounds so simple but it is really complicated.
congrats to GwEvi and all those that have been involved far longer than I.
i know how much detailed work goes into setting something like this up.
lets hope we are sucessful in changing history in canada!!!
Thanks – feel free to use my comments in any way that helps.
I am awed by your efforts on everyone’s behalf.
Will make a contribution within one week of the donation info posting.
BTW – for some reason I can’t post to MapleSandbox anymore – there is a spam filter that blocks postings. This may be happening to others as well.
Ok folks, here is my replacement offering from yesterday’s (that got lost in the nether-world):
In regard to this “getting personal support & funding for the legal-challenge” effort, I have been spending a chunk of my last sunny-Florida-snowbird days educating myself about our “best/brightest/famous” fellow American emigrants to Canada via trolling the links from
http://en.wikipedia.org/wiki/Category:American_emigrants_to_Canada.
I figured that maybe, just MAYBE, there would be some people mentioned there that IBS/MapleSandbox/IRSCompliantForever should connect with. WOW, what a wealth of opportunities (and I’ve only gotten to the “M”s).
Dismissing the folks who returned to live in the US full-time, the murderers & historical figures (tho keeping notes on fellow duals who died recently enough to consider if so-and-so had children who would now be aiive & ‘FATCA-punished”, there are some amazing individuals – – politicians, writers, musicians & other artists, sports stars & managers, lawyers & rights activists, high-level business folk & financiers, actors, academics, scientists. Lots of Order Of Canada members!
Don’t you think some of them might be willing to support us if they were properly introduced to us and this vital issue? Now, perhaps they already have some knowledge of FATCA – – and could even be one of our IBS commenters! But perhaps not….
I’m listing by name, place of US birth, where they live now, and details of their major occupations/involvements. I’m prepared to share this info with others who are seriously invested in this effort & are serious about making a seriously well-informed articulate personal approach to some of these famous (potentially well-heeled but almost certainly well-connected) fellow-duals.
Anyone interested in becoming non-anonomous for the cause, a more-direct respectfully-educating/requesting spokesperson in the fund-raising effort?
On a humorous side-note, one of the now-deceased fellow American-became-Canadians listed was a woman who, in 2012 was the oldest validated living person in Canada (113 yrs, 24 days – – she came to Cda at age 12 or 13). I immediately wondered whether her heirs & executor were instantly hounded by the IRS to file US Estate Tax forms????? 😉
Quick question – – where on IBS or other related site can a US Green-card holder now living full-time back in Canada get more detailed info on how FATCA is going to hit them starting July 2014. Most of the articles and comments focus on US emigrants & accidental-Americans. The FATCA punishment/consequences may be the same, but are there any different issues for those who got a Green-card in the past? We should be making these folks aware too!
Wondering, Em, Tricia – thanks for the relevant comments regarding the importance of this effort and the lawyer chosen. I am fighting for the unencumbered life of my adult son who cannot in any way either understand how or spend the money year after year after year to hire professionals to be able to comply with this, let alone the fact that he cannot renounce and I don’t have the RIGHT to help him do that. In fact, I could not do that and it is the reason I now have my CLN.
I am contributing to this effort to get sanity and some normalcy back into our lives. Really, we cannot go on like this and contribute to our societies in other ways as any other ‘normal’ citizen is able to do. I resent that has been taken away from me. I have said it before and say it again – the JOY has gone out of my life. It has just taken too much effort and too much of seeing my values as a human being dashed.
If someone wants to stay a US citizen for whatever reason, they now know what is expected of them. They can go through all the yearly hoops to pay tribute to the homeland.
For the rest of us who have done nothing wrong (except be ignorant of US citizenship-based taxation — and I will never swallow all the blame for that), we have to be released one way or the other. On top of the anomaly of US citizenship-based taxation that our own governments now define us as second-class citizens without the rights of any other no matter their or their parent’s national origin, all I value says I have to continue to stand up for myself, my son and every other US Person in Canada — in fact for every other Canadian who could have similar rights taken away.
To Blaze, IRSCompliantForever and GwEvil, I know how hard you are working behind the scenes. Thank you for all of that. This couldn’t happen without what you are doing on behalf of every person here.
To John Richardson for all those who are organizing information sessions, thank you for your generosity in time and your own resources. I hope that people WILL take the important opportunity that comes their way to make your sessions a priority to attend, learn and be part of a concerted effort for this. Not many of us can go it alone — and there just IS strength in numbers.
Personally, I hope we can stay on track and focused for this fight and our conversation on this Isaac Brock forum to discuss the issues of United States citizenship, extra-territorial taxation, FBAR, and FATCA.
LM,
For one thing, it is addressed in the Canadian IGA. From my previous comment:
@ calgary411
Just wondering because I know of two youngish happily-naive friends who did go to work in the US for a few years – – and had Green-cards – – if they never plan to return to the US should they be advised of a specific way to officially renounce/relinquish this green-card (not just stick it in a drawer or in the trash) so that they canl be totally free of possible future IRS scrutiny?