Category Archives: Issues regarding US persons abroad

“A Canadian is a Canadian is a Canadian.” This is a fine election slogan.  But is it not time to get rid of Harper’s law which results in the extraordinary rendition to the USA of certain Canadians’ banking account information? Are they not Canadians deserving the protection of law, just like any other Canadian? That is the meaning of the slogan.

But wait! The Younger Trudeau has also said dual citizens fall under USA authority:

Despite its good intentions, the unfortunate consequence of FATCA is that Americans who hold dual citizenship still fall under its authority, and it requires access to their financial information through their banks. As a result of FATCA, there has been a surge in US citizenship renunciations over the past few years, and this trend continues to grow.

It remains to be seen if the Younger Trudeau is just one of Obama’s Eunuchs. It is true too that le Dauphin now crowned Prime Minister promised to improve relations with Obama and the USA, and I do not see how he will please Obama by abolishing FATCA and treating all Canadians as Canadians as according to the rule of law that he cited in his debate with Harper. (Here he acknowledges that positive law may not be in keeping with the rule of law, unlike his illustrious father).

I see a lack of coherence. What will he really do about FATCA? It is a toss up. But this much is clear: it does not seem that he has really understood all the ramifications of his election slogan, “A Canadian is a Canadian is a Canadian”. This suggests a certain deficiency either in his moral or in his intellectual capacity–or perhaps as young man, he has not yet had time to think the issue through.

Here is a trailer of a French language film that came out in November last year.

Also, Bubblebustin cited a National Post commentary:

Our new Prime Minister is so much Stephen Harper’s antithesis — young, open, charming — that it’s easy to ignore the fact that he is the personification of old world power, or the closest thing we’ve ever had to it in this country.

Yet even the fact that his ascension marks the beginning of our first familial dynasty in federal politics is treated like a charming footnote, instead of what it is. It’s no coincidence that Trudeau’s nickname before assuming office was the Dauphin. Margaret Trudeau is now marked with the rare public distinction of being both a mother and a wife to a prime minister, like some kind of democratic dowager queen.

http://news.nationalpost.com/full-comment/jen-gerson-were-the-conservatives-right-to-hate-the-ottawa-establishment

RICO, short for Racketeer Influenced and Corrupt Organizations Act, is a (US) federal law enacted in 1970 as a crime-fighting tool for use against the Mafia. It includes prison sentences of up to 20 years and seizure of financial assets for those found guilty of such “racketeering.”[1]  A noble cause – who could disagree with clamping down on organized crime?  Fast-forward 45 years, and have a look at the proposed application of the RICO Act by Senator Sheldon Whitehouse (D-R.I.) against scientists who speaks out against Michael Mann, Dr. Rajandra Pachauri, and the rest of the Clime Syndicate at the IPCC.[2]

The Bank Secrecy Act of 1970 (BSA) was not intended as a way to catch those engaging in menial tax evasion, but rather as a tool to help federal prosecutors fight the worst of the worst: international criminal syndicates who were daring and powerful enough to make prosecution a nightmare. Unlike targeting your average street thug, the BSA was supposed to be a big gun capable of taking out the really tough guys. Organized crime. Terrorists. Drug cartels. The kind of people whose money could influence law enforcement with bribes and/or intimidation.[3]   Another noble cause!  Again, fast forward 45 years, and see who the US government is harassing with FBAR penalties (not to mention giving a whole new meaning to “off-shore bank account”).

Operation Choke Point is an initiative of the United States Department of Justice that was announced in 2013, which is investigating banks in the United States and the business they do with payment processors, payday lenders, and other companies believed to be at higher risk for fraud and money laundering (another noble cause).  This operation, disclosed in August 2013 Wall Street Journal story has been accused of bypassing due process; the government is pressuring the financial industry to cut off the companies’ access to banking services, without first having shown that the targeted companies are violating the law.  As reported by the St. Louis Post-Dispatch, critics believe “it’s a thinly veiled ideological attack on industries the Obama administration doesn’t like, such as gun sellers and coal producers.” [4]   Earlier this year, FDIC chairman Martin Gruenberg told Congress that Choke Point was over, but many business owners believe the FDIC and DOJ has passed enforcement duties along to a newly created independent agency: the Consumer Financial Protection Bureau (CFPB), the brainchild of progressive senator Elizabeth Warren (D-Mass.). The CFPB operates under the guidance of the Federal Reserve and doesn’t rely on Congress for funding, which critics say allow it to operate without any meaningful checks on its power. [5]

