Stephen Kish and Lynne Swanson today received a very lengthy and comprehensive legal opinion, from constitutional lawyer Joseph Arvay, on the constitutionality of Canada’s pending FATCA IGA legislation.
We are reviewing the document and will get back to you.
Stephen Kish
[Cross-posted at Maple Sandbox by Lynne Swanson]
Pingback: Legal Opinion on Canadian Constitutionality of FATCA IGA Legislation Received Saturday April 12, 2014 | Maple Sandbox
This is truly a nail biter. Thank you for the update.
On tenter hooks!
In suspenders!
This issue is of importance to ALL naturalized Canadians and non-citizen Canadian residents, no matter what their ethnic or national origin. If the rights of ANY Canadian citizen or resident under the Charter are violated by the IGA or enabling legislation, the rights of ALL Canadian citizens are at risk from the precedent being set. This goes far beyond so-called US persons resident in Canada and their spouses and families. I have made that point repeatedly to the federal party leaders and the MPs to whom I have written on this issue; it is important that we all keep hammering that point.
The Tories believe (there are arguments about whether this belief is valid or not) that one of the reasons they got a majority in the last election, is that they made substantial inroads among “new Canadians” at the expense especially of Liberals, who used to “own” that demographic. I think this government will be especially vulnerable among that demographic in the next election, if the IGA and enabling legislation are found in court to violate Charter rights, because of the precedent set for all “new Canadians,” but it will be vital that we all help to make that case with that demographic (if and when there is a court ruling to that effect).
This is an extremely important issue for all of Canada, not just for “US persons” and their families, resident here.
I think I’ve reloaded this page a dozen times already in anxious anticipation of Stephen’s and Lynne’s opinions of the opinion.
@schubert1975 I wish there was a thumbs up option below people’s comments because I would thumbs up yours right now!
@Em: Our opinion of the opinion won’t be speedy. It is very detailed and requires careful thought and review.
Gawd, I hope it’s not a maybe.
Just skip to the last page. 🙂
@ Blaze
I understand and will try to curb my reloading. I appreciate all you and Dr. Kish have put into this … including the thoughtful review.
Pass the time, gird your loins.
I appreciate the need you have for time to study this legal opinion. Whatever the outcome, sharing the conclusions will be tricky, and I for one understand that I may have to simply trust in the both of you to make the critical decision whether to go forward or to abandon the project.
Nail biter
congratulations Canada. You are lucky to have so many interested parties and such strong collected convictions.
Getting a legal opinion is a concrete step that no one else has done. Canada is now at the tip of the spear against Yank imperialism and human rights abuse. The rest of the world turns their lonely eyes to us.
@Schubert, absolutely correct. Anyone who is not a second or third generation native born Canadian is at risk. The precedent against all immigrants is astonsihing.
@All, why we must fight. People, I hate to be the bearer of bad tithings but for those of you that have a CLN, it is simply a piece of stinking paper. Under the IGA, the banks get to make the decision if they are going to report you. It does not matter if you stomp your feet and give them letters signed in blood.
In the Canada IGA, the Banks can report anything and anyone!!
From the IGA itself and pay careful attention to the word “unless.”
“Accounts Not Required to Be Reviewed, Identified, or Reported. Unless the Reporting Canadian Financial Institution elects otherwise”
What does that mean? A bank can review all accounts regardless of size and report them.
AND/OR
“If any of the U.S. indicia listed in subparagraph B(1) of this section are discovered in the electronic search, or if there is a change in circumstances that results in one or more U.S. indicia being associated with the account, then the Reporting Canadian Financial Institution must treat the account as a U.S. Reportable Account unless it elects to apply subparagraph B(4) of this section”
What does that mean? It means that a bank MUST report everyone who has a place of birth UNLESS it makes the election to do further due diligence and ask you for a CLN if you have one or a reasonable explanation.
It does not matter if you have a stinking piece of paper called a CLN!!
If you were born in the USA, that is a permanent tattoo!!
People, a CLN is not, repeat not, a Golden Ticket. At best, its gold paint on some recycled aluminum ticket.
Once a bank picks up a US place of birth, the Government of Canada has given the Banks unlimited ability to report you!!
It will not matter if you tell the banks you have a CLN. The decision for them to report is their decision, not yours, not even that of the CRA.
The language of the IGA is such that everyone is reported UNLESS the bank elects one of the clauses at ITS discretion!!
Guess what? After reading the IGA again and again, why do I want to bother getting a CLN? I can get that CLN, hand it to my bank and they can and will likely report me to the USA.
The ONLY reason I can see for a CLN is to vacation in the USA without a hassle.
Others have noted that the compliance industry is a major culprit in all this and those theives are going to tell the banksters to report, report, report.
TD, BMO, et all have no reason NOT to report everyone. The best thing for them to do is to report a customer with a US place of birth until the day they die. And they can do that within the law regardless of what paper they have.
They may report those with a CLN at their discretion but, with a CLN even if they do you are out of the U.S. system. I don’t like it that some will be reported even with the CLN but, there’s nothing much the U.S. can do to those who are not American.
