Liberty and justice for all United States persons abroad

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CBC News article on Harper strategy of legal confrontation: important comment opportunity

Posted on by Posted in Issues regarding US persons abroad 13 Comments

There is an otherwise (see below) excellent article on CBC News webpage today, discussing how the Harper government seems bent on a confrontation with Canada’s legal system by deliberately bringing forward legislation that Justice lawyers advise have only even a 1% chance or slightly higher of surviving a constitutional or Charter challenge.

Harper government strategy of confrontation with courts

I am a retired federal public servant who occasionally worked with Justice lawyers on legal matters and legislation though not in the Department of Justice itself. And I am not a lawyer. But — I do know from personal experience and discussion with Justice lawyers back then, that the Harper government approach, putting forward legislation that career lawyers in Justice doubt has even a 1% chance of surviving a court challenge, is a complete reversal of the standard used by all previous federal governments under which I served, including the three Progressive Conservative governments of Clark, Mulroney and Campbell.

The article lists, near the bottom, several recent pieces of legislation likely to be challenged in court and unlikely to survive court scrutiny. Disturbingly, however, Bill C-31 Section 5 (the FATCA/IGA implementation provisions buried in the omnibus budget bill) is not included in that list.  CBC should have known to include that, given past stories and contacts we’ve had with some of their news writers.

This is an opportunity for Brockers and Sandoxers to blog a CBC story and to help raise reader awareness of the Charter and other legal issues that Harper and crowd have patently been ignoring re the IGA and FATCA. It also helps explain the careful choice of words the Finance officials were using in answering Opposition questions about Justice review of the legislation’s constitutionality under the Charter. My suspicion is that the advice that Justice gave Finance is that the probability the legislation could survive a Charter challenge was maybe more than 1% but probably not a lot more, certainly no more than perhaps 10% or so I’d guess.

This raises broader issues of Harper and crowds’ total disregard for “rule of law” in Canada and misunderstanding of the role our courts are supposed to play under our constitution, parliamentary democracy, and the Charter.

I’ve posted my own comment to the above effect in the story, still awaiting CBC moderation though. There are already hundreds of comments, most extremely critical of Harper and Justice Minister Mackay on this point, but I didn’t see any other FATCA related ones than mine, though I don’t pretend to have the time nor patience to wade through all those comments to check.

Another excellent reason to vote ABC (Anybody but the Conservative) in the next election, as well as another opportunity for Brocker and Sandbox bees to swarm and post to raise Canadians’ awareness of the issue.

I was born and educated in the US. After completing my post-graduate education, I entered Canada on a temporary work permit, moving to Canada because of the Vietnam war. Shortly after unpacking, I applied for landed immigrant status. A few months later I received in the mail an induction notice from the US Army; I drew a peace symbol on it in felt marker pen and mailed it back. As a result, I was indicted and a warrant was issued for my arrest (both were quashed in 1977 by the Carter amnesty). I became a Canadian citizen in 1975. In 1976, for the US Bicentennial I wrote a political letter to Henry Kissinger, then Secretary of State. In it I mentioned that I had "renounced" (I didn't then know of "relinquish") my US citizenship on becoming a Canadian, explaining in several pages my reasons for leaving the US. I also mentioned the fact that on my mother's side I am a descendant of a soldier who fought in Washington's army during the US rebellion, but now I was declaring my personal independence from the US and rejoining the British Commonwealth. Within six months, I received by mail a CLN recognizing my having expatriated myself from the US in 1975. I filed away my CLN and forgot I had it, until I found it after searching for it upon learning of FATCA and OVDI in August 2011. Since then, I proudly keep a photocopy of it with my passport (which is Canadian; I have never had a US passport in my life, nor will I ever). As a Canadian who long since ceased being an American and who has a CLN, I am not directly affected by FATCA or other US taxation outrages. However, my wife and several of her friends are affected, until their relinquishment CLNs (dating from 30-40 years ago) are issued. Also I have several close friends who were born in Canada of US parents and are considered by the US to be US citizens, though they have never lived in the US, worked there, earned income there, held property there, held US passports, or in any other way excercised USC and are horrified they might be considered US. I am active on this website and in writing my elected Canadian politicians about these issues, on their behalf. I am a retired former employee of the Government of Canada who faithfully and proudly served his adopted and adoptive country for many years. Updated September 2, 2012: earlier this week, my wife finally received her relinquishment CLN, State Department formal recognition that (in their exact words on the CLN) she "ceased to be a US citizen on" the date she became a Canadian more than 35 years ago. Mission Accomplished, to borrow words from my least-favourite contemporary/contemptible American. I will continue to monitor this website from time to time to see if I contribute useful information or opinions, but my wife and I are determined to regain our lives after the past twelve months of angst. Best wishes to all of you on this website in your odyssey toward freedom from the US.

13 thoughts on “CBC News article on Harper strategy of legal confrontation: important comment opportunity”

  1. “He argued that Ottawa has a duty to introduce charter-compliant legislation — or, at least, tell the public when legislation doesn’t pass the test.

