Blaze and I have sought advice on how best to proceed with a legal challenge to Canada’s proposed IGA legislation to implement FATCA.
The advice received from legal people we consulted is that the first step should be to obtain a “warts and all legal opinion” on the merits of a challenge and that Joe Arvay, given his expertise and credibility, is the one to do this.
Please provide your comments and suggestions to this proposal, originally posted on Sandbox:
http://maplesandbox.ca/2014/possible-charter-challenge-legal-opinion-needed-and-funds/
“As most of you know, the possibility of a challenge under the Canadian Charter of Rights and Freedoms has been discussed for some time.
With the signing of the IGA and proposed legislation to override existing Canadian laws, we need to determine our next steps.
http://www.fin.gc.ca/treaties-conventions/pdf/FATCA-eng.pdf
http://www.fin.gc.ca/drleg-apl/2014/can-us-eu-0214l-eng.asp
Prominent Canadian constitutional lawyer Joseph Arvay has reviewed the IGA and the proposed legislation. He has recommended as the first step a formal legal opinion to advise if a challenge would have a reasonable possibility of success. In his letter to me (real name and address removed)
http://maplesandbox.ca/wp-content/uploads/2014/02/Mr-Arvay-Opinion-Letter.pdf
Mr. Arvay said
“You have asked for our opinion as to whether or not a challenge to any proposed legislation would have a reasonable prospect of success. Our initial review of the proposed legislation indicates that there may be a serious question as to whether it would withstand constitutional scrutiny once enacted. We question whether the proposed legislation is compliant with the Charter of Rights and Freedoms or whether it violates protections under the Charter against discrimination based on national origin or citizenship, against unreasonable search and seizure and against deprivation of liberty except in accordance with the principles of fundamental justice. We also question whether the proposed legislation falls validly under the federal jurisdiction over taxation, or whether it is in substance regulation of financial institutions in which case federal jurisdiction is limited to regulating banks but not provincially regulated financial institutions such as credit unions.”
IRSCompliantForever and I have communicated with four other lawyers. They all agree a legal opinion should be our next step before proceeding further.
Mr. Arvay’s letter also says
In order to answer those questions, a proper opinion needs to be prepared. We are prepared to prepare this opinion for a fee of $15,000 plus applicable taxes.
So, the cost for this legal opinion would be $15,000 plus tax, which would bring the cost for the opinion to around $17,000. To many, that cost for an opinion probably seems steep.
However, the four lawyers agree that this is a very reasonable cost and is far below what they would expect we would pay for a formal legal opinion.
To put the costs in perspective, we would need one contributor at $17,000 or 17 contributors at $1,000 each or 34 contributors at $500 each or 100 contributors at $170 each or 170 contributors at $100 each or a combination of those or other amounts. (Due to the administration, we would request donations of a minimum of $100 each.)
We should aim to raise more than that amount for contingency and administrative purposes.
There is agreement among those that we have contacted–including with a senior legal expert–that Mr. Arvay would be an excellent choice for a Charter challenge.
The next step is to decide a) Do people want to proceed with this? b) Do people want to retain Joe Arvay for a legal opinion? c) Are people willing and able to contribute to the costs?
Many individuals have asked if Canadian Civil Liberties Association could assist with the case. Abby Deshman has advised each case must go through an individual approval process. When CCLA becomes involved:
The general mode of operation is as an intervener, requesting the court add CCLA to the ongoing case as a friend of the court. Normally, the case is already going forward with the parties independently represented. As a non-profit, we unfortunately do not finance others’ legal cases, and in general are not in a position to represent individuals in launching legal actions.
Ms. Deshman, however, has advised it is possible CCLA might be able to provide some assistance with legal research.
Please advise if a) You agree we should seek this legal opinion b) if you would be able to contribute (we will request a minimum donation of $100).
Someone is researching ways we might raise and administer the funds if people do want to proceed and are able to contribute.
