[JOHN RICHARDSON ASKS THAT EVERY PERSON READING THIS POST IMMEDIATELY LAUNCH YOUR SOCIAL MEDIA TOOLS AND SKILLS AND SEND TO ALL PEOPLES AND ALL POLITICIANS: THE MESSAGE IS TO DELAY THE FATCA HANDOVER.
ADCS HAS JUST PREPARED A PRESS RELEASE WITH SAME MESSAGE WHICH IT IS SENDING OUT AND WILL POST.]
Cross-posted from the ADCS blog
Calgary suggests that the title for this post should be:
“Amazingly, FATCA has just become an issue in this election! Thank you IRS! You have affected the election in Canada!”
GEORGE FRAMES THE ISSUE: “It will be interesting to see if CRA hands the information over early even though they could hold on to it now.
Personally, I think the CRA will hand the information over.
Assuming they hand it over, it will be an excellent election issue to bring up!!
Given this opportunity in light of a Constitutional Court Challenge, the Govt could have used it as an opportunity to soberly hold the data back because that is what good governance is.”
Let’s begin with the end:
My advice to you for the next few days …
Launch a massive a focused “social media” campaign (primarily Twitter
and Facebook) which is to convey two sets of messages:
- To individuals – The Government of Canada
is about to turn one million of your fellow Canadians over to
the IRS because Stevie Harper WANTS to!! Get them to pressure
the Government and the Candidates. - To Candidates and Political Parties – Those
who do NOT actively oppose the great FATCA turnover will NOT
winning the election!!
You have only a few days. As Ronald Reagan was fond of saying:
“When you can’t
make them see the light, make them feel the
heat.”
Move quickly!!
___________________________________________________________________________
Here is why …
Last night I wrote a quick post reporting that:
- The IRS has delayed FATCA implementation for another
year; - Governments with Model 1 IGAs (including Canada) are NOT
required to turn over the information they have collected by
September 30, 2015.
This means that the Government of Canada is NOT required under the IGA
to turn the tax information of (who knows how many?) hundreds of
thousands of Canadians over to the IRS. Although, they are NOT required
to send the account information of Canadian citizens to the IRS, the
question is:
Will they or won’t
they?
I recognize that this is my personal view
(well, that’s a blog post always is). My view is that that:
- The Government of Canada has
NOTHING to gain by turning the data over this week. There is
ZERO potential gain; and - Has a great deal that they could
lose by turning the information over this week.
My prediction that that the information will NOT be turned over. This
will provide “breathing space” for our Charter lawsuit, for
“individuals accused of being tainted with USness”, and even for the
United States to come to its senses (yes, it’s possible).
My reasons fall into three categories. The first reasons are political
and the second are legal. The third is simple: “It’s the right thing to
do.”
Political Reasons …
So, far the claim of the Harper Government has been: “They made
us do it.” “We had no choice.” “The banks wanted it”. All of
these claims are based on coercion. As of yesterday, it is very clear
that the Government is NOT required under the Model 1 IGA to “comply” by
September 30, 2015. They just aren’t. Let’s imagine that the CRA turns
the information over this week. Let’s say that someone asks:
Q. Whey did you turn the information over this week, when the “IRS” (I
have always maintained that the IGA turns Canada over to the IRS) said
that you didn’t have to.
A. The answer is NOT: “Because we were forced to.”
A. The only possible answer is: “Because we WANTED to.”
Think of it. Can the Government of Canada say (in the midst of an
election no less) that:
We gave the information of hundreds of thousands of Canadian
citizens to the IRS because we WANTED to!! That’s a bit rich
(even for a Government that is desperate to please the banks by obeying
the IRS).
And to turn the information over in the middle of an election
…
Now, you can see that this will become more improbable. Although, few
Canadians know about FATCA and few Canadians care about FATCA, this
could be a “big stick” in the hands of Mulcair (mainly), Elizabeth May
(presumptively) and Justin (who knows).
Never forget that:
Elizabeth May and the Green Party have an anti-FATCA platform.
Thomas Mulcair and the NDP did try to derail the FATCA aspects of Bill
C-31.
Justin Trudeau wants to be Prime Minister.
Notice also that because the issue becomes transferring data to the IRS
when they were not required to, FATCA per se ceases to be the real
issue. The real issue is that they turned the information over when they
were not required to.
