I want to give you a status update on the Alliance for the Defence of Canadian Sovereignty (ADCS-ADSC) “FATCA IGA” lawsuit against Canada’s Justin Trudeau Government.
Our lawsuit argues that the Canadian legislation that enables the U.S.-Canada FATCA “agreement”, made under threat of financial penalty imposed by the U.S., violates Canada’s Charter of Rights and our Constitution.
The Case Management Judge who is handling the logistics of the lawsuit has asked for a status update from Plaintiffs Ginny, Gwen, and Kazia. Our Vancouver litigators responded on their behalf on November 4, 2016 and said:
“We can advise that counsel for the Attorney General has advised counsel for the Plaintiffs that the Attorney General will be filing a motion for production of documents and particulars within the next two weeks.
The Plaintiffs intend to file a summary trial motion and supporting materials by December 2016. The Attorney General takes the position that a summary trial cannot proceed, even with respect to setting dates for service of materials in response, until the Attorney General’s motions have been resolved, any resulting orders satisfied, and examinations for discovery of the Plaintiffs have been completed.”
This means that our litigators expect to provide the Court with the submission for the Constitutional-Charter FATCA IGA trial (including expert testimonies and witness affidavits) by December 2016.
However, there is ongoing back and forth between Government and our side regarding timing of the production of “documents” (I can’t go into the details). These disagreements will have to be sorted out by the Court and could result in a delay in the trial, which will be held in Federal Court next year.
I know that litigation moves slowly, will keep you posted on developments, and thank you for your patience.
The Claims can be found HERE.
@iota
In the US, members of Congress, the President, the IRS, etc.
In other countries, members of the government or legislature/parliament.
@beneficii – I don’t see how UK MPs can do anything about FATCA, but I definitely agree that it’s a good idea for UK citizens affected by FATCA or by the bizarre provisions of the DTT to raise the issues with their MP.
@iona
UK MP’s could act to interpose the UK between the US government and US expats in the UK, at least those who are also UK citizens. Parliament could prohibit UK institutions from complying with FATCA and then the government can take steps to enforce that prohibition.
So there are things they can do.
@beneficii – banks could be prevented from reporting on USP customers but they can’t be forced to accept USPs as customers. The UK government doesn’t have the power to protect USPs from the effects of FATCA, even if it considered that to be in the interests of the country. It’s UK policy, and UK law, to co-operate with other countries in sharing bank information. That’s not a position that’s likely to change.
Once this wretched election is over, there may be changes. And longterm, the UK government and other governments could put pressure on the US to reciprocate, as agreed. If the US tax haven industry was threatened with compulsory reporting to other countries, that could lead to significant changes.
@iona,
Would reciprocation help end CBT?
To be able to reciprocate, the federal government would have to get the states to co-operate, as I understand it. It seems conceivable (to me, a non-expert) that getting the states to play ball might involve concessions in the extent of reporting required, and if so, the concessions might apply to FIs also. For instance, reducing the type of accounts that have to be reported on. But that’s only my speculation, and it might not be well-founded.
Muzzled,
It’s not possible to predict the length of any delay in the trial caused because of pre-trial motions, My own personal guess, which may be right or wrong, is that the Constitutional-Charter will take place beginning of summer in 2017.
@Stephen, thank you for the update and all the heavy lifting you and the others of ADCS have done and are continuing to do, in order to make this happen. Many of us will continue to follow, support and provide company along the way – no matter how long the journey.
It will be interesting to know just how much of our own Canadian taxpayer revenues the Government of Canada continues to throw away in order to implement and defend the foreign law of a foreign nation on Canadian sovereign soil – abusing honest Canadian citizens, residents, taxpayers and accountholders – without cause, and without regard to our rights and constitutional laws – in order to support the extraterritorial fundraising by the US Treasury.