If the case proceeds beyond the legal opinion though the courts, the costs will, of course, increase greatly. We are not able to say exactly what the costs would be, but we expect they could be $100,000 to $250,000 or more.
You should note that after we receive a legal opinion, we will not be able to publicly share the details of the content or post it on line. This is for strategic reasons and to ensure confidentiality of the position the case may take before the courts.”
@petros
“However, no one in the world knows the US tax law’s impact on Canadians better than John Richardson.”
I agree completely. I just met for an hour with him privately just 3 hours ago and I would have no problem trying to convince him to take this case if he would agree. Again, he feels what we feel and has proven his worth as a Canadian patriot and advocate for basic charter rights and knows this issue inside out. I repeat….JOE ARVAY does NOT know this issue inside out nor has he lifted a finger so much as to go across the street to help any of us. All he ever did was put me off a half dozen times or not even answer some emails I sent (some). All one needs to know is John has helped hundreds of us in a very personal way face to face. Has Joe? Blaze, back off on this in my opinion. Let Joe PROVE his worth to us and the country.
FWIW, given what IRSCompliant just said and reported from Richardson, I think their proposal of Arvay makes sense and is what I’m willing to contribute to.
I don’t normally “do” Paypal, but can if necessary. I have no problem, either, writing a personal cheque once I know to whom to make it out.
I don’t quite see the “anonymity” problem here. Unless you’re donating to some identified terrorist organization, which isn’t remotely the case here, you have a legal right to give away your money to whomever the hell you want, and your signature on a cheque, or a credit card slip, or a Paypal authorization, doesn’t constitute an indicia of US personhood in any document I’ve seen or any sane interpretation of any of those documents. Besides, IRSC and Blaze aren’t going to publish a list of names of contributors anywhere, and thinking that the IRS or CRA or NSA or anyone else has the time, ability, motivation, and resources to go chasing after signatures on $100 cheques or whatever would be stretching paranoia to the clinically certifiable, IMO. Please everyone, take a deep breath, count to 20, and get a grip.
@IRSCompliant. I had a face to face conversation with John an hour or so earlier. He is being too humble in my opinion. I think I can read between the lines and yes he may feel that Hogg (“he’s out”) and Arvay maybe the best but why would he announce that he himself is the best? That would be blowing his own horn. He IS as qualified and can put together a team that might include Joe but for the reasons I mentioned downthread I believe John Richardson has demonstrated hit 100% commitment to US for months and months, city after city at his own volition and expense and therefore if he would even consider acting for us we should encourage this. I don’t feel right about giving one red cent to a person who has such little regard for us, letting us suffer all this stress and all manner of side effects not lifting a finger. I am adamant about this. He should do it free. This case could have over 1 or 2 maybe more million complainants and be the biggest ever rights case and he wants 15,000.00 for WHAT? An opinion he likely has 90% formed anyway? We need a HERO, not another lawyer with NO EMOTIONAL ATTACHMENT who seemingly doesn’t feel our pain.
Folks do not commit to sending money to anyone until a hero steps forward, a white knight.
I can’t say I know many lawyers, but one impression that I have received from them is that a lawyer in one area has limited knowledge outside of that area. If you have patent issues, you get a patent lawyer; if you’re in a divorce, you get a divorce lawyer; if you have citizenship woes, you might get an immigration lawyer, etc, etc.
To put it a slightly different way: if you were accused of murdering your spouse (we’ll assume you’re innocent, if it helps), would you get a family law lawyer to defend you or a criminal lawyer? I know which I’d get.
Every aspect of a discrimination case would depend on what US citizenship based taxation and reporting requirements do to Canadian citizens and why they need protection from it. Arvay is a charter rights litigator. Richardson knows US citizenship based taxation. If Arvay is the lead attorney, we may have to pay him to learn what John knows. John is also a knowledgeable expert on citizenship issues. As I said earlier, Richardson is experienced with Charter rights issues. However, if John is not willing to do this, that’s the end of the matter.
