cross-posted from ADCSovereignty
Regional reality: There are worse alternatives than the House of Saud https://t.co/AGYXguQL1B – tension between human rights and economics
— Citizenship Lawyer (@ExpatriationLaw) January 16, 2016
Many years ago I became familiar with the story of William Sampson who was a Canadian born engineer who, worked in Saudi Arabia, was tortured in a Saudi Arabian prison, eventually was released and died at very young age. I had the privilege of briefly meeting him. He was actually considering attending law school (and I know that he was accepted by at least one Canadian law school). I highly recommend his book – “Confessions Of An Innocent Man“. To learn more see this documentary.
At the very least …
you will appreciate the importance of rule of law (somehow I don’t think the ADCS Charter challenge would be an option in Saudi Arabia and many other countries.) By the way, I do know that FATCA and U.S. citizenship taxation are causing problems for many Saudi citizens (who by the way are allowed only one citizenship). Many Saudi citizens fear that the imposition of U.S. citizenship will cause problems with both the U.S. Government and the Saudi Government.
This morning I received an email linking me to this article which detailed some of the recent “Saudi human rights abuses”.
Okay, so …
The above references an interesting article that appeared in today’s Globe and Mail. The article was written by Michael Bell who is a Carleton Professor and apparently an adviser to the Trudeau Liberals.
For the record, I am in NO WAY equating the treatment of Canadian citizens under FATCA with the human rights violations that are alleged to have been committed by the Saudi Government. What I found interesting was the willingness of the writer to tolerate those individual human rights abuses because it was in the common good to do so. What I find particularly interesting (and I hope that I am not being unfair to him) is that he seems to assume that “collective rights” (society) take precedence over “individual rights” (Charter rights). Interesting question. I had always understood that the whole point of a Charter of Rights was to give individually protected Charter rights a priority over group rights (within reason and that’s why S. 1 of the Charter exists). As I think about the article I wonder whether Mr. Bell would apply the same reasoning to a a gross violation (and NO CANADIAN is subject to the kinds of violations that occur in some other parts of the world) to the rights of Canadian citizens in Canada.
As a reminder, Charter S. 1 provides the template for when the violation of individual rights should be justified. S. 1 of the Canadian Charter of Rights and Freedoms reads as follows:
Rights and freedoms in Canada
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
Those of you who are interested in what this is interpreted to mean should read the Oakes decision of the Supreme Court of Canada. Wikipedia comes to the rescue (maybe) here.
I recommend Mr. Bell’s article (it is quite short) and urge you to read the comments.
I am referring specifically to the following excerpt from his article:
If the Saudi royal family were to fall, it would result in a massive destabilization of the Arabian Peninsula. Does this mean we should write them off in a world when hardball is the only game, where no regional standards meet ours? Are we to write off the interest displayed by the smaller Gulf States – Kuwait and the United Arab Emirates – in acquiring LAVs because of their alleged human rights violations (which are less spectacularly evident in the international media)?
To do so would mean single-issue politics, in this case human rights, should invariably trump all other considerations, including international and regional stability, security and our own economic well-being. If so, we should immediately consider the future of our relationship with other noteworthy human rights violators, perhaps beginning with China.
Unfortunately, we live in a highly imperfect world where it is beyond our capacity to change the primordial behaviour of other states within their own borders, no matter the legitimacy of our concerns. As members of the international community we live in a web of immensely complicated contending interests where to be effective we must be realists.
We have to ask ourselves whether a rough balance of power in the Middle East, as shambolic as it is, better suits Canadian interests than the fall of the Saudi dynasty, which would further destabilize an entire region. These LAVs may just maintain a semblance of equilibrium. Nor can we ignore that this latest deal (we have been selling LAVs to the Saudis for decades) affects 3,000 jobs over 15 years, and is worth $15-billion to the Canadian economy. Hefty penalties would apply were we to renege.
What do you think? Should the Trudeau government sell arms to Saudi Arabia?
Thank you for your continued support. As Stephen continues to report – we do need generous funding to continue.
From the article on Saudi’s human rights abuses (horrific in their scope & approach):
“The more power a country has in the international system, the less they have to worry about human rights reports,” he says. “And the Saudis have leverage because of oil.”