If I were Thomas Mulcair, Murray Rankin or Nathen Cullen, I would be
watching very carefully.
The only way that Stephen Harper can protect himself in the midst of an
election is to NOT turn the information over. In fact, (thinking about
this as I write), turning the FATCA data over to the IRS could (in a
rational world) guarantee the end of the Harper Government.
Amazingly, FATCA has just become an issue in this election! Thank you
IRS! You have affected the election in Canada!
This is obviously true for all candidates and political parties.
“To be or not to be, whether tis
better …”
Does the Conservative Government really want to commit suicide?
Legal reasons (or at least considerations) …
I do agree that under the IGA, Canada is permitted to turn the
information over this week. They are permitted to, but not required to.
That said, here is their problem:
They know perfectly well that they are the defendants in a lawsuit
(“shout out to all of you who made it happen”) challenging the FATCA IGA
and enabling legislation. The lawsuit is not imagined. It is not
anticipated. It is real! The decision of Justice Martineau has NOTHING
to do with the Charter issues. If they were to simply “turn the
information over”, they would be depriving the plaintiffs of the
practical benefit of winning the lawsuit. This is NOT a nice thing to
do. It is “mean spirited”. But, it also creates a new problem for the
Government.
S. 24 of the Canadian Charter of Rights and Freedoms read as
follows:
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a court of
competent jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances.
What does this mean?
The answer is of course: who knows?
That said, it seems to me that in a situation where:
A. The Government is a defendant in a Charter trial
B. The Government takes a step during the trial, that would deprive the
plaintiffs of the benefits of a victory
C. The Government knows that by taking that step, the plaintiffs will be
deprived of the benefits of a victory
it will be easier to argue for damages against the Government for an
“infringement or denial” of those Charter rights.
Think of it. The possibility of millions of INDIVIDUAL Canadians being
able to sue the Government of Canada for damages for infringing their
Charter rights!
To be clear, my point is:
For the Government to transfer the banking information of millions of
Canadians to the IRS, when they can’t argue that they were required to,
means that the infringement of the Charter right is NOT accidental or
incidental. The infringement of the Charter right is malicious and
vindictive.
In 2010 the Supreme Court of Canada declared that S. 24(1) does
have “teeth”.
S. 24 of the Charter means that damages can be claimed against the Government for breaches of the Charter of Rights http://t.co/iV18Tg7vKX
— Citizenship Lawyer (@ExpatriationLaw) September 19, 2015
The above tweet references in an interesting article that begins with:
On Friday the SCC set a precedent for awarding
constitutional damages for Charter violations in the decision
of City of Vancouver v. Ward, 2010
SCC 27. The SCC in part allowed the City of Vancouver and Province
of British Columbia’s appeal of Tysoe J.’s award of damages to Alan
Cameron Ward for Charter violations. Ward was wrongfully
arrested because he fit the vague description of a person who was
suspected of trying to throw a pie at former Prime Minister Jean
Chretien. His Charter right to be free from unreasonable search
and seizure was violated when the police stripped searched him and
seized his car. Tysoe J. awarded Ward $100 and $5000 for the violations
relating to the car and strip search, respectively. Last year I
discussed the British Columbia Court of Appeal’s (BCCA) decision in the
case in One
Order of Just Desserts, Hold the Mala Fides Requirement.Unlike the SCC decision, the BCCA’s decision was primarily focused on
the issue of whether mala fides was required in order for
damages to be awarded for a Charter violation. The City and
Province argued that the police did not possess mala fides, and
thus damages should not be awarded to Ward. Although the SCC did not
explicitly state that mala fides is not required, its decision
impliedly stands for that proposition.
Constitutional Damages are “Appropriate and Just”McLachlin C.J., writing for the unanimous SCC, framed the issues as: (i)
whether a claimant is entitled to damages as a remedy under s. 24(1) of
the Charter; and (ii) if so, how should the quantum of damages
be assessed? McLachlin C.J. responded to the first issue in the
affirmative. According to s. 24(1) of the Charter, anyone whose
rights have been violated may apply to a court of competent jurisdiction
for any “appropriate and just” remedy. This provision grants courts
broad discretion to award damages, though this discretion is limited by
what is appropriate and just according to the facts and circumstances of
a particular case.The SCC endorsed four general considerations established in
Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003
SCC 62, that inform whether a remedy is appropriate and just. An
appropriate and just remedy will:(1) meaningfully vindicate the rights and freedoms of the claimants; (2)
employ means that are legitimate within the framework of our
constitutional democracy; (3) be a judicial remedy which vindicates the
right while invoking the function and powers of a court; and (4) be fair
to the party against whom the order is made.