IRSCompliant and I would like to assure people the lawyers we consulted are familiar with the multitude of complexities and issues involved with FATCA. They agree a formal legal opinion from Joe Arvay would be a good next step.
@ChearsBigEars I am not pushing anything. IRSCompliant and I did research and made a suggestion. We asked people in the post: a) Do people want to proceed with this? b) Do people want to retain Joe Arvay for a legal opinion? c) Are people willing and able to contribute to the costs?
We will respect the input we receive and whether people are willing and able to contribute the funds.
Will respect your choices re who to retain, will contribute to the cause.
must go with someone with specific challenge experience, i have paypal.
Has anybody contacted Elizabeth May to set up the fund to make the challenge?
@shubert…., others
” you have a legal right to give away your money to whomever the hell you want,”
Yes and there are many many of us (not me btw) who are covered and need to give away whatever they have in excess of 2 million dollars. One of these people could do a world of good when the time comes.
I would like to see a fund raising drive to keep John Richardson on the road with his seminars. That’s whats needed right now. He’s the ONLY lawyer familiar with and qualified in these matters that is doing anything to help us.
Blaze and Compliant…..have you met either of these lawyers and if so please tell which ones. Thank you
At the request of the other lawyers, we are unable to share their identities.
We are confident in their knowledge, skills, commitment and advice. I can assure you they are of the same calibre as John Richardson and have a high level of ethics.
I wish we could share more information than that, bo
Sorry, I accidentally posted that before I finished.
The last line should have been but we can’t.
Blaze, I asked you if you have met John and been to any of his seminars. He is more qualified in spades of what Joe is. Joe has shown no spontaneous effort to help any of us. John has busted his butt and with his own money, save donations, to help us in every way he can even at the expense of health, sleep etc. He is DEVOTED to this cause. JOE AVRAY is devoted to what may I ask? I am positive that your asking for funds, even a small amount such as 15,000 when it is not necessary shows people here who is devoted to this cause and who is interested in money. I do NOT agree that no one provides services for free. Any constitutional lawyer worth his salt and values our country and charter should be totally embarrassed to ask for money to render and opinion on something this important to the whole country and in my opinion lawyers should be falling all over themselves to be a part of what could be THE most important case in Canadian history. Blaze the fact that you don’t see this makes me very suspicious. Tell us all, what has Joe done for any of us? PLEASE ANSWER THIS. Does he feel for us? What has he done to prove it?
Now PLEASE stop this silliness. People that have seen John in action know that he knows more than anyone in this country or the USA about the issue as he lives and breathes it. Joe does not IMHO. well I should say IMO. Now please stop the silliness.
Did Joe have any part in submissions to Congress? Has everyone here seen this? If not they should read it to get a feel for the 3 authors
https://isaacbrocksociety.ca/2014/01/27/todays-must-read-us-senate-finance-committee-submission-by-john-richardson-willard-yates-stephen-kish/
Read the actual submission
http://citizenshipsolutions.ca/wp-content/uploads/2014/01/RichardsonYatesKishJan232014SFCSubmission.pdf
Based on this alone we should beg John to launch an action in our behalf. I would be sad indeed if we hired a lawyer unemotionally attached to this case because emotion will win the case and public opinion
BTW the NaziSA is at it again
http://thehill.com/blogs/hillicon-valley/technology/199075-lawyers-protest-nsa-snooping
@blaze
“At the request of the other lawyers, we are unable to share their identities.”
Wow that fer sure is going to strike fear into that Cheeseburger munching piglet in Ottawa
I disagree. I was at the session on Saturday. Maybe it was jet lag but it was one of the worst presentations I have ever suffered through.