Our Canadian taxes wasted on the implementation and federal defense of FATCA are a direct and ongoing subsidy to the Canadian financial sector and the US government. FATCA was meant by the US to be forever and ever – and so will be the costs to Canada – and the rest of the world. Canadian dollars that are and will NOT be going to support the wellbeing and interests of Canadians – other than the Canadian Banksters and their investment kin ( think of the plight of the banks when you read ex. http://www.cbc.ca/news/canada/nova-scotia/banks-fees-analyzed-td-increase-1.3440367 , http://globalnews.ca/news/2485811/allen-stanfords-house-of-cards-how-td-banked-the-2nd-largest-ponzi-scheme-in-u-s-history/ http://www.huffingtonpost.ca/2016/11/01/canadian-banks-owned-by-each-other_n_12751158.html and ponder how the interests of the FATCAnatic lobby by the Canadian banks might align with their interest in pipelines http://www.nj.com/burlington/index.ssf/2016/10/dakota_access_pipeline_protestors_arrested_at_td_b.html , http://www.metronews.ca/news/vancouver/2016/09/12/vancouverites-occupy-td-to-oppose-standing-rock-pipeline.html , http://rabble.ca/blogs/bloggers/michael-stewart/2016/10/canadian-banks-are-helping-bankroll-dakota-access-pipeline . It probably wasn’t just support for FATCA that the Harper CONS and the Banksters had in common ).
Basically, Canada signed a blank cheque to the US Treasury when it signed the FATCA IGA, and when the Liberals of Sunny J chose to repudiate their on the record pre-election position ( ex. http://ipolitics.ca/2016/03/17/trudeau-liberals-reverse-position-on-controversial-irs-information-sharing-deal/ http://maplesandbox.ca/2015/adcs-fatca-questions-trudeau-reply/ ) and took up the Harper Con mantle with vigour ( http://ipolitics.ca/2016/06/15/cra-shared-information-on-smaller-bank-accounts-with-irs/ ), they showed us where their true allegiance lies – and it isn’t with the ordinary Canadians they pledged to serve, like Canadian Baby Elle, who the Trudeau government and a Canadian bank (the ‘comfy’ one) were apparently sanguine about throwing under the FATCA bus http://ipolitics.ca/2016/04/14/baby-girl-drawn-into-cra-irs-information-sharing-controversy/ .
@badger
In my last phone conversation with my Lib MP, Pam-Goldsmith Jones, she said that she didn’t agree with FATCA. I asked her why then does her government (of which she is also Parliamentary Secretary to our Foreign Minister) continue to fight us in court over it.
She couldn’t answer. I guess it’s easy to say one thing and do another.
@Bubblebustin, re the Lib MP “..it’s easy to say one thing and do another.”
There’s a lot of that going around in the history of FATCA, so she has lots of company in her own party, and in the CONS (ex. http://ipolitics.ca/2016/03/17/trudeau-liberals-reverse-position-on-controversial-irs-information-sharing-deal/ which the CONS clearly really deeply enjoyed raising and getting on the official record during this Information & Ethics Committee on April 14th, 2016 ex. https://openparliament.ca/committees/ethics/42-1/8/matt-jeneroux-1/ , https://openparliament.ca/committees/ethics/42-1/8/matt-jeneroux-2/ , https://openparliament.ca/committees/ethics/42-1/8/matt-jeneroux-4/ , https://openparliament.ca/committees/ethics/42-1/8/matt-jeneroux-6/ , https://openparliament.ca/committees/ethics/42-1/8/matt-jeneroux-7/ ).
The Liberals could have responded by pointing out the CON and Bankster’s preceding hypocrisy on FATCA, which Lynne had reminded the Finance Committee of as she asked them and the rest of our representatives to treat Canadian citizens and lawful residents fairly and justly; “………Under threat of economic sanctions and penalties, Canada surrendered its sovereignty to a foreign power with the IGA. Canadians affected by FATCA were stunned last week when a member of this committee said “Congress has spoken”. Canadians expect Parliament to speak for Canada. Canadians expect Parliament to uphold Canada’s laws, rights, and Constitution. Anything less is an affront and betrayal to Canada and to Canadians.
FATCA is complex. I give you a simple solution. I urge you to adopt an amendment to the implementation act. Notwithstanding any other provision of this act or the agreement for all purposes related to the implementation of this act and the agreement, U.S. person and specified U.S. person shall not include any person who is a Canadian citizen or a legal permanent resident who is ordinarily resident in Canada.