    The government disagreed, saying that it only needs to do so if legislation is “manifestly unconstitutional, such that no credible argument exists in support of it.”

    What is the credible argument in support of a FATCA IGA? “We had no choice”? Hardly credible.

  4. Here are my comments posted on that cbc.ca site, currently awaiting moderation:

    “Two other items that may face challenges: Bill C-31, which implements the US FATCA law, would turn over private financial data of Canadian citizens to the US IRS if they are deemed to be “US persons”. This is true even if the Canadian citizen is deemed a “US person” against their will and has had no connection with the USA in decades or ever. This is clear discrimination on the basis of national origin and will soon be challenged in court. See http://www.adcs-adsc.ca/ for more details.

    Although I do not believe it introduced new legislation, the Harper government also greatly changed the interpretation of the rules for Canadians living abroad for voting in Canadian elections, barring them from voting in many cases even if they aren’t citizens of and have no right to vote in the other country. This is also a Charter violation and was successfully challenged in court at the Superior Court of Ontario level but is likely facing an appeal to a higher court. See http://www.cavalluzzo.com/canadiansvotingabroad for more details.”

  7. @ calgary411
    Your comments are perfect but now sadly they are buried under a deluge of other comments, including one of mine. Could they be tweaked enough to get them posted a second time, closer to the top? (I’m not sure how adept the CBC is at spotting a double post.) The trick is to wait until things slow down but to do it before CBC closes the commenting.

  8. Thanks, Em.

    I could delete and then resubmit in a bit to bring it more to the forefront if people are viewing by “Newest”. I would risk it not showing up then at all (which I think happened to me one time before).

    In the meantime, I’ve sent Mr. Ling the following:

    From: carol tapanila
    Sent: Thursday, August 07, 2014 12:18 PM
    To: contact@justinling.ca
    Cc: James Fitz-Morris ; Amber Hildebrandt, CBC
    Subject: CBC News, August 7, 2014: “Analysis Harper government’s legal setbacks suggest strategy of confrontation — Legal conflicts reveal a clash of beliefs about how Canada should work”

    Mr. Ling,

    My comment to your excellent CBC article – but which, unfortunately, did not include in your “Looming Legal Battles? Bill C-31”. You should know about this important omnibus Bill and what was implemented in stealth by the Conservative government. Will you consider an important news piece about why and how this happened? There has been coverage regarding renunciations and relinquishments but no good journalism that covered why this has happened in Canada (along with what has happened with other Canadian Parliamentary Bills):

    Looming legal battles? Part 1 of 2:

    Please include Omnibus Bill C-31, that was hidden in this Budget implementation bill and legislated implementation of the US FATCA (Foreign Account Tax Compliance Act) to waive rights (discrimination by national origin and loss of privacy rights, among other) for approximately one million “US Persons in Canada” and their spouse, their children, their business partners. Bill C-31 made Canada’s “foreign financial institutions” arms of the US IRS. Persons designated *US Persons in Canada* become second-class to any other Canadian no matter what their national origin or the national origin of their parent(s). US Persons in Canada include children born in Canada to US parent(s) and children born in the US to Canadian parents but who returned with their parents when they were infants or children. The US taxes on citizenship. The rest of the world (except Eritrea which both the US and Canada condemn for its CBT) taxes based on residence. This has more to do with penalties for not filing for persons ignorant of the regulation rather than actual taxes that would be owed to the US. For most this requires the hiring of expensive US tax and accounting professionals. (The persons sought *originally* with US legislation, FATCA, would be persons RESIDENT in the US but sent untaxed funds offshore.) For *US Persons in Canada*, our Canadian banks, credit unions, insurance companies are not “foreign financial institutions*. They are the financial institutions that we use for our daily living requirements, including rent, mortgages, groceries — and savings for education, disability and retirement.

    Looming legal battles? Part 2 of 2:

    http://www.adcs-adsc.ca/

    Our Constitutional litigator: In April of 2014 we announced our intention to proceed with litigation against the Government of Canada, challenging its right to enact the U.S. FATCA law on Canadian soil. As a result of your support, we are delivering on that promise.

    The Alliance for the Defence of Canadian Sovereignty (ADCS-ADSC) has retained Vancouver B.C. constitutional litigator Mr. Joseph Arvay and his team at Farris Vaughan Wills & Murphy to represent us in the lawsuit.

    For anyone concerned about the loss of sovereignty of Canada and the over-territorial reach of the US into Canada, a cost to all Canadians, please become informed and help make this Charter Challenge happen.