Are they on this list?
http://www.lawyerlocate.ca/lawyers/canada_subs.php?category=1&subcategory=17
Christopher Henry Kozlowski
Kozlowski and Company
5065 Forest Hill Drive
Mississauga, Ontario
L5M 5A7
Phone: (905) 569-9400
William R. Gilmour
Barrister & Solicitor
1 Royce Avenue, Suite 3
Brampton, Ontario
L6Y 1J4
Phone: (905)451-6682
Leora Shemesh
Barrister & Solicitor
559 College Street, Suite 202
Toronto, Ontario
M6G 1A9
Phone: (416) 944-8111
R. Mitchell Rowe
R. Mitchell Rowe
Place Laurier, 170 Laurier Avenue West, Suite 606
Ottawa, Ontario
K1P 5V5
Phone: 613 567 1405
Paul Champ
Champ & Associates
43 Florence Street
Ottawa, Ontario
K2P 0W6
Phone: 613-237-2441
Arghavan Gerami
Gerami Law PC
130 Albert Street, Suite 802
Ottawa, Ontario
K1P 5G4
Phone: 613-695-4529
MIchael Alexander
BT10 Networks
1200 Bay Street, Suite 304
Toronto, Ontario
M5R 2A5
Phone: 416-923-1104 , ext. 238
Stewart Gillis
Gillis Zago PC
200 Main Street North
Brampton, Ontario
L6V 1P1
Phone: 226-929-5014
Daniel Cooper
Marcil & Cooper
6600 Trans Canada Hwy, Suite 150
Pointe-Claire, Quebec
H9R 4S2
Phone: 514 694-0013 , ext. 224
Billeh Hamud
Hamudlaw: Labour, Employment and Human Rights Law
401 Bay Street, Suite 1600
Toronto, Ontario
M5H 2Y4
Phone: 416-646-4921
Brendan Myers Miller
Walsh LLP
2800, 801 6th Avenue S.W.
Calgary, Alberta
T2P 4A3
Phone: 403-267-8467
Marvin J. Huberman
Barrister, Mediator, Arbitrator
70 Bond Street, Suite 500
Toronto, Ontario
M5B 1X3
Phone: 416-646-1372 , 301
Daniel Monteith
Monteith Baker Johnston & Doodnauth
227 Eagle Street East
Newmarket, Ontario
L3Y 4X1
Phone: (905) 895-8600
Benjamin J. Kormos
Walsh LLP
801 6 Avenue SW, Suite 2800
Calgary, Alberta
T2P 4A3
Phone: 403.267.8459
Harry S. Mann
Mann Law Barristers & Solicitors
920 Derry Road East
Mississauga, Ontario
L5T 2X6
Phone: 905 565 5770
Walsh LLP
Okotoks Office
15 McRae Street, Suite 205
Okotoks, Alberta
T1S 1A7
Phone: 403-267-8400
Peter R. Lack
Barrister and Solicitor
505 René-Lévesque Blvd W #1250
Montreal, Quebec
H2Z 1Y7
Phone: 514-875-8181
David B. Cousins
David B. Cousins
425 University Avenue, Suite 203
Toronto, Ontario
M5G 1T6
Phone: (416)977-8871
Robert (Bob) W. Buckingham
Bob Buckingham Law
81 Bond Street
St. John’s, Newfoundland
A1C 1T2
Phone: (709)739-6688 , Toll-free at 866.739.2256
Jeremy Richler
Barrister & Solicitor
151 Yonge Street, 11th floor
Toronto, Ontario
M5C 2W7
Phone: (647) 775-8423
Moe F. Liebman
Liebman L�gal Inc.
1 Westmount Square, Suite 1500
Montreal, Quebec
H3Z 2P9
Phone: (514) 846-0666
Pulat Yunusov
Pulat Yunusov, Barrister and Solicitor
330 Bay Street, Suite 820
Toronto, Ontario
M5H 2S8
Phone: 416-628-5521
Alexandre Martel
Martel Law Office
595 Montreal Road, Suite 107
Ottawa, Ontario
K1K 4L2
Phone: 613-688-2938
Cell: 613-762-8505
James Cameron
Raven, Cameron, Ballantyne & Yazbeck LLP/s.r.l.
