Liberty and justice for all United States persons abroad

The Isaac Brock Society

The extradition process – Part 5: As a matter of administrative law, the Supreme Court of Canada seems unlikely to review extradition orders

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On December 14, 2012 the Supreme Court of Canada, in the unanimous decision in Sriskandarajah v. United States of America, 2012 SCC 70, [2012] 3 S.C.R. 609 authored by (then) Chief Justice McLachlin, confirmed the extradition of Suresh Sriskandarajah to the United States. The decision was short, to the point and expressed the court’s view that extradition decisions were within the discretion of the Minister Of Justice. The crux of the decision appears to be paragraph 33 which includes:

As explained above, the Minister’s order of surrender is a political decision that attracts a high degree of judicial deference. The Extradition Act confers broad discretion on the Minister’s decision to extradite

In other words, the presumption is that, the Supreme Court of Canada will NOT review extradition orders.

It’s as though, the US Canada Extradition Treaty means that:

1. The extradition request from the United States is mechanical (even though none of the conduct occurred within the United States); and

2. The willingness to extradite an individual from Canada to the United States is mechanical.

It appears that individuals who are the subject of an extradition request from Canada to the United States, have fewer legal protections, than do individuals charged with a crime in Canada …

It’s almost as though, the extradition process is designed to circumvent (or at least “water down”), the protections (such as they are), that individuals are afforded if their trials take place in Canada.

Interestingly (and predictably), when extradited to the United States, Mr. Sriskandarajah pleaded guilty, preferring the certainty of a two year period of incarceration, to the maximum which would be sought should he have suggested that he was innocent. The Canada US extradition treaty appears to be a way that the United States can export its version of criminal law into Canada. One wonders whether Canada should even have an extradition treaty with the United States. Conrad Black considers this in a recent article …

On December 14, 2012 (the day the decision was released), Mr. Sriskandarajah was completing his first semester at a Canadian law school. He is now apparently back in Canada and (having completed law school) seeking a license to practise law in Ontario.

Justice McLachlin’s decision was short and joined by the rest of the judges. Of most significance (I think is) …
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The extradition process – Part 4: The Meng Wanzhou Extradition Case Demonstrates The Similarity Between Extradition Treaties and The #FATCA IGAs

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Part A – The Similarity Between The FATCA IGAs and Extradition Treaties

CBC has produced an excellent ten part podcast called “Sanctioned”. It is very well done and explores the Meng Wanzhou arrest and extradition process to the United States. As you know, at the request of the United States, Canada arrested Meng Wanzhou for extradition to the United States. The result of arresting Meng Wanzhou was that China arrested two Canadian citizens and passed a death sentence on a third. In the spirit of retaliation China has imported fewer Canadian products – resulting in economic hardship to Canada and individual Canadians. Furthermore, Meng Wanzhou’s lawyers have argued that Canada violated Meng Wanzhou’s Charter rights. The suggestion is that Canada has made the appeasement of the United States a priority over protecting Canada’s values and the rights of Canada citizens.

Shades of the FATCA IGAs. By entering into a FATCA IGA, Canada has harmed Canadian citizens for the purpose of doing the bidding of the United States. The US Canada extradition treaty has placed Canada in a similar situation. Should Canada appease the United States at the cost of damaging its own citizens? The Meng Wanzhou case has an additional dimension. Should Canada – in a global world – damage its economic relationship with China in order to appease the United States?

The FATCA IGAs and the Extradition Treaty are very similar in three key ways.

First: In both cases the United States is using an “agreement” to require Canada to send something to the United States. In the case of the Extradition Treaty, the United States is demanding a person. In the case of FATCA, the United States is demanding private information about a person. Should the FATCA IGAs be viewed as (in substance) as being an Extradition treaty for information? (In the case of information, Jenny’s FATCA UK lawsuit has demonstrated that US FATCA demands override key provisions of the GDPR.)

Second: Notice that in both the FATCA IGAs and the Extradition treaty, the United States is imposing US law on Canadian soil. (In the case of FATCA there is no reciprocity. In the case of the Extradition treaty there may or may not be reciprocity.) Specifically, the FATCA IGAs export Chapter 4 of the Internal Revenue Code into Canadian Law (Part XVIII of the Income Tax Act of Canada). In the case of the Extradition Treaty the United States is asking Canada to accept the claim that the violation of a US sanction against Iran meets the standard of “dual criminality”.

