Canada is a Westminster Parliamentary democracy. Historically it has had a constitution (British North America Act) which defined how Canada was to be governed. In simple terms: the Federal Government has the jurisdiction to legislate in some areas (example criminal law). The Provincial Governments have the right to legislate in other areas (property and civil rights). These laws are made by democratically elected legislatures. Prior to the Canadian Charter of Rights and Freedoms (April 17, 1982), the only limits on the legislative bodies were jurisdictional. Any law could be enacted. It was just a question of whether it was the Federal Government or the Provincial Government that could enact the law.
In 1982 the Charter of Rights became part of Canada’s constitution. The Charter imposed limitations on the powers of elected legislatures. In other words, there were certain areas of activity that were presumptively beyond the reach of legislatures.
The Alliance For The Defence Of Canadian Sovereignty FATCA lawsuit is a Charter of Rights lawsuit against the Government of Canada. Our claim is the Government of Canada does not have the right to enact the legislation which requires banks to (1) Search for customers who are U.S. citizens and (2) then turn their account information over to the U.S. Internal Revenue Service. In general terms the arguments are based on the theory that by so doing the Government of Canada has violated Charter Rights which include the:
- S. 15 Equality rights; and
- S. 8 rights against unreasonable search and seizure
Essentially the court will be asked to rule that the laws enacted by a democratically elected legislative body (the Parliament of Canada) violate the Constitutional rights of Canadians.
In other words: Does a democratically elected legislature prevail or do the rights of individuals prevail?