The initial reaction of the Canadian government to FATCA can best be described by a letter then-Finance Minister, the late Jim Flaherty wrote, intended to be placed in major American newspapers.Virtually no one believed there would be any reason for the U.S. to impose this given Canada is a higher tax jurisdiction and owing annual income tax was rather unlikely. Back in 2012, in spite of all the scaremongering created by the IRS and foreign tax compliance practitioners, the underlying hope/belief of “US Persons” in Canada was that it would be impossible to get around the Canadian Charter of Rights and Freedoms. In spite of the fact that the first Model 1 IGA was released on 26 July 2012 by the US Treasury. The IGA was developed cooperatively with France, Germany, Italy, Spain and the United Kingdom.
The post below was written over a year before the Canadians signed the IGA agreement on Feb 5 2014. Interestingly enough, it was written on the same day as a letter written by Peter Hogg, perhaps THE most important constitutional lawyer in Canada. This letter was sent to the Department of Finance and was welcome news.
“Note that the prohibited grounds of discrimination
include ‘national or ethnic origin’, and the Supreme Court has held that citizenship is an ‘analogous ground’ also prohibited by s. 15(1).”
(Andrews v. Law Society of BC (1989) 1 S.C.R. 143)…
“The point of this letter is to urge the
Government not to agree to an IGA which would call for foreign legislation which would offend s. 15
of the Charter.”
Perhaps I just have a bad memory but it is curious to me now, that there is such a difference in the time some of our main allies signed and when we signed. I only recently (and surprisingly) learned that the U.K. and Germany do not have anything comparable to our Charter. Could that be a reason they were more willing to sign earlier on in the process? Does it mean the Canadian government at first considered the possibility that any action they took would not be able to withstand a Charter Challenge? And if so, what was it that made them change their minds? How did they come to believe they could get away with changing a law to break the law? Bill C-31 is the only of the clearly unconstitutional laws that the Trudeau government refuses to budge on (the others being C-23 C-24 & C-51).
@DiLebouthillier Oh the bloody irony-U have nerve 2 tell dual CDNs they need 2 be transparent 2 US yet U HIDE truth https://t.co/f6oMz5PMqC
— Patricia Moon (@nobledreamer16) June 18, 2017
While Canada clearly failed when it had the chance to stand up to the U.S. government, perhaps we can count on the Supreme Court of Canada, in the end, to demonstrate leadership by living up to the ideals enshrined in the Charter.
Reposted from renounceuscitizenship blog on December 21, 2012.
#FATCA IGA may violate Canada's constitution – interesting argument http://t.co/SfU8DJH2 – #americansabroad take note
— U.S. Citizen Abroad (@USCitizenAbroad) December 20, 2012
Love him or hate him (and there was very little in between) former Canadian Prime Minister Pierre Trudeau left his mark on Canada. The Trudeau Liberals brought Canadians a set of entrenched constitutional rights. From April 1, 1982 the history of Canada was forever changed.
1982: The Charter was intended to give individual Canadians rights …
The Canadian Charter of Rights was intended to give individual Canadians (including permanent residents who were non-citizens) an important set of rights that governments could not (as a general principle) override. These rights included rights in a number of categories including: legal rights, rights to freedom of expression, mobility rights, equality rights and more. Although originally touted as the “biggest make work project ever for lawyers”, Canadians in general have benefited from these rights. The focus of the Charter was on “individual rights”.
2012: The Charter may be used to shield the country of Canada from the U.S. FATCA attack …
#FATCA IGA may violate Canada's constitution – interesting argument http://t.co/SfU8DJH2 – #americansabroad take note
— U.S. Citizen Abroad (@USCitizenAbroad) December 20, 2012
The Honourable Sinclair Stevens of the Progressive Canadian Party has argued that the Charter of Rights can be used to protect Canada from FATCA. According to an attendee at the recent FATCA Forum in Toronto Mr. Stevens emphasized that:
… the rights and protections of the Canadian Charter applied to permanent residents of Canada and that individuals in Canada are all equal and under the protection and benefits of that Charter regardless of race, nationality, ethnic origin, etc. He state unequivocably that Canada MUST obey the Charter (which would never allow for FATCA’s discriminatory parameters). He is a very well-spoken and articulate man and I was very impressed with his strong words and message about the importance of the Charter.
Prime Minister Trudeau would not have imagined that the Charter might be used to shield Canada from the U.S. FATCA attack. Talk about the law of unintended consequences … ! S. 15 of the Charter may be used to prevent the Government of Canada from entering into a FATCA IGA.
In other words, instead of the Government of Canada saying NO to FATCA, Canada will not enter into a FATCA IGA (which is what it should say):
S. 15 of the Charter may possibly be used for the Government of Canada to say:
No Canada will NOT enter into an IGA, because S. 15 of the Canadian Charter of Rights prohibits us from entering into an agreement with you that discriminates on the basis of citizenship and/or national origin.
