Thanks to Mr. A for writing this letter and posting it as a comment, originally on the ADCS thread.
Dear Ms O’Brien,
You are quoted in a recent article in the The Lawyer’s Daily (“Federal Court of Appeal dismisses Charter challenge to CRA-IRS agreement to share banking info”, Oct. 4/22) as describing the appellants as “US citizens who happen to live in Canada”.
That may be one way to describe them, but it is distorted and misleading. What if the appellants are also Canadian citizens? What if they have lived in Canada for most or all of their adult lives? What if they have no meaningful connection to the US?
Should their US place of birth and (imposed) US citizenship take precedence over their Canadian citizenship?
People with these personal circumstances are a significant part of the group that the FATCA Charter challenge represents, and are more accurately described as “US born Canadians who live in Canada”.
Approximately 20% of Canadians were born outside of Canada. Should this minority of Canadians have their Charter rights violated just because they were not born in Canada? The Canadian government did not believe so when Eritrea tried to tax Canadians of Eritrean origin several years ago. The Harper gov. expelled an Eritrean diplomat from the country. And yet when the USA is the offender it is allowed.
Eritrean diplomat ordered out of Canada after ‘tax’ on ex-pats
Foreign Affairs Minister John Baird has ordered Eritrea’s consul general, Semere Ghebremariam O. Micael, to leave Canada by June 5, and said whoever replaces him must be prepared to play by the rules.
FATCA violates sections 7, 8 and 15 of the Charter. And yet the perceived risk to our banking system (threat of 30% penalties on US source income to Canadian banks) is the reason that the Court has ruled against the appellants. The financial and economic power of the US takes precedence over the Charter rights of Canadian citizens living in Canada.
You acknowledge that the US is an “outlier in international taxation” with its system of taxation on the basis of residence and citizenship. Yet you are silent on the injustice of this citizenship taxation. Would you wish to have your personal private financial account information reported to a foreign tax service purely on the basis of your place of birth? Would you pay taxes (and accounting fees) on your Canadian earned and taxed income to a foreign country just because you were born there?
You call FATCA a “valid US law that has a legitimate purpose”. This is true when trying to prevent tax evasion by US citizens who reside in the USA. It is an unjust law when applied to citizens and residents of other countries. “Offshore” financial accounts for US residents are local accounts for residents of other countries.
Yet the most that you can do is suggest that FATCA may amount to “extraterritorial overreach”.
Look at the public uproar that forced StatCan to back down on its plan to collect data from some bank accounts anonymously.
And yet the Court and people like yourself feel that FATCA account reporting of a minority of Canadian citizens/residents is not unconstitutional. You must be more forthright and honest, and admit that FATCA is unconstitutional for Canadian citizens living in Canada (who also may happen to be US citizens), but when it comes to American economic power and extortion, Charter rights are overridden.