    I posted this (as Calgary411) at the IsaacBrockSociety.ca, where you can visit to read about the ADCS-ADSC (non-profit organization) Charter Challenge fundraising re Bill C-31:

    Description of the climate seems relevant to our Charter Challenge — and why, in my mind, the Charter Challenge is so important:

    CBC News, August 7, 2014: Analysis Harper government’s legal setbacks suggest strategy of confrontation — Legal conflicts reveal a clash of beliefs about how Canada should work

    A legal cold war

    “There’s something different about the Harper government,” says Emmett Macfarlane, who wrote Governing from the Bench, about the Supreme Court’s role in Canadian democracy. He says the top court has long been known to complement, not fight, Parliament.

    Edgar Schmidt agrees that something is wrong, and he would know — he was the general counsel for the legislative branch at the Department of Justice, until he became a whistleblower and was suspended without pay in late 2012.

    He filed documents in December of that year accusing the department of working under “faint hope” — approving legislation even if it has a “combined likelihood of five per cent or less” of being upheld by the courts.

    He argued that Ottawa has a duty to introduce charter-compliant legislation — or, at least, tell the public when legislation doesn’t pass the test.

    …
    At a constitutional conference in July, he (Canadian Bar Association past president, Simon Potter) argued that if Parliament continues to be “headstrong” instead of co-operative, “then the system eventually breaks. That’s where we’re headed if we don’t get this fixed.”

    Macfarlane says the insistence on grinding the branches of government against each other betrays not just the Conservatives’ long history of distrusting the Constitution, but also a will to pick populist fights.
    …
    Looming legal battles?

    Some other recent legislation that may face court challenges:

    Bill C-13: Cyberbullying: This reincarnation of an earlier “cyber-snooping” bill would reinforce sections of the law allowing police to get Canadians’ data without a warrant. The Supreme Court has ruled that unconstitutional, but MacKay has no intention to amend it.
    Bill C-24: Citizenship: Arguably the most controversial immigration change the Conservatives have introduced, this law gives the minister the power to strip dual citizens of citizenship if they’ve been convicted of certain crimes. The Canadian Bar Association was up in arms over the bill.
    Bill C-36: Prostitution: While government lawyers say the Supreme Court will rubber-stamp their effort to criminalize the purchasing of sex, some 220 lawyers say that the bill contradicts the Supreme Court’s logic in the Bedford case.
    Bill C-14: Not Criminally Responsible: Critics are confident they’ll defeat this law, which would create a designation of “high risk” for offenders found to be not criminally responsible. The bill could mean that offenders are held in detention indefinitely.

    I will comment on Bill C-31.

    One comment to that:

    Thanks for posting this, Calgary411. My husband and I were just yesterday talking about Harper’s mental problems. It’s just a matter of time before the big cracks show up in his party.

    There was a big meeting in Squamish yesterday between government officials and business owners concerning the issues around changes to the Temporary Foreign Workers Permit. John Weston told the concerned parties to not be going to the press about what transpired at the meeting. Can you believe it? Seems Mr Weston wants to be thought of as the Fed’s “point man” for the TFW permit issue, just as he personally told me he was the “point man” for issues concerning USP’s in Canada and FATCA. We know where that went. These people are just plain creepy.

    Your consideration of covering this story would be very much appreciated. We are also either today or Monday submitting a Human Rights Complaint on behalf of *US Persons* the world over, as this is not just a Canadian *US Person* problem.

    (My story, actually the story of my Canadian-born son, has been covered by CBC in January of this year. Google CBC Carol Tapanila.)

    Regards and hoping that you will give this story the coverage it needs.

    Carol Tapanila

    Calgary, AB, Canada

  9. @calgary411

    Let’s give Justin Ling the benefit of the doubt for the moment and assume he’s telling the truth that he had limited space to write.

    Which of the other four pieces of legislation that he mentioned–C-13, C-24, C-36, and C-14–do you feel he should have bumped to make room for C-31?

  10. Dash,

    I wouldn’t have wanted him to bump any of them. He could have condensed somewhere else in his article though, I think. Like I said, disappointing.

  11. @ calgary411
    That reply from Justin Ling sounds quite promising. He could be the first of many (I hope) to cover the human rights complaint. It’s such a great initiative and I feel very guilty for not having the courage to co-sign it. After reading the government’s guidelines for financial institutions I re-realized just how vulnerable I am to doG knows what in the future and I’m not having much faith in the infamous “Flaherty promise” these days.

  12. @calgary411

    Valid point, calgary. It looks like the article was specifically triggered by a legal ruling in another unrelated matter–the mandatory victim surcharge–which happened just a few days ago–so I don’t think he can be faulted for not including C-31 / FATCA at the top of the article. But, yes, it is an opportunity to comment and it does seem disappointing he couldn’t squeeze C-31 in there somewhere.

    It looks to me, though, like three of the four bills he did choose to include were included because there is specific opinion out there publicly showing that lawyers or the Supreme Court of Canada already feel that the law is unconstitutional. We need to get the Canadian Bar Association “up in arms” over C-31 much as they are said to be “up in arms” over C-24. We need to get those 220 lawyers arguing for the right to buy sex for money arguing also for the right to a bank account! How else do they propose that one pay for the hooker, after all?

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