Now, this blog post is not a “legal article”. Nevertheless, it’s clear
that Charter S. 24 does exist and that it has been used. It’s also
“common sense” that is more likely to be used when the Government
INTENDS to infringe Charter Rights.
It’s the right thing to do …
At the end of the day (maybe not until the very end) life is NOT about
law (never confuse it with morality), politics (an exercise in how the
coercive power of government is exercised), but about doing the “right
thing”.
FATCA is wrong. FBAR is wrong. CBT is wrong. Therefore it is wrong for
the Government of Canada to participate in inflicting these immoral
things on Canadians.
Trust me. At the end of the day, we win because all of these things are
wrong!
My new T-shirt is laundered and ready for the public. I’ll do you all proud to get the message out. Letting the NOT HONORABLE Mr. Harper know is a good start. I’ll get out and stir up as much conversation as I can. I hope other do the same…..
This title for this post should be:
Amazingly, FATCA has just become an issue in this election! Thank you IRS! You have affected the election in Canada!
Just sent an e-mail to all 4 party leaders, finance ministers, my mp as well as my liberal candidate.
Marie,
Thank you. Can others please do what Marie just did?
I am not on Facebook and I don’t Tweet, but I did send an email to NDP Party candidates and will continue with others…
From: calgary411
Sent: Saturday, September 19, 2015 9:28 AM
To: Nathan.Cullen@ndp.ca ; Murray.Rankin@ndp.ca ; george.smith@ndp.ca ; thomas.mulcair@ndp.ca ; mike.sullivan@ndp.ca ; kirk.heuser@ndp.ca ; Matt Masters Burgener ; Dany Allard
Subject: Amazingly, FATCA has just become an issue in this election! Thank you IRS! You have affected the election in Canada!
Dear NDP Party Candidates from A VOTER IN CALGARY, ALBERTA, CANADA:
My prior questions to Mr. Mulcair and the NDP Party:
Will the NDP Party make the IGA that implemented U.S. *FATCA* law in Canada an important issue?
Will ALL Canadians have the same laws and rights?
From: https://adcsovereignty.wordpress.com/2015/09/19/to-turn-the-fatca-data-over-or-to-not-turn-the-data-over-whether-tis-better-for-the-government/
Political Reasons …
So, far the claim of the Harper Government has been: “They made us do it.” “We had no choice.” “The banks wanted it”. All of these claims are based on coercion. As of yesterday, it is very clear that the Government is NOT required under the Model 1 IGA to “comply” by September 30, 2015. They just aren’t. Let’s imagine that the CRA turns the information over this week. Let’s say that someone asks:
Q. When did you turn the information over this week, when the “IRS” (I have always maintained that the IGA turns Canada over to the IRS) said that you didn’t have to.
A. The answer is NOT: “Because we were forced to.”
A. The only possible answer is: “Because we WANTED to.”
Think of it. Can the Government of Canada say (in the midst of an election no less) that:
We gave the information of hundreds of thousands of Canadian citizens to the IRS because we WANTED to!! That’s a bit rich (even for a Government that is desperate to please the banks by obeying the IRS).
And to turn the information over in the middle of an election …
Now, you can see that this will become more improbable. Although, few Canadians know about FATCA and few Canadians care about FATCA, this could be a “big stick” in the hands of Mulcair (mainly), Elizabeth May (presumptively) and Justin (who knows).
Never forget that:
Elizabeth May and the Green Party have an anti-FATCA platform.
Thomas Mulcair and the NDP did try to derail the FATCA aspects of Bill C-31.
Justin Trudeau wants to be Prime Minister.
Notice also that because the issue becomes transferring data to the IRS when they were not required to, FATCA per se ceases to be the real issue. The real issue is that they turned the information over when they were not required to.
If I were Thomas Mulcair, Murray Rankin or Nathen Cullen, I would be watching very carefully.
The only way that Stephen Harper can protect himself in the midst of an election is to NOT turn the information over. In fact, (thinking about this as I write), turning the FATCA data over to the IRS could (in a rational world) guarantee the end of the Harper Government.
