Do you have any suggestions for Mr. Arvay?
You know that with the donations Lynne Swanson and Stephen Kish have retained Joe Arvay to provide a legal opinion on the constitutionality of the proposed FATCA IGA legislation.
@George recently made the good suggestion we are now following up on:
Could you start a thread where Brockers could make comments or observations which you could then hand to the Attorney?
The purpose of this thread is to receive those comments you feel might be helpful to Joe Arvay. In my own experience with lawyers, suggestions from people who have been harmed have made the difference.
If you make your suggestions by March 11, Lynne will coordinate and synthesize them and forward them to Mr. Arvay.
Also, if you are uncomfortable in providing comments publicly, you can email me at email@example.com If you do, please don’t use your real name.
In a nutshell, I would have thought that filling out the W8-Ben would help protect a former US citizen (or former US person) from having their financial information continued to be reported to the IRS and FINCEN. I’d assume there will be a much higher likelihood of foreign accounts continuing to be mistakenly reported via CRA unless the W8 forms are submitted to one’s bank, credit union, insurance company, brokerage account, etc.
It doesn’t really concern me too much though because I would have thought that any hiccups could be fairly easily resolved with a few calls and/or letters to the IRS or FBAR people.
“It doesn’t really concern me too much though because I would have thought that any hiccups could be fairly easily resolved with a few calls and/or letters to the IRS or FBAR people.”
i certainly hope you were stating the above in jest. once you are in the system it will be/is far harder to ever get out……
My earlier comment “The opposition parties…. they are not necessarily friends. I think of them as sharks. Pure predators, circling until they sense blood in the water and political advantage.” may have been intemperate.
I meant to paint a picture: as a whole, the parties opposing the Conservatives must be opportunistic – or predatory – in pursuing the Harper government’s vulnerabilities on this issue. It’s our job to keep the opportunity front and centre in the opposition parties’ agendas, give them the tools to act, and to stress the size and potential influence of the constituency of Canadians affected.
I do believe that there are seriously committed individuals in the Greens, Liberals and NDP who personally and professionally oppose the FATCA IGA – especially MPs May, Hsu, Rankin, Cotler, Brison, Nash, etc. I appreciate their acts of support and also believe they are motivated by values and principles, not just political opportunity.
In the meantime, have you done anything less adolescent for you or your U.S. (I presume) family’s situation and this fight for US Persons having the same rights as any other Canadian?
Many are frustrated and angry, and I am no apologist for the betrayal that the FATCA collaborators in the federal government have perpetrated on Canadian citizens, taxpayers and voters, but past a certain point it is questionable whether your statements have any usefulness, or merely serve to derail this important thread.
At a certain point I might wonder what your true intent and end purpose here is.
@Beth Thomas, sorry, your comment is in pending for the moment until we hear back from comments editor.
Question – If Harper wakes up some morning and finds the IGA has been ruled unconstitutional, how easy or difficult would it be for him change the Charter to enact ‘legal’ discrimination? In other words, what are his options?
I don’t know if anyone else has asked this one already.
Legal discrimination. What a concept, but certainly what the Canadian wishes to attain through the FATCA IGA.
Likely Mr Arvay has reviewed Alison Christians article (which I find chilling,) quoted:
‘It (Treaty breach…. Breach in the form of treaty override), demonstrates that promises undertaken by the United States in its tax treaties are fundamentally weak as they are vulnerable to unilateral nullification by internal political whims. That should make everyone in the international community wary about making any deals with the US on tax, whether FATCA-related or not, since the government is demonstrating that it is willing and able to unilaterally change agreed upon terms in its own favour, at any time. There is no redress in law for a unilateral US treaty override. But that fact alone makes it imperative that the international community acknowledge that an override is currently occurring, and that such a breach will have important consequences for tax cooperation among countries going forward.’
Since ‘there is no redress in law for a unilateral US treaty override’– why call it an agreement, or treaty if it can be changed on a political whim?
If Canada ratifies the IGA, the US may take a page from Russia and just annex Canada, since we are almost cousins, we are an easy target, and no one will stop them.
@Don: Changing the Charter is a huge process. It is not like just changing a law.
Most amendments can be passed only if identical resolutions are adopted by the House of Commons, the Senate, and a two-thirds majority of the provincial legislative assemblies representing at least 50% of the national population.