The United States is using extradition treaties to export US criminal law to other countries:

When the U.S. France extradition treaty was sent to the U.S. Senate for approval, President Clinton noted that:

The United States recognizes the extraterritorial application of many of its criminal statutes and frequently makes requests for fugitives whose criminal activity occurred in foreign countries with the intent, actual or implied, of affecting the United States.

Third: In both cases the agreements with the United States override rights afforded to individual Canadians under Canadian law. On the most basic level, the FATCA overrides statutory non-discrimination provisions found in provincial human rights codes. Parts 7 and 8 of the CBC Podcast series describe how Meng Wanzhou’s lawyers make the case that her Charter rights were violated at the outset.
Clearly, one must ask the following questions:

Should countries violate the rights of its own citizens in order to appease the United States?

Should the United States be permitted, through the use of international “agreements” to lower the level of individual rights to the level afforded to American citizens generally?

Should Canada, (as do many other countries) reserve the right to NOT extradite its own citizens?

Should the FATCA IGAs be amended so that the accounts of Canadian citizens resident in Canada are not subject to the FATCA IGAs? (Notably the Canada/US tax treaty includes a provision that provides that Canada will not help the US collect US tax debts on Canadian citizens.)

The broader context of the US extradition demand of Meng Wanzhou

It’s shocking that the United States can (1) unilaterally pull out of the Nuclear agreement with Iran then (2) impose sanctions against Iran in accordance with US law and (3) use Extradition Treaties to require treaty partner countries to seize individuals who happen to be physically present in their territory. It’s obvious that Meng Wanzhou has violated no law of Canada.

Extradition Treaties: A View From The Homeland

A short but interesting presentation conducted by Amy Jeffress (the lawyer for Anne Sacoolas) is here.

Conclusion: The United States is using international “agreements” for the purpose of “planting Old Glory” in other countries.

Part B – On To The CBC Podcast Series “Sanctioned”

At the very least I suggest that you listen to Episode 8 which may be found here.

https://www.cbc.ca/listen/cbc-podcasts/365-radio-sanctioned/episode/15738680-episode-8-the-rule-of-law

MARCH 30, 2022 FATCA IGA LEGISLATION TRIAL HAS BEEN HELD AT CANADA’S FEDERAL COURT OF APPEAL: We wait for the decision in 4-6 (?) months — Crown argued that FATCA turnover is minimally intrusive, just like a T5 slip — Our side still disagrees.

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Our FATCA IGA litigation trial DEEGAN ET AL. v. ATTORNEY GENERAL OF CANADA ET AL., Court file number A-370-19, has just been held in Canada’s Federal Court of Appeal on March 30, 2022.

At the trial Canada’s lawyers argued that there was no significant Charter 8 (privacy) breach to the Canadian FATCA IGA legislation, especially since Canadians who the U.S. deems to be US persons, already have to comply with US tax law. We continue to feel differently.

Decision expected to be made in 4-6 (?) months.

Thanks to our Appellants Gwen and Kazia and to all of our supporters, over many years, who made it possible for us to get to the Appeal Court.

CANADIAN FATCA LITIGATION UPDATE —

LITIGATION PROGRESS: This is a lawsuit, begun in 2014, challenging the constitutionality of Canada’s FATCA IGA legislation, which was imposed on us by a foreign country, and which violates the privacy rights of Canadians (see our ADCS website).

The Trial (with three Justices) in Canada’s Federal Court of Appeal was held on March 30, 2022.

Our four ADCS Board members are John Richardson (co-chair and legal counsel), Patricia Moon (Treasurer), Carol Tapanila, and Stephen Kish (Chair).

The Canadian FATCA hunt and turnover are NOT hypothetical.

This year the CBC (Canadian Broadcasting Corporation) told us that financial data on 901,000 accounts were turned over to the U.S. in 2019 and also discovered that most of the data did not have to be turned over under the so-called FATCA “agreement”:

“According to information released by the CRA in response to an access to information request, the account balances in 615,000 of the 901,000 records the agency transferred to the IRS in 2019 were below $50,000 U.S.

The year before, 610,000 of 900,000 accounts the CRA reported to the IRS fell below that threshold…

[This means that] The Canada Revenue Agency has been reporting hundreds of thousands of Canadian bank accounts to the Internal Revenue Service, despite the fact that they fall below the mandatory reporting level set in an agreement between Canada and the United States…

Mathieu Labrèche, spokesperson for the Canadian Bankers Association, said their members are simply following the [FATCA] law.”

