UPDATE SEPTEMBER 19, 2015: SEE ALSO DISCLAIMER AND LITIGATION UPDATES.
[This post, which began in May and having over 1000 revisions and 2000 comments, is being retired from service and updates. It lived through the success of reaching a total of $500,000 in donations from our kind, dear supporters who had little money to give, the hope and disappointment with the summary trial decision, and the certainty that we are now finally moving on to the Charter trial.]
CANADIAN CHARTER TRIAL UPDATE:
— We have instructed the Arvay team to prepare for the “Constitutional-Charter” trial. This means that our focus now, as it was in the beginning of our lawsuit, is on the Charter trial.
Unless there is a new expense in the future that we have not anticipated, the monies from your donations will be sufficient to take us through the “constitutional-charter” trial in Federal Court. However, to pay other legal bills we will need additional donations from our supporters, and a request for donations will appear on another post soon.
OUR LITIGATION HISTORY:
One year ago, on August 11, 2014, Litigator Joseph Arvay filed a FATCA IGA lawsuit in Canada Federal Court on behalf of Plaintiffs Ginny and Gwen, the Alliance for the Defence of Canadian Sovereignty (en français), and all peoples.
Because of a Government delay we initiated a “summary trial”, using a portion of the arguments, which offered the possibility of preventing private banking information from being turned over to the IRS before September 30, 2015. See Alliance’s Claims, our Alliance blog, and AUGUST 4-5 SUMMARY TRIAL FILINGS in LITIGATION UPDATES.
People, we need a brocker swat team that stamps out and corrects “dual citizen.”
Its clinging nationality and involuntarily imposed citizenship.
@ADCS, @Gwen, @Ginny, @Stephen Kish @John Richardson and all else…….
I sense all of you knew the long odds on round one….it was the proverbial Hail Mary Pass but the groundwork for that was/is part of the groundwork for the Charter phase.
Still, I know you are gutted just like I am and all of us are.
The best thing I can do is to mail a special donation which has been put in an envelope and will go out today.
I hope starting up the donation mill is a sign of encoragement for all of you!!!
I’ve only had time to quickly scan Justice Martineau’s decision.
I expect that the Arvay team will provide a commentary and strategy.
Suggest there be an aggressive, public and timely statement from the Arvay team to the media about taking this to appeal.
Key to this: what is the status of ADCS war-chest?
Was $500K a blanket fee to go all the way to SCC?
There are silver linings to this cloud:
– It paves the way for an appeal to the Supreme Court of Canada (SCC). Justice Martineau’s final comments are practically an invitation to proceed based upon the broader Charter issues.
Getting leave to appeal should be easy; Martineau has practically ensured this by the reservations included in the final sections of the decisions.
– Also, there is no bar to appealing the narrow but substantive technicalities of the Martineau decision.
– By its very nature as Canada’s highest court, most of the cases heard at SCC are appeals of cases where a lower court ruled.
– This case has shined a light on the issue and generated more publicity.
– I have always held that many of the Canadians affected by FATCA – and the US imposition of taxes upon anyone in world born in the US regardless of where they actually live and work – are ignorant of its true consequence. THis may be a wake-up call
– As the FATCA machine gears up to impose threats and penalties on so-called “US persons in Canada” who have the temerity to hold local financial accounts, there will be more awareness, fear and concern … and likely defiance and blowback as well.
– The FATCA machine will automate threats against a entire class of Canadians, and in many cases these will be threats that it in reality have no actual mechanism of enforcement. This will create dissent, anger and contempt.
– The definition of a so called “US person in Canada” is a foreign state’s law, and is in direct conflict with s.15 of our Charter – the Constitutional law of Canada. At the heart of this case is the conflict between a remote foreign law and proximate Canadian Constitutional law.
– See “Andrews v Law Society of British Columbia”
https://en.wikipedia.org/wiki/Andrews_v_Law_Society_of_British_Columbia
In that case, the SCC focused on the prohibition of discrimination …
I am sick in the stomach at this unjust decision.
Yet, this was not the primary objection to FATCA.