We are all familiar with civil forfeiture in the United States.  Proponents see civil forfeiture as a powerful tool to thwart criminal organizations involved in the illegal drug trade, with $12 billion annual profits, since it allows authorities to seize cash and other assets resulting from narcotics trafficking. Proponents argue that it is an efficient method since it allows law enforcement agencies to use these seized proceeds to further battle illegal activity, that is directly converting bad things to good purposes by harming criminals economically while helping law enforcement financially. Critics argue that innocent owners become entangled in the process such that their right to property is violated, with few legal protections and due process rules to protect them in situations where they are presumed guilty instead of being presumed innocent. [6]

These are just a few of many pieces of legislation, purportedly enacted to go after criminals, that are now used to prosecute, intimidate, extort and criminalize honest, law-abiding citizens.  The people acting with malevolence here are not those who these laws are being applied to, but those who are applying the laws.  Someone once said, “When governments fear the people, there is liberty. When the people fear the government, there is tyranny.”  Tyranny is defined as “cruel, unreasonable, or arbitrary use of power or control” – my question is, “are we there yet?”

The Harper government passed Bill C-24 to protect us from terrorists.  They included the IGA implementing FATCA in Bill C-31 to protect Canadian banks from debilitating sanctions at the hands of the US government.  The intention of Bill C-51 is also to protect us from terrorism.  These are all good things!  But from my perspective (I have the stink of the US on me), C-31 made me a second class citizen in my own country.  Bill C-24 provides “my government” with the potential ability to strip me of my Canadian citizenship merely because I had the misfortune to be born in the US and I have been vocal in my disdain for my treatment by the Canadian government.  Bill C-51 would ease the transfer of information between federal agencies, including confidential data (like that collected in the long form census) – of course, none of these federal agencies would even consider transferring any of this information to a foreign government!  Ask Maher Arar!

Obviously, my concern that government would ever misapply a law or share my personal information among federal agencies (and foreign governments) indicates my need to be fitted with a tinfoil hat!  Anyone would have to have been paranoid, or just plain crazy, to think laws enacted to go after the Mafia, drug cartels and terrorists would ever be applied to law-abiding citizens!

Of course, our recently elected Liberal government is obviously different.  Justin Trudeau transcends politics – if we had only had him as Prime Minister when the US demanded an IGA enacting FATCA, things would have been so different!  He would have put Obama in his place.  It was that evil Harper who caused all of our problems!  (Anyone who believes any of this paragraph is more in need of a tinfoil hat than I am).  I would point out that it is progressive policies and politicians who are predominantly responsible for this affliction.

As someone who has for the most part been a Harper supporter, I was betrayed by him (and relegated to second class citizenship as a result).  I have stated in the past on this site that I have no doubt that the Liberals or NDP would have done the same – it seems every other country in the world did.  But it was not the Liberals or NDP who had the misfortune to be in power at the time – it was the Harper government.  I have made many negative comments about Harper as a result, and voted for the Liberal candidate (Bill Casey) in my riding.

I will be watching with great interest what transpires from here.  If the Trudeau government does not get rid of the enabling IGA, will he be subjected to the same venom that Harper (deservedly) was?  Will this be an issue he even cares about?  Or will he just pay it lip service and say, “I tried, but it is Harper’s fault.”  I am concerned that such a charade would be enough to appease many on this site.  Can we get some kind of commitment from those of you on the left that, if Trudeau does not get rid of the IGA, he will be subjected to the same venom that Harper was?  One of the first things he plans to do is to cozy up to Obama – that does not bode well for us.

And if you think the long form census data will only be used for benevolent purposes, you have not been paying attention to what is going on in the world.  In the words of Ronald Reagan, the nine most terrifying words in the English language are “I’m from the government, and I’m here to help.”