John Richardson responded to this CBC article:

“The people impacted by this are your middle class neighbours who you have known for years. They are Canadian citizens living in Canada. They have a lingering/technical US citizenship because of the accident of a US birthplace. But, that’s it.

It’s bizarre that a subgroup of Canadian residents (identified by a US place of origin) could be subject to stricter reporting obligations to a country they don’t live in (USA) than to a country they do live in (Canada).

It’s clear that FATCA serves no public policy objective. It simply imposes costs and regulations on Canadian residents. The Government of Canada needs to end this agreement!”

For more details on our lawsuit see: Alliance for the Defence of Canadian Sovereignty

The extradition process – Part 3: The concept of “dual criminality” – How does it apply in the Meng Wanzhou case?

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Prologue:

https://twitter.com/proctor_jason/status/1263555886922022918

__________________________________________________________________________

Introduction:

In March of 2020 I began a series of posts on extradition. In the first I noted that “As The World Becomes Smaller, Extradition Becomes Bigger“. That post discussed the growing prevalence of extradition and noted the recent cases of Julian Assange (UK), Meng Wanzhou (Canada), Ruhollah Nejad (France) and Michael Lynch (UK). In each of these cases the United States is seeking the extradition of individuals to the United States. The case of Anne Sacoolas is an example of Britain seeking the extradition of a U.S. citizen from the United States to Britain. That post also included the assertion that:

The United States is using extradition treaties with other countries, to require those other countries to arrest and extradite individuals for crimes which did NOT occur in those countries or in the United States. To put it another way, the United States apparently sees extradition treaties as way to facilitate it’s role as the world’s “Lone Ranger” – scouring the world for people it doesn’t like – with every treaty parter playing the role of “Tonto”. (Apparently, “Jay Silverheels, who played The Lone Ranger’s sidekick Tonto in the TV series and movies, was born to a Mohawk chief on the Six Nations Reservation in Brantford, Ontario …”. This would make Canada a natural “Tonto” in the use of extradition treaties to police the world.)

When the U.S. France extradition treaty was sent to the U.S. Senate for approval, President Clinton noted that:

The United States recognizes the extraterritorial application of many of its criminal statutes and frequently makes requests for fugitives whose criminal activity occurred in foreign countries with the intent, actual or implied, of affecting the United States.

In Part 2 of my extradition series, I described the Canadian extradition tools and process.

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Andrew Scheer asked the right question when he asked whether a Canadian Politician could be an American citizen

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The Globe and Mail was the first to break the story about Andrew Scheer’s dual Canada US citizenship. Mr. Scheer’s US citizenship generated a number of comments on Brock.

The above tweet references the follow-up article in today’s Globe and Mail. I believe it’s unlikely that Mr. Scheer ever started the process to relinquish US citizenship. But, who really knows?

A couple of thoughts:

1. The comments on the Globe article are accelerating. Interestingly not a single comment so far has addressed the issue of US citizens being subject to IRS jurisdiction. Is it tolerable for a Canadian MP (including a Party Leader) to be a “US citizen”? The problem is that dual citizenship in general is not the same as dual citizenship when one of the citizenships is US. The difference is that US citizens are (as we all know) members of the World’s Premier “Tax, Form and Penalty Club”. Should Canadians tolerate a situation where their Prime Minister (or any MP) is subject to IRS jurisdiction?

2. Is it possible that Mr. Scheer implied/recognized that US citizenship is different from other citizenships. An August 13, 2005 blog post from Mr.Scheer included:

Quick Questions

I have a few quick questions for anyone who thinks that Michaelle Jean is a good choice to be our next GG.

1) What are her qualifications? What experience does she have that would assist her to carry out her duties as our head of state, including the potential to be a referee in a minority government situation?

2) Does it bother you that she is a dual citizen (France and Canada)? Would it bother you if instead of French citizenship, she held U.S. citizenship?

3) It is being reported that her husband is quite chummy with some FLQers belonging to the same group that killed Pierre Laporte. If her husband was quite friendly with Al-Queda terrorists, would that be alright?