FATCA is wrong because it violates the Charter of Rights of most countries (including Canada) and the Sovereignty of all countries. FATCA creates a sub class of humanity (those with US Taint), imposes massive compliance costs on every person on earth and puts all persons at risk world wide as their personal data becomes more commonly distributed electronically and thus more “hackable”. Undoubtedly people’s data is going to be made available (whether by leak or deliberate action) to “bad actors” and those people will be put at risk of personal physical harm. Yet this line of argument was not for this Round 1 hearing. The sad part is that the damage will already have been done, the method of endangerment instituted, before this case gets to the Charter Challenge stage.
The Canadian system is a failure at best. The country has changed and is now heading for a complete shutdown when every person, every company finds out what this will do to them, the country will have to shut down to protect itself. We struggled to meet the 500,000 first cost of litigation. Every person I run into that thinks the Cons are great, have no idea about the USA takeover of Canadian banks. To this day, I still have one family member who thinks I am making this all up. Without FULL support of ALL affected people and the rest of Canada, we will continue to struggle.
It would not have mattered because the enemy would have appealed anyway. We all knew this would finally be decided by the Supreme Court of Canada.
why bother fighting this. it will go to the supreme court and Harper forces the judge to squash everything .
Just like he did too Justice Martineau. This country like many others is not a democricy buit a dictatorship.
We pretend it is a democricy but it is not. I could have guaranteed Justice Martineau said no to this. 100% guaranteed. We could find out that the PC party is molesting children and all we would get from the courts is
yes that’s true but really there is nothing we can do because the U.S. and Obama told us that we have no say
in our own country. The U.S is broke and we need Canada to pay our bills for us. And the PC party says yes, lets make Cdns suffer so we can keep the Americans happy. Because, of course, Canadians put our PC politicians in power to make Canadians suffer.
We must hang in there and try to keep our spirits up. If not for Brock I would be a total basket case. Thank you to all of you for helping me to try to keep sane.
while this decision is not what we all have been hoping for I don’t think it was totally unexpected. and after reading all 46 pages to my untrained legal eye not all that bad for us.
like has been said many times before this is not a sprint but rather a marathon.
I am going to keep living my life as I have been…..as a Canadian……I will not travel to amerika, I will not file any paperwork with amerika, I will make them come to me rather than raise up my hand and say “here I am oh kind master” what paper work do you want me to fill out.
I will be going out today and get a larger bird cage and a larger bird just in case I start to get some mail in the coming months. can never be to prepared eh? 🙂
Unless you tell them where you are and/or remain at a Chartered Bank or renew your US passport, no one with be getting any mail.Just not going to happen
Stephen and the ADCS team:
I await the results of your deliberations on how to move forward. On the positive side, I have to believe, along with Wondering, that Justice Martineau’s ruling is merely a gate through which we had to pass on our way to the Supreme Court where the FATCA IGA will be truly and surely skewered on the horns of our Charter of Rights. Unfortunately, thanks to the ruling, it may be our own financial lives that are skewered first as our long road to freedom winds its slow and painful way to that future date.
I wish you and our legal team all the wisdom in the world to determine the direction of our path.
@ Joe Smith EXACTLY
and therefore I refuse to live in fear of a foreign country while being a citizen resident of Canada.
if perchance I do happen to some how get a brown envelope it will fit nicely in the bottom of the bird cage along with all the other junk mail I receive.
while I did have a desire to travel more in amerika that desire is non existant. I now have no reason to ever cross the border and there fore have no reason to interact with any sort of amerikan authority.
I have been a citizen of Canada since 1980. I have moved the great majority of my banking to a “local client based” credit union. the rest will be moved when the time comes. I live simply and only have one rrsp account and after speaking to my account manager (who has managed this account since 1992) he could care less if I were from amerika or mars.
I will continue to help fight this fight but I will be damned if I will ever make it easy for them to get me!
I feel bad for the people that have to travel to americka for personal or business reasons. that is a totally different set of problems than for me who only would be going there for vacation reasons.
it has been estimated that there are close to 1,000,000 people in Canada effected…..that means there are 1,000,000 different circumstances attached to reasons for doing one thing or doing another.
we each have to determine our level of risk attached to our decision and then go on and live our lives according to our decision.
I am not going to live my life in the fear of a foreign gov’ts rules while I am a Canadian citizen living in Canada.
Dismayed.
Sigh.
On to round two….
If your bank asks, can’t you just say NO?