220 Laurier Avenue West, Suite 1600
Ottawa, Ontario
K1P 5Z9
Phone: 613-567-2901
Adam Eidelmann
Eidelmann Law Firm
352 Avenue Dorval, Bureau 207
Dorval, Quebec
H9S 3H8
Phone: (514) 538 – 6966
Guy P. Nephtali
Avocat
60, Rue St-Jacques Ouest, Suite 700
Montreal, Quebec
H2Y 1L5
Phone: 514-303-0770
Michael Maddalena
Burchell MacDougall
255 Lacewood Drive, Suite 210
Halifax, Nova Scotia
B3M 4G2
Phone: (902)445-5511
Ben Millard
Symes Street & Millard LLP
133 Lowther Avenue
Toronto, Ontario
M5R 1E4
Phone: 416-920-3030 , 416-920-4430
Gordon Zlatko Bobesich
Barrister-At-Law
6505 Mississauga Road, Suite C
Mississauga, Ontario
L5A 1N5
Phone: 905-858-4030
Peter M.B. Eberhard
Eberhard Law Office
151 City Centre Drive, Suite 201
Mississauga, Ontario
L5B 1M7
Phone: 647-525-BAIL (2245)
David Varty
Varty & Company
555 Burrard Street, Suite 900
Vancouver, British Columbia
V7X 1M8
Phone: 604 684 5356
Patrick Joseph James
Pinto Wray James LLP
393 University Avenue, Suite 2000
Toronto, Ontario
M5G 1E6
Phone: (416)703-2067 , ext. 216
Aaron Harnett
Aaron B. Harnett, Barrister
880 Broadview Avenue
Toronto, Ontario
M4K 2R1
Phone: (416) 960-3676
Antonio P. Raviele
RAVIELE VACCARO LLP
969 Eglinton Avenue West, Upper Village Law Office
Toronto, Ontario
M6C 2C4
Phone: 416.364.5200 , ext. 22
Martin J. Siscoe
�tude L�gale Martin J. Siscoe Law Office
470 Murray Avenue
Bathurst, New Brunswick
E2A 1T5
Phone: 506-546-4448
Larry W. Keown
Devry, Smith & Frank LLP
95 Barber Greene Road, Suite 100
Toronto, Ontario
M3C 3E9
Phone: (416) 446-5815
Saul B. Simmonds
Gindin Wolson Simmonds
363 Broadway Avenue, Suite 1200
Winnipeg, Manitoba
R3C 3N9
Phone: (204)985-8180
@Duke of Devon
Ok Lets see Joe’s presentation. John has a cold BTW which is why he wouldn’t shake my hand if you noticed. Or let’s see YOUR presentation?
Let’s rate the presentations we have so far.
Who wants to start?
Ok me:
Let’s see Peter Hogg = 0
Joe Arvay= 0
Murray Rankin = 3
John Richardson = 9
Joe has won many “landmark” cases hmmmmm like safe injection sites, (No Americans allowed as they are unsafe) , sperm donors, Expat Americans will be denied this too), sex workers (No one wants to marry and have sex with Americans these days so what good is this one?) and last but not least assisted suicide which if someone doesn’t put an end to the Obama-Harper regimes no doubt we are going to need ;-((
– I am not concerned about the issue of an (unlikely in my opinion) tax receipt. Often groups seeking/advocating changes to government policy cannot qualify for / or lose their registered charitable status because of their advocacy and social justice and social change activities.
– I don’t do Paypal (and as a related aside for those for whom this might pose a problem, this is not advice, but this was interesting from Phil Hodgen http://hodgen.com/irs-pursuit-of-offshore-accounts-now-via-paypal-credit-cards/ ). Sorry to throw in another potential complication.