[1] http://www.foxnews.com/opinion/2015/09/28/new-low-in-science-criminalizing-climate-change-skeptics.html
[2]  https://www.washingtonpost.com/opinions/the-fossil-fuel-industrys-campaign-to-mislead-the-american-people/2015/05/29/04a2c448-0574-11e5-8bda-c7b4e9a8f7ac_story.html
[3] https://www.irsmedic.com/2014/11/08/failure-bank-secrecy-act/
[4] https://en.wikipedia.org/wiki/Operation_Choke_Point
[5] https://reason.com/reasontv/2015/08/21/operation-choke-point-the-governments-co
[6] https://en.wikipedia.org/wiki/Civil_forfeiture_in_the_United_States

READ BELOW NOVEMBER 9, 2015 LETTER FROM ARVAY TEAM TO CROWN COUNSELS ON BEHALF OF PLAINTIFFS GINNY AND GWEN. We want to know the intentions of the defendants re: lawsuit by November 30, 2015.

CANADIAN SUPPORTERS: WE ALSO WANT MANY MANY MORE SUPPORTERS TO SEND LETTERS AND EMAILS TO THE NEW GOVERNMENT LIBERAL MPs.

Cross posted by John Richardson from our ADCS blog:

Munk leaders' debate: Harper, Trudeau battle over bill to revoke citizenship https://t.co/bNxTmjayQS A Canadian is a Canadian is a Canadian

— John Richardson – Counsellor for US persons abroad (@ExpatriationLaw) November 9, 2015

As you know the Conservative Government of Stephen Harper was defeated, and has been replaced with the Liberal Government of Justin Trudeau. The ADCS lawsuit was filed against the Government of Canada. The specific defendants were:

“The Attorney General of Canada and The Minister of National Revenue”.

We now have:

1. A new Government of Canada
2. A new Attorney General of Canada (Jody Wilson-Raybould)
3. A new Minister of National Revenue (Diane Lebouthillier)

Known Unknowns

The new Government of Canada has simply “inherited” the ADCS lawsuit. As a result, the new Government of Canada may decide how to instruct its lawyers to respond to the lawsuit. The new Government is NOT bound by the strategy of the previous Government. We don’t know how the new Government would have responded to the lawsuit initially and we don’t know how the Government of Canada will respond now.

Known Knowns

Prior to their becoming the Government, various members of the Liberal Party (including Justin Trudeau) indicated their displeasure with the FATCA and the terms of the FATCA IGA. In addition, Murray Rankin and Nathan Cullen of the NDP have worked very hard to derail the existing FATCA IGA. In January of 2013, Green Party Leader Elizabeth May publicly opposed FATCA. That said, the Liberals have a majority government. The Liberals have the ability to respond to “FATCA Canada” in a meaningful way. What will they do? Was their dissatisfaction real or was it political posturing?

What the Alliance For The Defence of Canadian Sovereignty has done:

We have instructed our lawyer, Joe Arvay to request that the Government of Canada provide a clear indication if it intends to respond to the lawsuit it has inherited. Perhaps a political solution an be reached.

Mr Arvay’s letter is here:

2015 11 09B ET Nygard et al_delivering letter of same date

His letter provides examples of how the Liberal Government “may” view FATCA and the IGA. You will see that he attached the letter that Justin Trudeau had written to Lynne Swanson.

This will be interesting.

John Richardson

P.S. It might be a good moment to view this again:

HERE IS THE ENTIRE LETTER:

November 9, 2015

Department of Justice Canada
900-840 Howe Street
Vancouver BC V6Z 2S9
Attention: Donnaree Nygard
Michael Taylor and Oliver Pulleyblank

Dear Sirs/Madam:

Re: Hillis et al. v. AGC et al.

Federal Court File No. T-1736-14

As you know, as a result of the federal election held on October 19, 2015, a new federal government – a Liberal majority government led by Prime Minster Justin Trudeau – has taken office. Members of the new government have on numerous occasions expressed significant concerns regarding the impact of FATCA, in particular with respect to the privacy interests of Canadians. Many of the concerns they have raised are the same or consistent with the issues the plaintiffs have identified in this litigation.