So, this means Harper and his majority government cannot amend the constitution on their own. Say the words Meech Lake to any politician over the age of 40 and they will flee in the opposite direction from taking on that baby.
On the other hand, there is a provision in the Charter called notwithstanding in which the government can override the Charter by invoking not withstanding. It has never been used federally. Would Harper do it? I hope he won’t be in office by then so I hope we wont’ have to find out.
Despite that, I think we cannot be discouraged. If gays and lesbians had not launched a Charter challenge, we would not have had same sex marriage in Canada for 10 years. There have been many other constitutional cases that have forced a change to Canadian law.
A very controversial recent one was a Supreme Court ruling striking down Canada’s prostitution laws. We don’t know how Harper and McKay (Justice Minister) will respond, but it will likely be a hot topic before the next election in 2015.
Here are six big changes that have happened in Canada because of Charter challenges.
Please note, none of this is legal advice. It is simply what I have learned over the years from from reading various information. None of what I have commented is from a lawyer.
Can anything further be done to make more available and more transparent any opinions or reports or correspondence or communications that the Harper government and Minister Flaherty/Finance Department obtained from the Justice Department, or any other legal opinion as to the constitutionality of the FATCA IGA?
Can they be required to turn over that information for public consideration, or to Mr. Arvay in order to inform his legal opinion? The FOI information that Blaze requested was heavily redacted. There was evasive weasel wording as to whether ANY opinion/comment had been requested/received by the federal government of the Justice Department and even whether such an opinion existed. The weasel wording cited attorney/client privilege IF such an opinion or other similar information existed;
““If relevant information to this question exists, it would be subject to solicitor client privilege; therefore the Department of Justice cannot provide a response (four times on page 124) ” – from http://maplesandbox.ca/2014/finallly-a-response-but-few-answers-to-ted-hsu-questions/comment-page-1/#comment-11872 and also http://maplesandbox.ca/2014/finance-canada-244-pages-access-to-information/comment-page-1/ ). See also the non-answers received by MP Hsu from the Harper government ( http://maplesandbox.ca/2014/finallly-a-response-but-few-answers-to-ted-hsu-questions/comment-page-1/ ) and the non-answers received by MP Brison (see links from http://taxpol.blogspot.ca/2014/01/canadian-government-responds-to-fatca.html ).” http://isaacbrocksociety.ca/2014/03/05/elizabeth-may-challenges-iga-constitutionality-during-question-period/comment-page-3/#comment-1189000
It beggars belief that the Harper government wouldn’t have sought such an opinion as to the legality/constitutionality/Charter conflicts of signing and implementing a FATCA IGA in Canada, and they must also have discussed that aspect of FATCA with the US ‘negotiators’.
And what opinions/communications has the Harper government had with the Privacy Commissioner re the FATCA IGA?
(This is going to be significant not only for the FATCA IGA, but later, for the OECD ‘common reporting’ system (GATCA). See this recent report – co-authored by the Ontario Privacy Commissioner Cavoukian:
“…leaving it up
to companies and governments to determine the acceptable secondary uses of personal data is a
flawed proposition, that will no doubt lead to greater privacy infractions. If the history of privacy
has taught us anything, it is that an individual’s loss of control over their personal data leads to
greater privacy abuses, not fewer. Inadequate restraints and a paternalistic approach could lead
to what privacy advocates fear most — ubiquitous mass surveillance, facilitated by extensive and
detailed profiling, sharpened information asymmetries and power imbalances, ultimately leading
to various forms of discrimination, old and new….”…….. http://www.ipc.on.ca/images/Resources/pbd-privacy_paternalism.pdf ‘The Unintended Consequences
of Privacy Paternalism’ March 5, 2014 )
LOL – we had better be careful nobody repeats the bit about there being a million Americans in Canada too loudly. Obama will roll across the border to annex Canada in order to “protect” them – heck, there are only a few hundred thousand Russians in Crimea!
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Didn’t the feds give Peter Hogg $10K to conduct a study of sorts not too long ago?
@Bubblebustin’ I’m not aware the feds gave Peter Hogg $10,000 for a study. They gave Queens University Professor Art Cockfield $10,000 for a study on FATCA. I believe the funding came from the Privacy Commissioner. I don’t know if the study has been completed or what his findings were.
Professor Cockfield will be a speaker at the CCLA privacy conference being held later this month in Toronto. Some Brockers/Sandboxers are planning to attend.