I implore you, do the right thing. Stand up for Canada and for all Canadians.”
( https://openparliament.ca/committees/finance/41-2/34/lynne-swanson-1/ )
Terry Campbell, president of the Canadian Bankers Association had said: “FATCA is the poster child for the problem of extra-territoriality….It’s hugely unworkable. It extends U.S. territoriality into Canada. It threatens to erode Canadian sovereignty. Ultimately … FATCA would have turned individual banks, individual financial institutions, into arms of the IRS [Internal Revenue Service] in the United States……..”. His words were published August 2, 2012 in the Financial Post ( http://business.financialpost.com/news/fp-street/canadas-banking-system-very-strong-canadian-bankers-association-head-terry-campbell ).
As we know, and as the Liberals could have quoted back to the CONS, there are on the public record, in the media, the unequivocal words issued in September 16, 2011 by the late former Conservative Finance minister Jim Flaherty, who actually penned his comments http://business.financialpost.com/news/read-jim-flahertys-letter-on-americans-in-canada for intended publication in major US newspapers (“The Washington Post, The New York Times and The Wall Street Journal”) and no doubt intended to be read by the US government, Congress, the US media, and a very wide public audience of readers in the US, Canada and probably also internationally – though no US paper ever published the letter as far as I know. Those words however, were followed by the obscure appearance of an obscure notice on the Finance Dept.’s site ( November 8, 2012 http://www.fin.gc.ca/treaties-conventions/notices/unitedstates-etatsunis-eng.asp ) about their ongoing ‘negotiations’ to sign a FATCA IGA with the US, in order to implement FATCA in Canada http://www.fin.gc.ca/treaties-conventions/notices/unitedstates-etatsunis-eng.asp , and the February 5, 2014 notice that it had been signed https://www.fin.gc.ca/n14/14-018-eng.asp . We also know that the US had no intention of individually negotiating the FATCA IGA terms or exempting Canada when the US Treasury invented the ‘Model’ IGAs, and Canada did not get any special deal. The Model IGAs were developed by the US Treasury without any special consideration of Canada; “…..On July 26, 2012 the U.S. Treasury provided its first detailed guidance regarding the IGA process as well as drafts of the first model agreements to serve as a basis for negotiation. These agreements were developed by Treasury in the course of discussions with France, Germany, Italy, Spain, and the U.K…..” ( https://www.dbresearch.com/PROD/DBR_INTERNET_EN-PROD/PROD0000000000299943.pdf ).
I never took politicians at their word anyway (and their words are frequently slippery vague things at best, since the devil is in the details), much less a banker, but at this point my default position is to be suspicious of anything and everything most of them say, because in this case, when faced with pressure from the US and the Canadian banksters and investment sector lobbyists, apparently even those Liberal MPs who seemed sincere and forthright on the public record against FATCA, once they had hold of elected power, chose to compromise their word, repudiate what their considerable intelligence and experience and analysis told them was true (which they testified to before their fellow Canadians and the world) and yet they are apparently able to live with the public proof of their hypocrisy and carry on as if it did not exist – while defending that they so eloquently rejected before coming to power.
@ Stephen Kish
Of course I thank you for this update but I fear the world will be in such a higher state of chaos by the time ADCS’s 2017 court date rolls around that FATCA will be among the least of our worries. US (s)election day is only hours away now and the feelings of impending doom are almost unbearable. Hiliary Clinton, establishment emissary extraordinaire, has already been declared the winner. Newsweek magazines featuring Madam President have been printed and shipped. Even if they are wrong, the erratic Donald is probably just a pre-determined emergency back-up who will bow to the power of the established elite. Where’s a miracle when you really need one?
EmBee,
I know that the U.S. election is in the news, but one “miracle” we would really like right now is entirely made in Canada: It is for Justin Trudeau to come to his senses and stand up for all Canadians — by refusing to submit to the U.S. FATCA law.