For example:

Continue reading →

Have you received a FATCA letter or been warned of the consequences of being a U.S. person?
 
Why am I getting letters from my bank all of a sudden?

The “FATCA Hunt” – the hunt for U.S. persons (whatever that is) began on July 1, 2014 which was “Canada Day”. Although both the definition of “U.S. person” and whether one meets the definition is not always clear, the search has begun. The level of FATCA awareness has begun. Some organizations are actively warning people that “U.S. Personness” matters. The purpose of the warning is presumably to encourage people to ”come clean” and deal with their U.S. tax situations. In some cases, there is no particular warning – just a letter indicating that they are suspected to be a “U.S. person”. Often one must prove to the institution sending the letter that one is not a U.S. person.
Continue reading →

In the comment stream, some used various pejorative terms to describe my last post: infantile, tin-foil hat etc. Others said that it was perfectly ok for the government to impose the long form census since safeguards are in place to protect the information and StatsCan has a good track record in that regard. Besides the government really needs this information in order to do a good job, and some argued, to realize how bad FATCA is.

I am hoping for a little more actual dialogue on the nature of the privacy invasion. You see, I am unsatisfied in this post 9-11, post Edward Snowden revelations, era, that the government make assurances that private information be kept private for the anonymous usages of StatsCan. My issue is whether the government fails to uphold one the deepest principles of English common law since the Magna Carta–that every person is king of their own castle (i.e., the Castle Doctrine). There are just some lines that government should not step over–and the only allowable reason for stepping over those lines is if the government suspects that a crime has been committed. But never ever may a government force people to divulge information that belongs to their private and personal life: e.g., how many hours you spend playing with your children.  It is completely inappropriate for government to ask these kinds of questions.

And if the government will throw you in jail for refusing to answer these kinds of questions, how much more will they be willing to violate your Charter rights by sending your banking information to the IRS? I am not impressed with our young handsome PM’s first act. I called him King, but the fact is that in the English-speaking world, the Younger Trudeau is insisting on the power that kings have been barred from exercising for centuries by the Castle Doctrine. Thus, it is a violation of natural law, and so naturally there are many people who become extremely irate over the violation of their personal jurisdiction–as elder Trudeau said, the government has no business in our bedrooms–but the government doesn’t belong in our kitchens, our living rooms nor in our children’s rooms either.

The government insists that it needs accurate information. But truly, if the government is justified in forcing people to fill out 40-page questionnaires revealing certain details of their private lives, would it not be better to collect the information just by installing cameras into their bedrooms, living rooms, kitchens, and children’s bedrooms? In this way, direct surveillance would permit for a better picture of Canadian households and provide the necessary and most accurate information for StatsCan. Be assured however that your private information will be only for the eyes of bureaucrats who need the information.

[This is crossposted from our ADCS blog by John Richardson.

— Following the negative decision of Justice Martineau in the Summary Trial, Plaintiffs Ginny and Gwen instructed the Arvay team to appeal the ruling. Consistent with Federal Court Rules, the Federal Court of Appeal was asked to permit the appeal to be heard together with all other (expected) appeals arising out of the Constitutional-Charter trial. The Crown attorneys did not object to this request and on November 6, 2015 Madam Justice Dawson of the Federal Court of Appeal granted permission to “park” (hold in abeyance) the summary trial appeal until all Charter trial appeals are heard.

As John Richardson says below, this is important because it preserves our right to appeal on arguments that might ultimately prove to be successful, and, by arguing all appeals in one hearing, will also reduce legal costs for all parties.]

A brief update:

As you know the Alliance For The Defence of Canadian Sovereignty is appealing Justice Martineau’s decision from the August 4, 5/15 hearing.

We have been successful in arranging for that appeal to be heard along with the hearing in the main Charter trial.

This is good because it BOTH preserves the right for the appeal to be heard and minimizes the costs of a separate appeal hearing.

