Stephen Kish and Lynne Swanson have reviewed the legal opinion provided by constitutional lawyer Mr. Joseph Arvay on the constitutionality of the pending legislation “Canada-United States Enhanced Tax Information Exchange Agreement Implementation Act”. This act is aimed at implementing the “Intergovernmental Agreement” (IGA) designed to make the “Foreign Account Tax Compliant Act” (FATCA) operative in Canada.
The opinion has also been discussed with Mr. John Richardson, a Toronto lawyer, with whom we now have solicitor-client privilege, and who will be part of Dr. Kish’s and Ms. Swanson’s “litigation committee”.
The lengthy opinion provides in detail the pros and cons of the arguments, and possible outcomes.
There are good arguments that the proposed legislation infringes at a minimum on constitutionally protected rights and freedoms. Nevertheless, there are also arguments that the Government of Canada may employ to counter our position and, we emphasize, there is no certainty that litigation will be successful. Further, any litigation will be hard fought and very expensive. This litigation is not for the faint of heart.
Given the opinion of Mr. Arvay and discussion with Mr. Richardson, we advise that it is our intention to take all necessary steps to commence litigation against the Government of Canada once the IGA implementation legislation is enacted. Moreover, the nature and impact of the unprecedented legislation on all persons in Canada and those throughout the world who will be impacted by FATCA demands that we exercise this option that is in the public interest.
Very significant fundraising will be required.
Stephen Kish
Lynne Swanson
Well done, thanks!
How about challenging the 1995 US Canada tax treaty which allow collection of US taxes from Canadian resident it officially recognizes US CBT in Canada but CRA will not collect. It depend on courts to continue to recognize revenue rule.
Please note in this revenue rule case decided by the Supreme Court the person appeared to be a Canadian Resident instead of citizen, The CRA would have collected in that case.
“Supreme Court of Canada
United States of America v. Harden, [1963] S.C.R. 366
Date: 1963-10-02”
http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/7322/index.do
Under FATCA all the IRS can do is send you nasty letter, unless they use the 1995 US Canadian Tax treaty for people who were not Canadian citizens at the time the tax was owed.
At the bare minimum this legal action needs to result in ‘carving out’ landed immigrants and Canadian citizens. Let’s hope it’s successful. At least the US won’t be able to enforce CBT.
YAHOO….made my day. I’m sharpening up my fund raising skills and ready to GO!
Thank you all so very much.
Let us know when and how the fundraising is to begin.
I think the summation of this opinion is pretty much what everyone expected. Arguments for and against. The Canadian Government will use everything they can to keep FATCA protected instead of doing as they should have done to protect citizens. This makes this litigation necessary regardless of how hard the battle. It will be on record as being a challenge to the rights of Canadian citizens. It would be interesting to see what Mr. Arvay’s arguments for and against were.
Time to start fund raising I suppose and get the ball rolling. A long slog is ahead. How exciting to be on record as having opposed these violations of Canadian rights!
What a great start to my day! Wonderful News. Thank you Lynn, Stephen and all.
Since rulings can be used as precedents, by acting against the best interests of Canadian citizens and residents, and the whole of Canadian society, this has implications far far beyond US extraterritorial taxation and the FATCA IGA.
How far would the Harper Canadian government like to go in defending the creation of different tiers and classes of Canadians on Canadian soil, and subsequent discrimination against them – at the extraterritorial behest of foreign nations (ex. the US), and based entirely on the historical vagaries and caprices of the immigration and citizenship laws of foreign nations – which Canada does not and cannot ever expect to control?
Is that a policy that the Harper government wants to fight for in a messy public battle? Does the Conservative party want to go down in history defending the extraterritorial ‘right’ of a foreign nation to assert absolute and automatic control over the personal data and legal local ‘Made-in-Canada’ savings of Canadian resident and citizen families? Does the Harper government want to go down in the history books for burdening ALL Canadian taxpayers and accountholders with paying for the implementation of an extraterritorial foreign law?
Even if the challenge were to lose, and the Harper government won, I doubt that this is a PR battle that they can win. Starting with the FATCA implementation day of CANADA DAY, July the 1st!!!!
The Harper government and the Conservative party will go down in the books as the party that gave away the Charter and Constitutional rights of some Canadian citizens and residents, and let the US steal the Made-in-Canada savings of Canadian families through extortion.
Interesting hill for them to choose to make a historic stand on.
Prayer has been answered and prayer must go on.
Stephen and Lynn, Thank You.
Support will follow as soon as you provide an address.
Great news for those of us in the rest of the world!!!!! Thanks
We Brockers are the tip of the spear for the rest of the world.
May Canada be Obama’s Stalingrad.
We’re all behind you, Canadians, especially with yesterday’s announcement here in Brussels that Belgium is now the latest scalp in Washington’s collection: it will be signing an IGA on 23 April.
As noted, this will be a long and very expensive battle. In posting information on where to make contributions, please also indicate whether there are any restrictions as to who may participate, and in the event (probably, given their extreme nastiness in other court challenges recently) the “Harper government” asks for court and legal costs if they win and we lose, there should be information as to who is going to be responsible for or share in that liability.
Set up the fund. I’m ready. Thank you for this good but cautious news. This is the first time in my life I wish I were a fatcat because if I were you’d have all the funding in a heartbeat. The harder the Harper government tries to protect FATCA, the more it will be exposed for actually protecting the USA. Canadians and the world will be asking why is this government fighting so hard to make US legislation its own?
I wonder if there is any angle that companies such as Moody’s would be inspired to contribute?
While I think there is a basis to attack the 1995 tax treaty provision waiving the “revenue rule” as regards permanent residents, I don’t think this Charter challenge is the place to do it. A focused attack will have the best chances of success. A strong precedent established here will doubtless place doubt on that particular provision in the 1995 treaty. I don’t know that anyone has ever tried to enforce it against Canadian residents to date and without FATCA, I don’t know where the IRS will get the ammunition to try.
There is an election in the near future. I hope this case reaches the news and is a platform for other candidates running for office. What a chance for somebody! Canada will know that Harper has sold out Canadians on the Constitution and this might be the beginning of the States governing Canada. It is not really that far fetched. Hats off to Arvay for taking this fight on and to the rest of us who will rally together to make this happen. Stephen and Lynn, we are sincerely grateful for all your help and ongoing support. May the other countries follow suit and stand up for their citizens. There is light at the end of this dark tunnel! Wow my faith is renewed!
Well…this 71-year-old Canadian American dual citizen has a smile on her face and a skip to her step.
I do not comment a lot, but I never miss the news on this wonderful site and I thank you all for your hard work. Oh, my, what a day! I am so proud to be a little part of this huge effort.
I shall scrape some more money together to support the litigation…just say where and when.
Right on!
I support this 100% and will be here every step of the way. “Sue the bastards”
Thank you Blaze & IRSCF for all your extraordinary efforts.
@Tuzenelda, wonderful to see a lurker comment. Welcome to the fight!
Is a press release going to be sent to all media, including Jon in Vancouver? I think Jon at CKNW will air it for, sure
I’m in for a nice chunk of my savings for I’d rather see it go to fighting the USA rather than supporting its wars of aggression and persecution of innocents around the globe.
I would like to know if a restraining order can be issued to stop the bill from being enabled before July 1st I don’t understand why the wait when Canadians are being harmed right now. I’m sure there are test cases out there right now.
Every arrow our taxpayer funded government shoots at us in this challenge will be a self inflicted wound. I can’t think of a better investment for my tax dollars!
This is WONDERFUL! You can count me in!!
Special thanks to Lynn and Dr.Kish!!