Yes, via the Privacy Commissioner of Canada:
“Organization: Queen’s University, Faculty of Law
Funding Amount: $10,000
Project Title: The Privacy Implications of the Foreign Account Tax Compliance Act (FATCA)
Project Leader: Arthur Cockfield
Project Description: The project will review the privacy implications of the U.S. Foreign Account Tax Compliance Act (FATCA) in light of Canada’s Personal Information Protection and Electronic Documents Act. Specifically, the project will review implications on Canadian privacy rights and interests of any new agreement negotiated between Canada and the United States to implement FATCA. The project will also examine the interplay of FATCA with other Canadian laws that protect taxpayer privacy such as the Income Tax Act, the Canada-United States Tax Convention Act and the North American Free Trade Agreement (NAFTA). Finally, the project will review how Canadian banks are trying to comply with all relevant laws, and whether these banks are adopting new information technology systems to help them identify, sort, and transfer financial information to U.S. tax authorities.”
Noter the broad scope – theoretically also: “The project will also examine the interplay of FATCA with other Canadian laws that protect taxpayer privacy such as the Income Tax Act, the Canada-United States Tax Convention Act and the North American Free Trade Agreement (NAFTA).”
So where is the report available on Prof. Cockfield’s results re Privacy and FATCA? I don’t see it on the Privacy Commissioner’s website or on his http://arthurcockfield.com/publications/papers-and-chapters/ .
Is it going to take a Freedom of Information request to obtain it?
That was the Canadian Privacy Commissioner and Prof. Arthur Cockfield:
Badger beat me to it while I messed around with blockquotes. 🙂
I wasn’t clear – Yes the Privacy Commissioner gave a grant to study the Privacy (and other) implications of FATCA, but as Blaze says, it was to Arthur Cockfield, not Peter Hogg (so far as I can see).
@Em, I still haven’t mastered any of that fancy stuff unfortunately – including making my own threads as an author.
Consider emailing the Privacy Commissioner for a copy of the results of the report commissioned by them – and conducted by Arthur Cockfield.
Here is the email address: firstname.lastname@example.org
and the name of the project to request:
‘Project Title: The Privacy Implications of the Foreign Account Tax Compliance Act (FATCA)’
Project Leader: Arthur Cockfield
Here are the instructions for requesting a copy of their publications:
‘OPC Publication Requests’
“Please note that all our publications are available in eletronic format on our web site. However, if you would like to obtain a paper copy of a particular publication, please send and email to email@example.com clearly indicating which document you would like to obtain, as well as your name and postal address. ”
I don’t see why they can’t send an electronic copy or a link to one rather than a paper copy by snail mail.
If any of you are planning to attend the March 21 AND 22 event co-sponsored by the Canadian Civil Liberties Association in Toronto http://ccla.org/pathways2privacy/ at which Arthur Cockfield is planning to present in the afternoon of the second day at 3:15-4:30: Panel 4: Privacy and Financial Information – (March 21, 2014 | 8:30 am – 5:00 pm)
Pathways to Privacy Symposium: Helping Canadians Find Pathways to Privacy
The Faculty Club, University of Toronto
41 Willcocks Street, Toronto ON based in whole or in part on the research funded by the OPC. It might be helpful to try to obtain any related publication from the OPC in advance – electronically, and therefore be well versed in order to ask pertinent and tightly honed questions from the audience if that is allowed.
Thanks for the correction, everyone. It will be interesting to hear what Mr. Cockfield says about the study at the CCLA meeting at the end of the month (if the results aren’t private).
Anyone can register to attend the CCLA Pathways to Privacy symposium March 20 and 21 and Prof Cockfield is speaking as part of a panel on Privacy and Financial Information at 3:15 March 21
In addition to sections 8 & 15 of the Charter, I think that FATCA also violates section 7:
“Everyone has the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice”
I’m sure that all of us who are affected by FATCA feel that our security of person has been violated. I don’t see how the Harper government could argue that FATCA is in accordance with the principles of fundamental justice. Quite the opposite!
I’m confident that Mr. Arvay has already considered this but please confirm it with him. Thanks.
A note here so we remember to do this:
Two of our U.S. colleagues just suggested that we remind Mr. Arvay of the UN Declaration of Human Rights.
We will pass this information on to Mr. Arvay.