Here is the text of Charter S. 15 (1):
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Although S. 15 does not specify citizenship has a ground of discrimination the Supreme Court of Canada has included citizenship has a prohibited ground of discrimination. For the Government to help the IRS seek out U.S. citizens is to deny Canadians who are U.S. persons the equal benefit of privacy laws. (Now for the lawyers reading this, I realize that Charter S. 1 and the override are possible issues.) That said, the starting point in the analysis is the likely violation of S. 15.
Of course, S. 15 applies only to governments. Therefore, it may prohibit the Government of Canada from entering into a FATCA IGA. The Charter of Rights applies to government activity and would not affect the conduct of the banks and other FFIs. The prudent course would be to NOT sign the FATCA IGA and let Canadians see how their financial institutions are willing to betray them to the IRS.In other words:
For the government to sign an IGA is to give the Canadian banks the license to betray Canadians! This is another reason why there can be no IGA. Let the banks betray Canadians at their peril. Let the banks deal with the lawsuits. Let the banks absorb the costs! Let some banks advertise that they are a “FATCA Free Bank”.
The Financial Institutions are subject to provincial human rights codes that prohibit discrimination based on citizenship. It is up to Canadians to hold the Sun Life and Bank of Nova Scotia s of the country accountable.
There are many reasons why Canada must say NO TO FATCA.
Imagine the Charter of Rights being used to protect Canada as a country from the U.S. led FATCA attack! Great example of unintended consequences …
This is an excellent reminder of why ADCS was created and why the Charter Challenge must succeed. Discussions here at Brock often stray very far afield so it’s important to come back to home base to refocus our attention on the one facet of our dilemma that the Canadian government has the power to fix. Part 5 of Bill C-31 (2014) can, should and must be repealed. It is the antithesis of our Charter rights, our privacy rights and Canada’s sovereignty rights.
Australia does not have a Bill of Rights/Charter of Rights. I remember a U.S. person in my first year here pointing this out as a weakness in the Australian system of government. Only law based of precedents. I did not think anything of it.
There is Australian Privacy Principles, yet exception was made in case of international agreement, making way for the FATCA IGA.
Go ADCS! Set the example!
One issue(and this is why I comment here infrequently) is that news and activity regarding FATCA and CBT tends to run in cycles with short bursts of intensive activity and then very long stretches of little news or activity unfortunately. Personally this pattern can drive me neurotic.
The IGA passed because the Harper government made it so a bill only needed a 5% chance of passing constitutional muster.
A bill recently tabled in the House of Commons seeks to remedy this (at least going forward):
Charter Statement – Bill C-51: An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act
Tabled in the House of Commons, June 6, 2017
The Minister of Justice prepares a “Charter Statement” to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice’s most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.
A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.
A Charter Statement is intended to provide legal information to the public and Parliament. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.
The Minister of Justice has examined Bill C-51, An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act, for consistency with the Charter pursuant to her obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill.
What follows is a non-exhaustive discussion of the ways in which Bill C-51 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.
Bill C-51 is aimed at enhancing the Charter-consistency of federal laws in a number of ways. First, it imposes a new duty on the Minister of Justice to table a Charter Statement with every government bill. Second, it repeals or amends several Criminal Code provisions in order to better align them with the Charter and/or update them so they continue to be relevant in the 21st century. Finally, it clarifies the sexual assault provisions of the Criminal Code to reinforce protections for sexual assault complainants throughout the trial process, while preserving trial fairness for the accused.
Clause 73 of the Bill would enact a new duty on the Minister of Justice to table a Statement for all government bills that sets out the potential ways in which a bill engages Charter-protected rights and freedoms. This would formalize the Minister of Justice’s current practice of tabling Charter Statements for bills that she herself introduces, and extend it to all government bills.
The Statements are intended to inform Parliamentary debate as well as the public more generally about the implications of new legislation from a Charter perspective. The Statements would be accessible and as plain language as possible, with a view to promoting increased awareness and public discussion of the Charter. Charter Statements would provide legal information – not legal advice – to Parliament and would be tabled in the House of Parliament in which a bill is introduced.
The purpose of the proposed new duty is to enhance the protection of Charter rights by requiring the Minister of Justice to provide information systematically and proactively about the potential Charter implications of all government bills. The Minister of Justice’s Statements would become an additional resource available to support Parliament in its consideration of bills and would help foster informed debate of the key Charter issues raised by proposed legislation. This would encourage ongoing consideration and discussion by Parliamentarians and the public of the shared Canadian values embodied in the Charter, including respect for the inherent dignity of every human being, freedom, democracy, equality, inclusion, and respect for diverse cultural, religious and group identities. It would also demonstrate a firm commitment to openness and transparency.
It would be harder on me if the level of activity was intense all the time. Sometimes it’s hard to keep up so when there are slow days it’s nice to be able to do a quick scan for something relevant and then go off to do other things. Of course, when the news drops off to zero for relatively long periods I start to worry that our dilemma has slipped into the out-of-sight-out-of-mind pit.