John Richardson

Justin Trudeau, King of Canada, has issued his first edict: the reinstatement of the long census form. Minister in charge of Canadian census Navdeep Singh Bains, will jail people who refuse to divulge personal information required by the long census form:

[The Liberal government] didn’t provide details on how it plans to make sure that people actually fill it out, although Navdeep Bains, the minister of innovation, science and economic development, said “the law is the law” and the Statistics Act hasn’t changed, which suggests penalties would include jail time. Bains said restoring the long form will mean a return to solid, high-quality data.

It seems lost on Bains that saying that “the law is the law” does not make any particular action of the government morally right. Putting old ladies in jail because they refuse to fill out a form is disproportionate to the alleged crime. That it is an invasion of privacy and a violation of universal human rights makes it all the more despicable. But the new Trudeau government seems to be carrying on the tradition of the elder Trudeau’s attitude towards law, as we discussed earlier (see, Burning down barns is not wrong because it is illegal; it is illegal because it is wrong).

In the past, the government found one woman guilty of refusing to fill out the long census form. She was 79-years old.  I have seen how government persecution of senior citizens can lead to fear and sometimes premature death, as in the case of friend of the Isaac Brock Society Mark Pinetree, who lived out his final years in fear of the IRS. He was a psychiatrist who had moved back to Brazil after becoming a US citizenship, not realizing that the IRS would persecute him even though he no longer lived in the USA.

In any case, if we were hoping that the government of Trudeau the Younger would respect the privacy rights of citizens of Canada, we now have tangible evidence that the new King doesn’t really believe in privacy. This bodes ill for those hoping for the repeal of the FATCA IGA.

I have, on occasion, taken a plunge into social media to see where our beloved topic of FATCA is being discussed and/or used. There is a considerable amount of posting being done on the topic, and I think it’s important to realize that, despite the plight of U.S. persons living abroad, enforcing FATCA is actually part of the job description for those who administer the violation of our rights on a 9-to-5 basis.

Often, during my seemingly endless scrolling on sites like Twitter and Instagram, I encounter posts by individuals who live overseas and work for foreign financial institutions.

Some of these posts are simply group selfies – taken to commemorate the conclusion of FATCA trainings that are intended to help staff understand the ins and outs of reporting. Some posts are flat-out advertising for financial services to help those caught up in the FATCA dragnet.

But I came across one post recently that really caught my attention.

It was an Instagram photo – a small, black and white poster that, apparently, makes its home on the wall of a Russian bank employee’s office. (Based on what I saw of the user’s profile.)

Aside from the obvious “W8” and “W9,” the poster’s text is Russian, and the image is borrowed from a famous World War II Russian propaganda poster.

The original WWII poster, entitled “Motherland is calling!” was created by socialist realism artist Irakli Toidze. According to history, Toidze’s wife had burst into his studio to announce that the Soviet Union and Nazi Germany were at war. Her face and posture in that moment were used by Toidze in the poster, and the original text is the Soviet military oath used between 1939 and 1947.

From what I’ve read, the poster was among Stalin’s favorites (he was personally approving every propaganda poster at the time). Stalin was so moved by the poster that he  ordered 5,000 copies printed upon seeing it.

Since then, the poster has been re-purposed as propaganda for many causes – including the cause of one particular Russian bank to whimsically ensure FATCA compliance.

The literal translation on the Russian bank version of the poster is “FATCA form can’t wait!”

Below, on the paper being held by the woman, the text translates to “W 8 or W 9?”

I reached out to the owner of the Instagram account to verify the context of the poster and they responded with: “actually it’s a joke, re soviet motivation poster) the direct translation is: “FATCA for [sic] does not wait! Form W8 or W9?”

That’s some joke.

The fact that a Russian bank has a “motivational” poster hanging in an office to envourage staff to get a W8 or W9 from suspected U.S. persons is interesting, to say the least. More like painfully ironic, given the context of the original poster.

Despite the overtones and irony of the original World War II poster, I think it shows a perspective of FATCA that we don’t always see – that of everyday people who are simply doing a job they aren’t in a position to question – much like the job of those whom the original poster was meant to “call,” I suppose.