On Sept 23rd the IRS will be bombarded with hundreds of thousands of financial documents with no US ID numbers, no SSN’s, TIN’s, etc. Information on people that the US has never heard of, but might possibly, maybe, or maybe not, be a “US PERSON” according to their Canadian financial institution.
Good luck with sorting that out, IRS.
Yes, you can say no. According to the State Department, no request for a CLN is necessary for a relinquishment. PERIOD. Probably best not to go to Disneyland.
@George
I really appreciate your comment about how we all feel. But, and this is a BIG but, I am not in the least dissuaded. Not one bit. This is not really, a technical case about the Tax Treaty and the IGA. That could be argued to eternity and there would always be some unclear, nit-picky way of seeing it to be valid from either side.
This is a Charter case. And while I am not saying Charter cases are easy, in a sense, this IS simpler to see. Discrimination? yes, without a doubt. I trust Peter Hogg. And for all the hogwash about international information sharing and so on, this is not about that. FATCA is an imposed, extraterritorial law that clearly violates Canadian sovereignty (as well as all other countries’ as well). It is not an agreement in the sense of the OECD model. US citizens alone are ferreted out and countries have experienced threat of a sanction. At some level, countries have to come to terms with this.
The idea that we would be expected to stop because something is a “law” is ludicrous. I am sure nobody expects we will do that!
And bless you George, for your generosity. You are a peach!
A BIG Thank you to the ADCS team for all of your hard work. The judgement is a huge disappointment but we will move on.
I hope that ADCS and the Arvay team will provide an update on what the next steps are and give a possible timeline.
@ Everyone
The most damning evidence that the IGA violates Canadian law is in the Canadian Charter of Rights and Freedoms. (Remember Peter Hogg’s letter?) Those issues were not debated at the summary trial. They are reserved for the SCC.
http://elizabethmaymp.ca/wp-content/uploads/peter_hogg_fatca.pdf
You’ve got it, Wondering.
One more veil is lifted off the hideous CBT. Watching FATCA in action will only drive home how hideous it really is, that is unless the IRS coyly decides not to aggressively pursue its non-residents. Unfortunately, the mere threat of its enforcement will send many into the open arms of the compliance industry. I can almost see them circling right now.
Thank you Gwen, Ginny and others like them, such as mettleman, who provide the courage to do otherwise – as many surely will!
It’s unfortunate that ADCS was unable to find a plaintiff who was born in Canada. Not that it should make a difference from a discrimination point of view, but it would be easier for the general population to understand the egregious nature of CBT and FATCA. As a result of FATCA, many of these accidentals cannot now avoid being pushed into a system that prior to FATCA the IRS had no interest in pursuing. Is this helping the U.S. exercise its right to tax its citizens, Justice Martineau?
If one takes the money factor out of the equation and the fact that nations have been strong-armed by America to accept FATCA and treat its citizens as chattel of another country- it is so obvious to all of us that this is a violation of the Charter and human rights. The big question is: is this game rigged?
@Marie,,,,,,Thanks for the link to the Peter Hogg letter. A very good read.
“Judicial courage requires that judges uphold the Rule of Law.”
That made me puke. He would have had courage if he found an argument to do the right thing. i.e. find an argument to block the transfer of data because it would have been the right thing to do, knowing that the trial would continue anyways. Just to prevent irreparable damage from happening.
Say on the argument that the data transferred was obviously to aid in collection since the account balances were to be transferred, as opposed to just income.
Or that they were transferring the data of family members who had nothing to do with the fact that they spouse was a US Person.
That judge had no courage. The judicial system in Canada is no better than the US.
What prevents the Canadian Government from discarding the constitutional issues using section 1 or 33 of the charter (the nonwithstanding clause). Why don’t they just do it now and save us the cost of a lengthy charter challenge. Does there have to be a trial for that clause to be invoked?
Just disgusted.
As another ‘dual national’ once said: We shall never surrender.
Section 33 can be used to override sections of the Charter that are being violated only if there is a compelling enough reason and if it’s for the greater good. The Charter could be used to defend hate speeches and child pornography as freedom of expression, but section 33 would quickly put an end to that (for good reason). Peter Hogg argued in his letter to Finance that helping a foreign country with it’s tax issues would not withstand Charter scrutiny.