Another EXCELLENT reason to move away from oil to other means (solar, water, wind, renewables) of power & energy. Then, they’ll have oil & sand & not much else to offer…
I wouldn’t presume to be able to comment on your question directly, John, but I did notice some wording in Mr. Bell’s statement that ought to be applied to the US when dealing with its tax policy:
“Unfortunately, we live in a highly imperfect world where it is beyond our capacity to change the primordial behaviour of other states within their own borders, no matter the legitimacy of our concerns. As members of the international community we live in a web of immensely complicated contending interests where to be effective we must be realists.”
I guess it isn’t “beyond our capacity” any more. The “primordial behaviour” of states other than the US is to practice financial privacy, and taxation of residents only. FATCA, of course, has managed to do what Mr. Bell says is impossible and has successfully destroyed the privacy rights and financial stability of people all over the world.
Despite the “legitimacy” of US concerns about tax evasion, its people and its politicians need to become “realists” with regard to identifying who exactly their tax evaders are.
Sorry, John, I’ll let everyone return to the concerns of your post. I just had to point out the application to our cause of this excellent quote.
How will Government argue Charter Section 1 against our lawsuit?
This is how Canada’s Conservative Government (on November 10, 2014) — supported now by the new Liberal Government — has already responded to our lawsuit’s Claims re: Canadian Charter Section 1:
“Charter Section 1
51. In the alternative, if the Impugned Provisions infringe ss. 7, 8, or 15 of the Charter, which is denied, the Impugned Provisions are constitutional because any such infringement is justified in a free and democratic society.
52. The Impugned Provisions are reasonably necessary to achieve the dual goals of relieving Canadian financial institutions and their clients of the potential for crippling tax and commercial consequences of non-compliance with FATCA and furthering Canada’s international commitments to share information for the better administration and enforcement of taxation laws.
53. Further, these objectives are are of sufficient import to warrant limiting any right which may be infringed and any infringement is proportional to the objectives and to the benefits conferred by the Impugned Provisions.”
[Four days left to pay legal bill on time. Please continue to donate to keep our lawsuit funded: http://www.adcs-adsc.ca]
The U.S. government essentially trades arms and airplanes for oil. they don’t see it this way but that is the reality. We buy Saudi oil and They by jets and arms from us.
We tacitly approve of their treatment if dissidents, the treatment of women and the all knowing ability, of the Royals. Our presidents bow and kiss their rings when they know full well that some of that oil money goes to terrorists around the world.
Yes, that is something that has concerned, me , the ethical argument of “that which does the least harm” and how it relates to the law and the Charter, when presented with the fatca problem. Surely, the course which would do the least harm would be that which would have protected all Canadians including those with US indicia who are RESIDENT in Canada by respecting the dominant nationality rule.
I guess what we have to try and come up with are logical defences or arguments or whatever you call them to the government’s ideas about:
The 2nd part of the statement is gooblygook. this has nothing to do with furthering Canada’s international commitments as what is required here is different than what CRS/OECD requires. We have to educate and re state over and over again that this part does not apply.
For me the difference between CRS and FATCA is:
CRS is exception reporting based on residency. Legitimate residents don’t get reported by CRS.
FATCA is a dragnet based on US personhood. Everyone deemed by the USG (and the definition is changeable by the USG in future) get reported.
For the US, FATCA data is less about tax than it is about tracking people around the world using the world’s financial system as the gateway.
Agree with Don’s assessment
Yet both are lethally dangerous to persons living in many countries around the world where people will try to smuggle a little savings out of the danger zone and into countries that are perceived to be more just … only now to be betrayed under CRS.
People forget about the past… if my family didn’t have *nest eggs* outside of our original home country… when they escaped… leaving behind everything they could not carry… they wouldn’t have anything… why should any country have a road map of everything a person has… unless people survive a war where they need to run from their own gov’t for their lives… no one understands…
Perhaps the feds aren’t concerned with our privacy rights, warrants, etc. at all anyway:
‘CSIS repeatedly obtained confidential taxpayer data without warrants, watchdog says
Review agency finds case wasn’t isolated incident of obtaining information improperly from CRA’
By Alison Crawford, CBC News Posted: Jan 28, 2016 1:02 PM ET Last Updated: Jan 28, 2016 1:34 PM ET
“subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
It’s hard to argue that a foreign tax break fits that description; but even if it did, the banks can still get that foreign tax break by complying with FATCA if they want to, but somebody else could open a new bank that does not comply and, with lower expenses, would offer better interest rates and will drive the FATCA-compliant banks out of business.