Since that miracle will never happen, we will use our Canadian lawsuit to force Mr. Trudeau to do what is right.
@ Stephen Kish
I’m definitely hoping the lawsuit does that but it will take a lot to spin Sunny-Daze Justin around. I also hope Ginny will be given a chance to give the court a piece of her mind. I know she really wants to.
I have always believed the true ultimate source of evil in FATCA is Notre Dame Professor Michael Kirsch. I have repeatedly called for open letter to the President of Notre Dame calling for Kirsch’s immediate termination of employment for war crimes and human rights violations. However, almost to a man and woman here on Brock this suggestion is viewed inflammatory, confrontational, and unhelpful. These views vis a vis Kirsch’s firing from Notre Dame are the same reason people like Boris Johnson and Hilary Benn don’t speak up about FATCA.
@ Tim
I don’t know about war crimes but the conclusion of Kirsch’s paper titled “Revisiting the Tax Treatment of Citizens Abroad: Reconciling Principle and Practice” definitely lacks empathy. Suggesting the IRS should be more “sensitive” is pie-in-the-sky. The IRS revels in its power and delights in its long extraterritorial reach.
http://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1952&context=law_faculty_scholarship
Those in Canada donating to the US presidential campaigns include a press secretary to the Liberal Defence Minister, and a Conservative MP :
“…….. FEC records show that Bob Dechert, former Conservative MP for Mississauga-Erindale, who recently announced plans to seek an Ontario PC nomination, donated $250 on July 26 to the Oklahoma Leadership Council, which contributes money to Republican candidates. Dechert’s contribution was refunded on Aug. 10.
Several attempts by CBC News to reach Dechert to find out more about his contribution and why it was refunded have been unsuccessful.
Jordan Owens, who now works as press secretary to Defence Minister Harjit Sajjan, made two contributions totaling $205 in June 2015 to Clinton’s Hillary for America campaign. At the time, she worked for the Gandalf Group.
“I have always supported the Democratic Party,” said Owens, who has American citizenship.”………..
http://www.cbc.ca/news/politics/canada-trump-clinton-u-s-election-1.3837993
This is most likely the Jordan Owens from the story above
https://ca.linkedin.com/in/owensj
Does our Defence Minister Harjit Sajjan consider and define his press secretary as a “taxable US person” to be a Canadian first and foremost, or an “American taxpayer abiding in Canada” as the US FATCA IGA and its signatories and defenders would say? Does he and the rest of the Trudeau government including the Prime Minister consider a federal Canadian press secretary to be first and foremost a Canadian, or rather, a “US taxable person” with ‘foreign accounts” (i.e. Canadian) assets in need of extraterritorial FATCAnization by the US, with the help of the CRA and the Trudeau government? Are they in agreement that her local legal ordinary Canadian accounts should be proactively reported automatically and annually to a foreign country without evidence or probable cause?
What nationality does the Defence Minister consider is the dominant nationality on Canadian soil when it comes to his press secretary?
@badger
done
If this isn’t where you wanted it, pls let me know. Spacey today. 🙂
@Tim
When? Link?
Thanks!
Congratulations to all Brockers on Trump election victory. Finally a real chance at not just reforming
this ridiculous FATCA disgrace but outright getting rid of it in total.
When the vote comes up in Congress, you can be sure it is going in the trash bin and Trump will
confirm it.
Also wish to mention that many of us American expats were one issue voters on FATCA and congratulations
to all those who voted Trump as know it made a real difference, and possibly a deciding difference, that our vote counted and rejected Hillary from more FATCA and FATCA-like disgrace. I would love to know that
American expats were the deciding factor and put Trump over the top.
@Duality, weither expats decided this or not, thats the image we must paint!!!
@ADCS Team, me thinks your lawyers need to ask the governments lawyers if they still plan on defending in light of the election?
Remember, my thought is tactical more than anything else. Its an appeal to their political instinct do they really want to die on a hill when the hill is going to be bulldozed by a yuuuge bulldozer? They can now capitulate claiming a Canadian is a Canadian with no fear from the USA. Its a win win for them, at least thats what we paint tacticly.