As for the issue of open online discussions of the end result of a legal opinion – Flaherty, and Harper and Co. did not share the opinion/s or advice they got from the DOJ – in fact, no real useful information about their consultation with the DOJ was divulged in the mostly redacted documents that Blaze FOI’d and posted here: http://maplesandbox.ca/2014/finance-canada-244-pages-access-to-information/ and the non-answers from the Harper government sent to MP Hsu here http://maplesandbox.ca/2014/finallly-a-response-but-few-answers-to-ted-hsu-questions/ http://blog.tedhsu.ca/2014/01/28/government-responds-to-my-fatca-question/ and to MP Brison http://taxpol.blogspot.ca/2014/01/canadian-government-responds-to-fatca.html
Information is power. The Harper and Flaherty FATCA-enablers withheld ALL FATCA related information from the Canadian citizens, residents, taxpayers and accountholder public they are supposed to be protecting and serving. Information they obtained and which was paid for with OUR public taxes. They withheld the information because they could, and in order to gain advantage, and to do whatever they chose – regardless of the sizable and predictable harm to Canadians and their families. And they would prefer to operate without the drag of even any largely symbolic pseudo-democratic process. The obscure notice on the Ministry of Finance site was probably so that they could say that they ‘consulted’ or gave ‘notice’ to the Canadian public. I note that in Flaherty’s FATCAspinning statements http://www.carp.ca/2014/02/22/federal-minister-finances-message-carp-members-canada-won-privacy-protection-exemptions-relief-fatca/ , he has chosen to sell the FATCA IGA as containing ‘privacy’ protection, but note that he chooses not to mention it in the context of the Charter, or of trade and foreign relations agreements like NAFTA. There is a reason for that.
You don’t share the information you gather and pay for with the opposition.
I don’t think anybody has mentioned this but why not use crowdfunding to get the $17K. Indiegogo is the most popular site. This is where they raised $200K to try to buy Rob Ford’s crackpipe. Crowdfunding has the potential to collect much more than $17K because if word gets around to the million duals in Canada there is a huge pool of potential donors. It is also managed by the company, for a 4% commission if the goal is reached, so no need handle many individual donations.
Importantly, donations can be anonymous: http://support.indiegogo.com/entries/20440977-How-to-Contribute-Anonymously
Actually not the crackpipe, but the video of him smoking it (which the Toronto police have now anyway).
@ kermitzii
Crowdfunding has been mentioned. Both Kickstarter and Indiegogo are US based which presents some complications. If this were the only way to contribute I would be left out because I will not use Amazon payments or Paypal. I have a cheque already dedicated to this opinion funding and I am eagerly looking forward to finding out where to send it. We have great Brockers working hard to make this happen. I trust them and know they will work this out for all of us.
http://www.theglobeandmail.com/report-on-business/small-business/sb-digital/web-strategy/a-kickstart-to-raising-funds-on-kickstarter/article4105948/
I acknowledge full ignorance about John and Joe, But if one is a top-notch Constitutional lawyer and the other is totally aware of the “US Person” and “US Tax Law” issues, is it totally obtuse to consider asking them to work together?
Yes, this may cost us a bit more than the $17,000, but it sure sounds like there are a lot of folks out there willing to put their money on the line – – and such fund-raising is just getting started in that regard. With efforts to expand our contacts, to inform a greater range of US expats and others (think US expats in other countries too), I think there will be a lot of folks out there that, if approached, would add to the pot – – USC and expat renunciates AND CDNs!
It’s just my opinion and will be interested in other’s views.
On a totally separate topic, I really need to share: Today I received confirmation of my Renunciation appt at the Consulate; it’s been scheduled for the afternoon of April 15. For most of you, this may mean nothing & will be just another date on the calendar. But, as a Jew, I was literally struck dumb by the coincidence of this date – – April 15 is the 1st day of Passover this year (celebrated for 8 days) – – the Festival of Freedom from Slavery!!!!! How weird and wonderful and serendipedous is that???? I think I will drink a couple extra cups of sweet wine that evening!