[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:

1. 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.
2. 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!!

John
Richardson

___________________________________________________________________________

Here is why …

Last night I wrote a quick post reporting that:

1. The IRS has delayed FATCA implementation for another
   year;
2. 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:

1. The Government of Canada has
   NOTHING to gain by turning the data over this week. There is
   ZERO potential gain; and
2. 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!