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.
“what will stop them to just raid what we own.. with electronic banking.. ”
what will stop them from stealing your gold? Maybe they can’t find it? !!!!
Why do I have to keep saying this? There is no other answer than to drop out of the electronic system as best as we can and go underground. GOLD IS NOT ILLEGAL.
@ChearsBigEars – I too am nervous about the the raiding of people’s assets. I remember a discussion with a self described Democratic Socialist a couple years ago – in his opinion and philosophy ALL money and assets are the property of the State (my comment – sometimes deliberately misstated as “The Masses” or “The People”). In his view YOU only hold some money or land or anything else temporarily … you do not OWN that ….. it does not belong to you and thus YOU have no right to remove that money or other asset from the State’s control or Treasury – thus if you emigrate, you have no right to take anything with you.
Second comment – It may presently be legal to hold Gold metal … it has not always been thus … not in the once great United States of America. The holding of Gold (and Silver for that matter) was once a US Federal Crime … less than 100 years ago … when Gold was said to have been priced at US$20 per ounce.
With every possible caution, see the image and summarized discussion at https://en.wikipedia.org/wiki/Executive_Order_6102
The United States Government seems to think (and backed by the Supreme Court at the time) that they have the power to take private property especially in times of emergency.
Can you spell Tyranny ? So although it may be wise to literally bury and hide small caches of physical gold or silver … that very act can be made illegal by the stroke of a pen … and to do so in bush country where it is less likely to be found or in historically standard hiding places like the foundations of your city home or under your fireplace … may well make it inaccessible to you when YOU need it.
Great letter, Mr. A.!
I spoke to the manager of a credit union yesterday (I live in a small town) and she didn’t know a thing about
FACTAFATCA . Never heard of it! In any case this credit union has well over 175M in assets. I will see my own bank manager at the end of this month and see if she is briefed on this FATCA law. It could be that the head office will just advise the CRA and then onward our info goes without informing the local banks. Not sure where this is going but I will post on what I find out for small towners. Has anyone discussed FATCA with their branch that could be shared on IBS? Thanks!
@Ann, remember if you ask the question then it may not be a good place for you to transact business, just saying.
The 175million is somewhat of a misnomer. The question is if the credit union is a Local Client Base entity.
1.) Are 98% of the accounts in Canada? Most likely they are 100%
2.) If you leave Canada, will they close the account? If yes, thats a good sign. 🙂
3.) Are they owned by some other trans national body? If yes, bad omen.
So if they heard about FATCA, next question would be “Do you qualify for the Local Client Base exemption?” Then ask the 98% and account closure question.
Ann, it seems questions to front-line people generally have produced this reaction. I wonder how many of them might be deemed ‘US Persons’? Surely the big banks should know — it is published on their web sites, examples: http://isaacbrocksociety.ca/2013/12/02/conspiracy-lawsuit-against-td-bank/comment-page-2/#comment-747933. It is amazing that so many of those who should know are as uneducated as our Members of Parliament on what FATCA is.
Its fine to own some gold but not to turn everything u own to gold. My elders in the family were from war torn areas who had to flee with whatever they can carry… u don’t have the time to dig up anything… just grab & head out… we still own some gold… but when the elders had to sell it… its not like they walk into a store to do it… it was all back alley… every day living… gold would be a pain… That is why we always spread our funds all over… so if something happen at once place… we can access funds elsewhere… which was taught to us as children.. Plus we don’t trust the gov’t… any of them
I agree with u… rules can change anytime… to hold all in one type of something can be bad.. I think there is a law in US & Canada that they can legally confiscate accounts… Also from the elders in my family… we hold different currencies so if we run into problems… we got an emergency back up… lost some in currency exchange… but we can ensure everyone will be housed & eat…
@Ann, when I asked people at a large branch of my Canadian bank about FATCA earlier this year — I think it was in February — they seemed not to have heard of it. (I was careful not to give them my name or bank card at the time, so they wouldn’t take the question as a “U.S. indicium”.) Also, the last time I checked, a few weeks ago, I couldn’t find anything about FATCA on the bank’s customer web site. I think it’s being left to the bank’s higher-ups, who, I’m sure, are now happy the Conservative Government is proposing to pass it on to the CRA to deal with.
@ANN – Credit Unions are by their charter owned by their members and local was always my understanding. In recent times they have merged, so you get big province wide credit unions. However, my understanding is that the members own them even still – just more members. I wouldn’t waste a lot of time asking questions of them, you are just putting them on the spot and making them think “maybe we need to do something”. As I have said numerous times, it is highly unlikely that any banking or similar institution has any reason to believe or suspect that a Canadian resident is a US Person. Passports are about the last piece of ID people use to open accounts with. A SIN number, a driver’s license or health card, maybe a property tax bill and that’s about it. Some people who have investment accounts with their banks/credit unions MAY have filed W-9 forms with the IRS (through their broker) if they were asked to (which would only happen if US $ trading account – again, not the usual thing). In short, unless you suspect that you may have told your financial institution something about your tainted now toxic past, I would strongly, strongly advise to let sleeping dogs lie. You can make your own mind up about filing CLN’s etc, but don’t stir up a hornet’s nest at your bank or credit union when you don’t have any reason to do so. If in doubt as to what you have told them, just quietly move the account before July 1 and be done with it. For 95% of people, that is about as intrusive as FATCA is ACTUALLY going to be in their lives. It is a rotten law, bad in every way BUT people need to get a bit of perspective and not lose quite so much sleep.
Just my two cents.
I keep imagining the staff FATCA orientation seminar where banks lay out their plan to prevent US persons from infiltrating their system. I haven’t a clue how the banks are going to encourage their staff to feel good that what they are doing.
I’d like to reinforce Anne Frank’s advice to Ann, in spades. All of it. Also my two cents.
Also, I’ll take this opportunity to express a pet peeve I have about a lot of threads. My purpose of posting the original thread, at Blaze’s request (and NOT at my own initiative), was for information of visitors to this site. The discussion has veered off-topic in several ways. This is probably inevitable with any website or thread on it, and no one (least of all me) wants to take the time and effort (never mind the heavy hand) to try to “censor” or direct discussion. But wandering all over the place makes it difficult to track discussions, to find discussions if you want or need to, and can be become off-putting to some casual and less-than-casual visitors to the website. (Not to mention possible visitors from MPs’ offices or other interested parties and the impression that might leave.) It also is one of numerous reasons why I am increasingly reluctant to post or get into discussions on this website, even on threads which I start (in this case, as a courtesy).
Just FYI and to reflect upon. Thanks.
@Ann Frank I agree completely. I just opened accounts in a CU and did not say a word about FATCA. I won’t say a word to my big bank either, just slowly move my assets out of there over time, no rush. I will renew my mortgage with a broker rather than the bank and get a LOC with someone else and bank at the CU from then on. The bank won’t know why I moved, but this sort of slow seeping will be noticed after a while, and they will put two and two together. As John Richardson says “if anyone at a bank or investment company accuses you of being a US person, you DENY it!”