Amazingly, FATCA has just become an issue in this election! Thank you IRS! You have affected the election in Canada!
This is obviously true for all candidates and political parties.
Legal reasons (or at least considerations) …
I do agree that under the IGA, Canada is permitted to turn the information over this week. They are permitted to, but not required to. That said, here is their problem:
They know perfectly well that they are the defendants in a lawsuit challenging the FATCA IGA and enabling legislation. The lawsuit is not imagined. It is not anticipated. It is real! The decision of Justice Martineau has NOTHING to do with the Charter issues. If they were to simply “turn the information over”, they would be depriving the plaintiffs of the practical benefit of winning the lawsuit. This is NOT a nice thing to do. It is “mean spirited”. But, it also creates a new problem for the Government.
S. 24 of the Canadian Charter of Rights and Freedoms read as follows:
Again,
Will the NDP Party make the IGA that implemented U.S. *FATCA* law in Canada an important issue?
Will ALL Canadians have the same laws and rights?
On behalf of those the Conservative government defines “US citizens who happen to reside in Canada” – do YOU agree with them
or
ARE WE CANADIANS, not second-class to any others in Canada – no matter where they were born or the national origin of their parent ( s )?
Sincerely,
Carol Tapanila
Twitter? I’m also calling my MP, John “thrilled about the FATCA IGA” Weston, self-proclaimed “point man” on FATCA. I won’t stop until I talk to him. He knows me – we’ve met three times to discuss FATCA.
Bubblebustin,
Thanks! A phone call is even better. Would like to listen in on this conversation…..
Might be worthwhile to include Mr. Kevin Shoom. Remember him? Letters of concern to Finance Ministry?
Since it is a Twitter assault, may I suggest that you manageflitter.com use to identify your followers with the highest influence, and contact them to RT. Let the assault begin
Shoom, Kevin:
Kevin.Shoom@fin.gc.ca
Just got my Twitter account this week. What hashtag(s) shall we use?
I agree with George. Harper and the Haperoids are just mean, nasty people, on a whole range of issues. They, and especially Harper, hate being contradicted or challenged on anything, and I’m sure they are not happy about the court challenge (though no doubt delighted with the decision that was rendered). So I fully expect they’ll just send everyone’s data to the IRS anyway, if only out of pure spite. I wish I were wrong, but nothing that I’ve ever seen from Harper or his government give me any reason to expect otherwise.
In which case let’s make this the silver stake that we drive through the heart of the vampire to put an end to him, on October 19.
@John Richardson, carrying on further….Harper and the Cons have a tremendous amount to gain!!
They could “voluntarily” delay handing over the information to the IRS, cite the reason being the Charter Challenge, issue a strong press release that they were sticking up for Canadians and be smelling like roses.
To be honest, I hope some Brockers who have not burned bridges with the Cons could also use that approach.
Maybe Bubbles could use it with her MP…. 🙂
@Schubert, yes my guess is that they will hand it all over out of spite…..unless maybe….they think they can turn it into a PR win for themselves.
As I thought about it in my last post they could take all the glory about delaying and be “sticking up for the Charter.”
Excellent!!!!!!!
Brockers….another delay on the 30% bit
http://www.wsj.com/articles/treasury-to-delay-enforcing-part-of-tax-law-that-curbs-offshore-tax-evasion-1442609347
I can’t do twitter or facebook but I’ll try to get e-mails out … as soon as I figure out what to write. Just to make sure that I have everything straight does this sound right?
1. Canadian financial institutions have already sent their FATCA reports to the CRA.
2. The current deadline for the CRA to transfer this data to the IRS is September 23, 2015 or September 30, 2015 (which one?).
3. NOW the IRS says that IF (and only IF) the Canadian government requests a delay prior to September 30, 2015 then the new deadline for the data transfer from CRA to IRS will be September 30, 2016.
4. This one year delay is vital to allow the planned charter challenge to proceed. If the data is transferred this month then the plaintiffs (and everyone they represent) will be harmed even though their legal action proves to be successful. CANADA MUST REQUEST THE DATA TRANSFER DELAY.
I’m going to try to be as brief as possible with my e-mails because all politicians are in election mode and have little, if any, time to pay attention to 1 million (plus) Canadian citizens and residents who will be harmed by FATCA reporting.