Is Mr. Scheer recognizing that not all citizenships are the same? For the purposes of being a Party Leader (and potential Prime Minister), is Mr. Scheer implying that there might be a difference between American citizenship and French citizenship?

He may or not be implying that there is a difference.

The reality is that no country, except the United States, should tolerate a head of state who holds US citizenship.

France does not threaten its citizens abroad with penalties.

When it comes to #FATCA, the questions include: What did the EU know and when did they know it?

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Do FATCA And The CRS Conflict With Europe’s GDPR Regulation? – A Europe Centric Basis For Attacking The Automatic Information Exchange Mechanisms Of The 21st Century

Legal attacks on the FATCA IGAs have attracted the attention of individuals and law firms in both Canada and the United States. The FATCA Canada lawsuit began in 2014. Jenny’s FATCA UK attack was organized in 2019. Jenny’s UK based challenge rests largely on the the claim individuals in Europe (courtesy of the GDPR), have rights to their personal information and that automatic information exchange violates those rights. (Europe takes privacy rights more seriously than America. Still, it has been difficult for Jenny to raise money for her lawsuit.) The ADCS FATCA Canada lawsuit is based on different legal principles. Regrettably, Canada does not have a GDPR. As a result the ADCS plaintiffs must argue that the FATCA IGA violates the general provisions of Canada’s Charter of Rights and Freedoms. On the other hand, the UK does not have a written and entrenched Charter of Rights and Freedoms. Therefore, Jenny’s lawsuit is contemplated to proceed on the basis of a breach of the GDPR. (The GDPR is new legislation and it’s impact is a live and evolving story.)

Additionally, it’s worth noting that the two lawsuits are based on philosophically different assumptions:

– the FATCA Canada lawsuit seeks to strike down the IGA and enabling provisions of Canada’s Income Tax Act in their entirety; and

– the proposed FATCA UK lawsuit does not assume that automatic bank information sharing provisions are bad per se, but that FATCA and CRS are excessive and go beyond what is necessary (proportionate) to achieve their goals.

This does NOT mean that the Canadian and UK attacks on FATCA are not relevant to each other. For example, a conclusion that the FATCA IGA violates Europe’s GDPR, would support an argument that the FATCA IGA violates various provisions of Canada’s Charter of Rights. Similarly a ruling in Canada that the IGA conflicts with Canada’s Charter of Rights would provide support for the “lack or proportionality” that is required by the GDPR.

Both the Canadian FATCA lawsuit and the UK FATCA lawsuit should be supported by all people (a diminishing number) who believe that individuals should and do have rights. A recent post at Brock described the “Pincer Attack” on Americans abroad, led by Chip Harter on behalf of US Treasury and former Prime Minister Of Italy – Paolo Gentiloni – on behalf of the EU. The “Gentiloni Doctrine” officially introduced the world to the principle that:

1. The United States can claim any European as a US citizen; and

2. Once claimed to be a US citizen, that individual is subject to US worldwide taxation.

The “Gentolini Doctrine” suggests strong European support for FATCA and the FATCA IGAs.

The purpose of this post is two-fold. First, (A) to discuss the claim that FATCA and the CRS conflict with Europe’s GDPR. Second (B), to consider the extent to which Europe has been complicit in FATCA and for how long.

Part A – FATCA And The CRS Meet Europes’s GDPR

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From @HelenBurggraf: Homelanders denied CARES Act benefit based on Marriage to noncitizens sue Trump Administration

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Continuing to chronicle the life and times of the FBAR Marriage. In my last post I noted that Homelanders were about to learn why Americans abroad have known for years. Specifically that, the United States doesn’t like it when a US citizen marries an alien. Admittedly, a marriage between a US citizen and a resident alien is far less offensive than a marriage between a US citizen and a nonresident alien (the latter providing significant opportunities for tax evasion). There is no mistake. Congress continues to take steps to punish those who marry noncitizens. The latest attack has been the denial of CARES Act benefits to those who file jointly with an alien spouse who has no Social Security Number.

Americans abroad may be happy to accept this unfairness. But, apparently certain Homelanders are not. As reported by Helen Burggraf at American Expat Finance, the Trump administration is on the receiving end of lawsuits.