FWIW I hate the Canadian Government, but I hate the U.S.A. Government more.
As you say @Tricia, the second part of the government’s statement is gobbledygook;
.”.The 2nd part of the statement is gooblygook. this has nothing to do with furthering Canada’s international commitments as what is required here is different than what CRS/OECD requires. We have to educate and re state over and over again that this part does not apply”
The CRS Handbook refers to FATCA throughout, but also includes; ‘PART III: THE STANDARD COMPARED WITH FATCA MODEL 1 IGA’ page 87 which differentiates it from FATCA
http://www.oecd.org/ctp/exchange-of-tax-information/implementation-handbook-standard-for-automatic-exchange-of-financial-information-in-tax-matters.pdf . There are other sites which attempt to compare the two.
There was no reason why implementing the CRS was contingent on implementing FATCA – and convenience or going along to get along with the US under threat of unjustified and extortionate economic sanctions isn’t sufficient. The OECD – despite being dominated by the US, made it quite clear that their approach was based on actual RESIDENCY, not the birthplace-and-parentage based taxation the US conveniently foists on those it deems to be citizens as well as the fictive US residency assigned to other so-called ‘UStaxablepersons’ for life, such as that of expired green card holders who have returned to their home country without surrendering to US procedural demands.
The US still hasn’t and won’t sign on to or ratify the OECD CRS. It is merely convenient for everyone to pretend that FATCA was somehow an international cooperative venture, when as many experts such as Prof. Christians have pointed out, iit is clearly a domestic US law designed for extraterritorial application – and never was intended to include any ‘reciprocity’ whatsoever. Any Fed argument is BS that participating in or implementing the CRS was contingent somehow on prior implementation of FATCA via the IGA.
Putting lipstick on a pig doesn’t make it any less porcine.
And if it is NOT demonstrably constitutional for our own domestic tax agency to access taxpayer information without a warrant (see ex.; ‘CSIS got personal taxpayer data from Canada Revenue Agency without warrant’, Toronto Star and ‘Canada’s electronic spy agency broke privacy laws, watchdog says
Federal watchdog says the Communications Security Establishment passed along metadata of Canadians to counterparts in the U.S., among others’ ) and be congruent with “….such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” then how can an incongruent foreign extraterritorial law be justified that way?
And further, if the CRA has a ‘duty of care’ to Canadian taxpayers (see recent Leroux case) and not just the Ministry of Revenue, then how can their collection and remittance of masses of Canadian taxpayers financial and personal data under the terms of the FATCA IGA be congruent with their ‘duty of care’ – particularly when it is the Financial institutions (no experts in US citizenship or tax law) which decided which Canadian taxpayer accounts and accountholders to report – some of whom are bound to be Canadian taxpayers who may not even actually be US reportable persons? The CRA hasn’t vetted the data and examined each and every one to verify if they are indeed owned by ‘US reportable persons’ – yet sent a mass of Canadian taxpayer owned data to the IRS in September anyway. That does not appear to me to be congruent with the more paramount duty that the CRA has to Canadians.
I am hoping that some of the recent developments re Canadian taxpayer data privacy breaches and of establishing that the CRA has a ‘duty of care’ towards Canadian taxpayers may prove helpful in establishing that the FATCA IGA does NOT trump our Charter and Constitutional rights – even if the Feds are choosing to uphold the IGA for political convenience and to appease the US and Canadian Banksters.
Maybe Canada should try some “crippling tax and commercial consequences” against the US for not reciprocating, should the “better administration and enforcement of tax laws” be so important to Canada.
The Canadian government’s hog tied itself with its statement.
Seriously, should economic sanctions be recognized by the Canadian government as a legitimate means by which to enforce information exchange, doesn’t the Canadian government need to do the same in order to support that justification to the Canadian people.
@Badger, “The OECD – despite being dominated by the US, made it quite clear that their approach was based on actual RESIDENCY, not the birthplace-and-parentage based taxation”
You bring up a good point and iron sharpens iron.
On brock we have started using “Place of Birth Taxation” instead of CBT which is wise but you bring up another term for the lexicon. PBT as in Parent Based taxation.
As words CBT is defensible but PBT…..Place Birth Taxation and/or Parent Based Taxation is not defensible,