A Charter Statement sounds good but I think they might just attach the statement to forthcoming bills and then neither reject nor adequately amend them when needed. I’d like to see an actual Charter Sieve applied to all bills. If a bill is not at least 95% compatible with the Charter, then out it goes and it’s back to the drawing board. (What an absurdly low bar that 5% standard is.) And there should be added to that list of considerations a stringent screening for privacy and sovereignty. Also we need this to be retroactive so Part 5 of Bill C-31 (2014) can be examined again. I’m certain, if it were, it would have to be repealed.
I apologize. Your comment looked so badgeresque (a compliment) that I directed my reply incorrectly. Thanks for finding that information about Charter Statements.
“I’d like to see an actual Charter Sieve applied to all bills. If a bill is not at least 95% compatible with the Charter, then out it goes and it’s back to the drawing board. (What an absurdly low bar that 5% standard is.)”
95% is absurdly low too. Arrest 100 people on terrorism charges, take 95 of them to court and admit that there was no basis to arrest them, and leave the other 5 rotting in jail even though there was no basis to arrest them either.
@ Norman Diamond
I said AT LEAST 95% simply because there will always be grey bits in any given bill (neither black nor white) and not catching these bits in my hypothetical Charter Sieve doesn’t seem too horrible. I don’t think your 100 arrested people is a close enough analogy since 100% of each bill would be Charter tested and there’s bound to be parts which cannot be deemed either pro-Charter or anti-Charter. Sadly, like the US Constitution, Canada’s Charter is not getting the deference it deserves these days.
Ann Emmett and Rocco Galati release statement following the Supreme Court’s dismissal of ‘COMER vs The Bank of Canada.’ Published on Jun 7, 2017
Recorded on June 3, 2017 at the COMER Press Conference in Rocco Galati’s Law Offices
In my opinion this is one of the most important cases of the XXI century in Canada about one of the biggest issues the world is facing since the XX Century and that is the central banking control over nations and the issue of money.
“After nearly 5 ½ years of contentious litigation between the Committee On Monetary and Economic Reform (COMER) and the Government of Canada involving three separate Federal Court and two additional Federal Court of Appeal hearings resulting in contrary decisions, on May 4th, 2017, the Supreme Court of Canada dismissed COMER’s “leave” (permission to appeal) application from the second judgment of the Federal Court of Appeal. Following established practice, the federal Supreme Court does NOT issue reasons when it dismisses a leave application.
The dismissal by the Supreme Court of the Leave application, means only that the Court does not want to hear the appeal. The jurisprudence on this is clear: it does not mean that the lower court decisions are correct in law. The possible reasons for the Supreme Court not wanting to hear the case are many and various, including the washing of their hands or “deference” to the political process – hence, this is why reasons are not issued by the Supreme Court in leave dismissals.
We believe that the case has ample legal merit, and should have proceeded to trial. It is not uncommon for the Supreme Court to refuse leave on a given issue multiple times, finally to grant leave, hear the appeal and the case then succeeds. The Supreme Court controls its own agenda, both in its timing and on the merits of issues it will or will not hear. (Annually, fewer than 8 – 10% of all cases filed are granted permission and heard at the Supreme Court of Canada.)
It should be noted that throughout this arduous and expensive legal process, the substance of this lawsuit initiated in the public interest has not been addressed. (The matters raised by the lawsuit are summarized in the attached original news release issued on December 19, 2011.)”
For more information about COMER and the brave people behind this organization:
Other related project worth to check by Paul Heller:
Thank you for putting this up. Am examining all of it now.
Yes, thank you, Sid.
Another piece to review with regard to why the BC Civil Liberties Association (BCCLA) does not give our issue merit. I received this email today, declaring… (Canadian) Second-Class Citizenship is Dead. (I / we believe it is still very much alive for US Persons (however deemed) in Canada — and have expressed our views to BCCLA. Note the part I have bolded below.)
Thanks. Fascinating stuff and it’s good to know that a dismissal of a leave application is NOT THE END. With persistence a case can still get to the Supreme Court.
If you don’t have time to watch the whole video, please do listen to Rocco Galati talk about the importance of respecting/enforcing the Constitution. I really like this guy.
I will never understand CCLA’s lack of support for our issue
Thank you for keeping us up to date with this.
CCLA’s attitude is this: “You have money, you are not marginalized under what we deem as marginalization. You are avoiding taxes (which they assume as we don’t pay taxes to either country – jumping to conclusions) so therefore, we don’t support your cause.”
Simple fact is that CCLA is picking and choosing who they want to represent and in doing so are betraying their own principles of standing up for those who are being victimized.
It’s high time JT realized that we need OUR charter to protect 1 million plus Canadians, living in Canada, who are being hunted and haunted because of Part 5, Bill C-31 (2014).