Two lawsuits were filed in the U.S. on Friday against President Trump and other key U.S. government officials over the denial to certain American taxpayers of their right to receive CARES Act “Economic Impact Payments” because they are married to non-American citizens who, though taxpayers, don’t have Social Security numbers

A third lawsuit, being brought by the Mexican American Legal Defense and Educational Fund on behalf of six American citizens who say they were denied the payments for the same reason, was filed on Tuesday, April 28, against the federal government in a Maryland court, according to an Associated Press report.

One of the Friday lawsuits was filed in the U.S. District Court for the Northern District of Illinois, Eastern Division (in Chicago, pictured above) by Blaise & Nitschke, P.C., which is alleging that these American taxpayers’ civil rights are being violated, and which is demanding that the U.S. government “declare their rightful entitlements under the CARES Act, and afford them the equal protection of our country’s laws”, according to a summary of the lawsuit posted on the firm’s website.

Accompanying Blaise & Nitschke in bringing the suit, on behalf of “plaintiff John Doe, individually and on behalf of the proposed class”, is Khalaf & Abuzir, LLC, which specializes in immigration law. The named defendants are Trump (“in his official capacity as president of the United States”); CARES Act sponsor and Republican Senator Mitch McConnell; and U.S. Treasury Secretary Steven Mnuchin.

Read the article and enjoy.

Americans abroad have lived with the consequences of the #FBAR Marriage for years. Now Homelanders are learning what it means to be married to a non-citizen

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Introducing the FBAR Marriage – A Marriage Between A US Citizen And A Non-citizen

In the early years of Brock I wrote a number of posts about the problems and difficulties caused by the “FBAR Marriage“. In it’s most basic terms, the “FBAR Marriage” is a marriage between a US citizen and an alien (non-citizen).

A January 3, 2014 comment at Brock included:

It doesn’t matter if you are in or out of the country where the USG is concerned when it comes to “foreigners” as spouses. My Canadian husband was routinely harassed by US Border guards when we were dating and it wasn’t until he told them that I was emigrating north as opposed to him coming south that it stopped. The USG simply hates extra-territorial dating/mating. The higher tax rate is a way to punish us though for not coercing our spouses into filing jointly so they too can be USP’s for taxable purposes. They see our marriages as tax evasion and while I would rule out entirely that someone somewhere at sometime may have married a non-USC for that purpose, I seriously doubt that the percentage of “mixed” marriages have tax issues to thank for their existences.

The Two Kinds Of FBAR Marriages – Determined by the immigration status of the alien (noncitizen) spouse

Some thoughts on each …

Type 1 – A US Citizen is married to a “resident alien”: A “resident alien” (AKA Green Card holder) will have a US Social Security Number and will be taxable on Worldwide income. It is probably more common for Homelanders to be married to resident aliens. The Type 1 FBAR Marriage is less offensive to the US Government. After all, the presumption is that “resident aliens” actually live in the United States, are subject to worldwide taxation and reporting and will become US citizens.

Type 2 – A US Citizen is married to a “nonresident” alien: A “nonresident” alien does not have a Green Card. (If a nonresident alien lives in the United States without a Green Card or other kind of visa that nonresident alien is an “illegal” (and subject to a whole new set of tax penalties)). It is probably more common for Americans abroad to be married to nonresident aliens. The Type 2 FBAR Marriage is extremely offensive to the US Government.

Marriage can be difficult – For both Americans Abroad and Homelanders, the “FBAR Marriage” is particularly difficult

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Citizenship and the rights of individuals in International Law: The Universal Declaration of Human Rights

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Introduction – What about the rights of individuals in International Law?

I have recently written two posts here and here discussing how countries interact and respect the sovereignty of other countries. Specifically those posts have discussed how countries respect each others sovereignty in the areas or citizenship and taxation. Neither of these posts considered the rights of individuals (do they matter at all?). This omission was reflected in (at least) the following two comments:

Where in this subject comes the human rights issue, the freedom to choose one’s citizenship? Has the EU Court of Human Rights ever issued a statement on this question?

Okay, then, what about all those defectors from the USSR and other East Bloc countries? How come their obligations to Moscow, etc. weren’t respected? Did these countries not possess sovereignty? Does being a refugee or asylum seeker trump the obligations of citizenship in the state from which one has fled?

The purpose of this post is to outline (in a very basic way) the development of international agreements (perhaps not treaties) and protocols, where nations agreed that individuals should have rights (sounds radical doesn’t it). Note that the focus in this post will be on agreements among countries that recognize individual rights associated with citizenship (and other kinds of rights).

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