When will the ADCS press release come out?
It’s not a direct comparison, but UK banks paid big time by hacking off one customer by refusing to refund bank charges. That customer found an obscure precedent that a company can not charge more than its costs because a customer paid late. For example, charging £40 to write a letter that clearly costs the bank only a £1.
We that was it. UK banks had a avalanche of small claims over the next few years totally into the £100s of millions. All because of one hacked off customers. I personally sued three banks and won about £3000.
A the time the BBC posted PDFs that amounted the task into a form filling in exercise. The morning of one of my hearings, the court had about 50 other people suing banks that morning.
Food for thought.
EmBee, everyone will have their own preamble and explanation, but the bottom line focus should be on what you highlighted:
“CANADA MUST REQUEST THE DATA TRANSFER DELAY.”
The press release is out on Tricia’s post on Brock.
Again, I hate to pee on the parade, but as I understand it, there are two parts to this. A) The Government of Canada, during an election, has to ask the IRS for the exemption (citing grounds for the request, I believe) and B) the IRS has to buy into the grounds and then agree to grant the exemption. While I suspect and hope there may be some sympathy among working-level officials in CRA, Finance and who knows maybe even IRS, I have no hope of sympathy at the political level from either government. By all means give this a shot, the worst that happens is the data get transferred anyway, and there’s another election issue with which to hammer the Cons, but I wouldn’t plan my family’s financial (or perhaps citizenship) future around any scenario other than the latter one.
I won’t echo usxcanada, though I can hear him saying the words and in my mind yes there is an echo …
My sympathies and great respect go out to the ADCS team who must feel like they are doing multiple, successive, 100 yard dashes as they prepare for the 26 mile charter challenge marathon. I’m tired just watching this from the sidelines.
@ Schubert
Frankly I’m tired of reading usxc’s SQP (Sauve Qui Peut) and prefer STAF (Stand Together And Fight).
FYI, I was the person who first notified John and the ADCS board of this change last evening.
I will make one comment and that is right now Stephen Harper is only “caretaker” Prime Minister and thus any decision by the government which is not legally mandated should be taken in consultation with the opposition parties as any policy action may negatively impact the political freedom of a future government.
Thus I believe much of our call to action should be directed at CRA Deputy Minister and Commissioner Andrew Treusch and his supervisor Clerk of Privy Council Janice Charette.
http://www.clerk.gc.ca/eng/feature.asp?pageId=258
http://www.cra-arc.gc.ca/gncy/cmmssnr/menu-eng.html
Both should be reminded of the Privy Council Caretaker Convention:
Excepts below:
http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=convention&doc=convention-eng.htm
In short, during an election, a government should restrict itself – in matters of policy, expenditure and appointments – to activity that is:
(a) routine, or
(b) non-controversial, or
(c) urgent and in the public interest, or
(d) reversible by a new government without undue cost or disruption, or
(e) agreed to by opposition parties (in those cases where consultation is appropriate).
In order to fulfil their ongoing responsibilities, ministers must remain in contact with the deputy minister to provide direction to the department or portfolio as appropriate. At the same time, in order to respect the caretaker convention as well as the distinction between official government business and partisan activity, in the absence of any of the exceptions enumerated above, ministers must:
•defer to the extent possible such matters as appointments, policy decisions, new spending or other initiatives, announcements, negotiations or consultations, non-routine contracts and grants and contributions;
Amen, EmBee!
@Schubert1975
I was thinking along similar lines, like what if the CRA has been informing the IRS of its progress and told them they’re ready? But then again, maybe Canada’s been one of the countries that’s having difficulties and has been informing the IRS of that instead. This delay from the IRS could have actually been at Canada’s behest. We simply don’t know.
Then I was also thinking that if it’s really the IRS that’s not ready, they’ll be prepared to take just about any excuse to not go forward.
Monday morning Brockers should contact by phone both the Clerk of the Privacy Council and the CRA Commissioner/DM and remind them specifically of their caretaker convention obligations in light of the recent FATCA announcement:
Contact information is below
http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=contact#III
http://www.cra-arc.gc.ca/cntct/ccrffcls-eng.html
CRA commissioner Treusch also has a TWITTER account at @AndrewTreusch
Thank you Tim and all our other eagle-eye Brockers that place the IBS blog above all others!