I DO think this is going to get ugly. Bankers saying they don’t want to deal with this. It’ll be like the Stanford experiments. Normally kind people will assume criminality as that is their day to day job. They’ll have a sense of power from that and a sense of purpose. You’ll be automatically assumed to be a.) the cause of all this misery for having been A U.S. person and b.) Indeed treated like a second class citizen for banking purposes. YOU will get more scrutiny as a criminal would on all your accounts. Attitudes will change as resentment builds. You’ve been a good banking citizen all your life and had a past good relationship with them? That’s over. Doesn’t matter if you have never done a thing wrong and if they favoured you in the past.
This is such a burden for Canadian families with even one U.S. person in them. The U.S. is treating its expats in such a way that I can’t see why anyone would want to cling on to such now.
But yes, it bothers me they can willy nilly send banking data on anyone with no accountability as to who makes that decision and why they made it. I cannot see how this is at all in keeping with Canadian laws. Where’s the recourse if your information is sent and it wasn’t supposed to be?
And what kind of a nation makes it so that people need to be afraid of their own birth place!
I guess we’ll have to do illegal things to protect ourselves from the illegal activities of the banksters…..
I can’t sleep very well these days, so a spark of good news would be very welcome…
My refresh button is going to wear out!
@schubert, thank you for pointing out the wider significance of the Charter challenge. Charter challenges have implications as precedent for future rulings. In the short term, it has immediate relevance for ALL ‘new Canadians’. If the Government of Canada is going to create and defend different classes or tiers of treatment and rights based on the (US or other) birthplace/national origin of Canadian citizens, then NO new Canadians can be secure. There is either equality among Canadian citizens or there is not.
The same is true of Canadians born on Canadian soil. If the Harper government can agree to subject Canadian citizens born in Canada to the extraterritorial laws of a foreign government, based on foreign claims via the nationality of their parent/s (as per the caprices of US citizenship laws over time), then it creates special classes of Canadian natural born citizens. Those with US parents, and those without.
Even the Harperite threats to under some circumstances revoke (for whatever the reason) the Canadian citizenship of those who have naturalized, would result in creating different tiers of citizenship – where some are more ‘citizens’ than others. I don’t think Canada can afford to do that. Is it in the best interests of Canadian society to create, formalize and legislate unequal and distinct levels of citizenship – particularly if Canada has decided that it is also in the best interests of Canada to attract new Canadians? Is that the future that Harper and Conservatives want to defend?
Because that is what Harper has done by signing the IGA. He has accepted whatever definition of a ‘US citizen’ or person that the US chooses to promulgate – and the effects on the Canadians the US claims – for life unless otherwise freed. If he and the Finance Ministry and the CRA continue to assert that they ‘respect’ the ‘right’ of the US to make its own tax and other laws given the ‘peculiar institution’ that is US Citizenship/status-based taxation; then they are also accepting part and parcel of all the US citizenship, immigration, visa, and permanent residency laws – because they are inextricably bound up with the US tax laws. To accept US extraterritorial tax laws as legitimate is to accept all the others as legitimate – applied extraterritorially to Canadian citizens and residents. And by the way that includes draft laws as well. Will Canada institute an IGA to ‘respect’ the ‘right’ of the US to draft Canadian born males? And Canadian females too when the US military becomes inclusive? The terms of all of those US laws and their enforcement – re taxation, citizenship, immigration, the draft, movement (ex. passport control even on planes that merely cross over the US without land entry) are entirely under US control and Canada has not one jot of influence over them.
We have heard the Finance Minister and others in the Harper government assert ‘respect’ for US ‘right’ to make its own laws – no matter the effect on those living in Canada. WE HAVE NEVER heard the US assert that respect for Canadian laws and sovereignty, have we? And we NEVER will. That is the reality that the Harper government is supporting with the IGA (and other issues like the Beyond the Border projects http://www.thestar.com/news/canada/2013/07/30/us_wants_exemption_from_canadian_law_for_crossborder_officers_rcmp_memo_says.html ).
And, the FATCA IGA not only discriminates against naturalized Canadians-those with US national origin-by US birthplace, but it ALSO discriminates against NATURAL BORN Canadians. Those born in Canada of any other parentage OTHER than US, vs. those born in Canada of US parentage. And then there is the category of those born Canadian by virtue of their Canadian parentage, regardless of US birthplace (ex. border babies with Canadian mothers sent to give birth in US facilities when Canadian hospitals were full). Will the Harperites actually gain by creating, setting apart and defending several distinct classes of Canadian citizens?
Schubert and others are right. The significance and precedent set by the signing of the FATCA IGA goes far beyond US extraterritorial taxation. It opens the door for other countries – ANY other countries to start claiming Canadians from afar based on their birthplace or parentage. Canada may not be able to shelter duals from the laws of the other country IF they travel to that other country, but, since when does a sovereign country allow for a foreign power to reach into their jurisdiction and assert direct control over their citizens and residents?
And create new social policy in Canada thereby?