The following is cross-posted from Maple Sandbox, original post by Blaze:
Anne Frank over at Brock made a brilliant but simple suggestion on Friday for a proposed amendment to the enabling act for the IGA. Anne said:
Canada COULD unilaterally amend the IGA via the implementation treaty with a simple “notwithstanding” clause to the effect of “Notwithstanding any other provision of this Act or the IGA, no Canadian citizen resident in Canada or other permanent resident of Canada shall be considered to be a “US Person” for purposes of the Act or the IGA”. The IGA would be unamended – the implementation Act would simply gut it of its Charter-violating aspect…
The Act is amended by inserting after subsection 4(1) thereof the following:
“section 4 (1.1) Notwithstanding any other provision of this Act or the Agreement, for all purposes related to the implemenation of this Act and the Agreement, “US Person” and “Specified US Person” shall not include any person who is a Canadian citizen or is a landed immigrant ordinarily resident in Canada.”
That simple amendment, made to the implementing Act, would put the ball right back in Treasury’s court. They can deem all Canadian financial institutions non-compliant and bring their own financial house of cards down about their own heads (as withholding, while possibly lawful in the US, will not excuse the withholder in any other jurisdiction, including Canada). It would take a positive act on the part of Treasury to blacklist the entire country. They would not be able to point to 10 cents of revenue that they would be seeking to protect in so doing. Further, as pointed out above, Canada would have more than enough fodder to retaliate in kind given the far larger magnitude of US investments in Canada (most of which, unlike bank accounts, can’t be moved overnight). All they would have to do is pretend that the IGA is compliant and drive on. It would be a brilliant move by the Government were they to allow themselves to be backed into it due to a serious Charter Challenge.
BLAZE ADDS: I ran that idea by a few people and have learned that amendment would be best in the enabling law and not in the IGA because the enabling act can be amended in Parliament, but an IGA amendment would require Finance Canada to submit the revisions to US Treasury for approval.
So, Friday night I sent this e-mail to NDP Finance Critic Nathan Cullen and Liberal Finance and Revenue Critic Scott Brison who are vice-chairs of the Finance Committee with copies to Finance Committee members Murray Rankin (NDP) and Guy Caron (Liberal). I also sent a copy to Elizabeth May.
Thank you Mr. Cullen and Mr. Brison for your position and that of your NDP, Liberal and Green colleagues on FATCA in the House of Commons.
The Harper Cons and Finance Canada have been consistent in their unwillingness to listen to Canadians on this and many other issues.
I am writing to you as vice-chairs of the Finance Committee to suggest an amendment to the enabling legislation and/or IGA and to ask if you and/or your party would consider supporting Canadians on a possible constitutional challenge.
Here is a suggested amendment to the FATCA enabling legislation and/or the IGA.
“Notwithstanding any other provision of this Act or the Agreement, for all purposes related to the implementation of this Act and the Agreement, “US Person” and “Specified US Person” shall not include any person who is a Canadian citizen or legal permanent resident who is ordinarily resident in Canada.”
With a Conservative majority on the Finance Committee and in the House, I realize this amendment would be likely to fail. However, it may force Conservatives into voting against it, showing they clearly will not stand up for Canadian citizens and residents who were born in the United States.
POSSIBLE CONSTITUTIONAL CHALLENGE
You raised the Charter issue in the House. For your information, Dr. Stephen Kish and I have retained Joseph Arvay for a legal opinion on this. We were able to do this because we raised the money for this legal opinion in just six days from Canadians and people around the world.
If the Charter challenge proceeds further, we expect we will be able to raise the funds for that. Would you and/or your party consider supporting us in this?
Attached is a copy of a news release issued on March 10 regarding this.
Again, thank you for your efforts on this affront to Canadian citizens, residents, laws, rights and sovereignty.
SCHUBERT’S COMMENT, POSTED ON SANDBOX:
I sent a similar email to Nathan Cullen the same day that Blaze sent her email (in fact, we consulted briefly on this by private email), giving some further arguments for the political advantages of forcing the Conservatives to vote on the proposed amendment.
The next day as it happens I received a recorded voice-mail robo-message at home from Tom Mulcair (Leader of the NDP and of the Opposition in the House of Commons), reminding me he was giving a speech Sunday morning April 6 in downtown Ottawa to kick off the NDP’s 2015 election campaign, inviting me and my wife to attend that speech. The venue is an easy walk from our home.
I decided it was important to reinforce the emails with some personal contact, taking advantage of the meeting and hoping that Cullen might be in attendance (he wasn’t, as it happens). So I printed copies both of my email and Blaze’s and stapled the copies together.
I attended the speech. Immediately prior to the speech, I had a brief opportunity (which I took) to introduce myself to Mulcair (who was waiting for an elevator next to me) and to hand him a copy of the emails. I said I’d hoped to give the emails to Cullen, but he wasn’t there, and giving them to the Leader of the Opposition was so much the better. Mulcair smiled, accepted the pages, and said his caucus had repeatedly raised FATCA and the IGA problems in the House earlier that week. I said I knew that, and thanked him profusely for the NDP’s support on this. He gave me two thumbs up and disappeared into the elevator, 20 minutes or so before giving his speech.
After the speech, I saw my MP Paul Dewar (NDP Foreign Affairs Critic) at the back of the audience. I spoke briefly with him, confirmed with him that Cullen is the NDP’s “point person” on the omnibus budget bill and related matters including FATCA, and gave Dewar my backup copy of the emails. Dewar told me he would deliver the printouts to Cullen himself.
So that’s two independent and very senior by-hand routings of the draft amendment to Cullen, in addition to his email inbasket which may or may not get a lot of attention in the next few days. I think we can reasonably assume those in the NDP who need to, will read the draft amendment and the rationale for it. What they do with this is, of course, up to them and their strategy and priorities under the tight time deadlines the Conservatives are imposing on Parliament for debating and voting on this complex and fundamentally anti-democratic omnibus “budget bill” (which isn’t a true budget bill, but an abomination and an abuse both of the budget and of parliamentary procedure).
Thanks to “Anne Frank” for suggesting the draft amendment in a post a few days ago. Once again, we’ve all shown how we Canadians can support each other in this battle, on short notice.