The “Summary Trial” hangover – Friday morning August 7/15
Yup my head hurts. I have a splitting headache. I don’t feel well. I can’ eat. I am not going to be able to work today. But, my “hangover” is not from too much alcohol. It’s from listening to and thinking about too much law. Too many statutes. Too many stupid arguments. Too much “splitting hairs”. Too many poorly written statutes. Too much uncertainty over what statue applies to who and when. It’s just too much. But, that’s what law is and what legal arguments are about.
This week I sat with about 20 people in a courtroom in Vancouver listening to a bunch of high priced lawyers and a judge (largely through written statements) talk about and try to apply law. I’m not even sure what I was doing there or what events in my life brought me there. After all, I was 1 of about 20. (There may be a reason there were only 20 people there.)
It begins in August 1977
So, in August 1977 I was just about to start law school. (It’s true. My classmates were Archimedes and Plato. Both passed law school.) I wanted to become a lawyer. I had respect for law. I clearly assumed that somehow law reflected standards of basic morality. During that time (like most law students) I was interested in ONLY what the law was and how it could be used. I didn’t care: how it was made, the values it reflected. I certainly didn’t appreciate how law (although in some cases a force of good) could be used to institutionalize evil. I had never thought about politics and how laws were made. It never occurred to me that in many cases, laws were made because people could help themselves by hurting others (the Canadian banks come to mind). Of course, I didn’t know anything about “place of birth taxation” and couldn’t have anticipated FATCA.
What law schools don’t teach …
A. The nature of the law making process
Government is by definition “force”. Political systems are NOT defined by WHETHER government is force. Rather they are defined by “WHO” exercises the force of government. In a democracy the coercive force of government is exercised (at least in theory) by democratically elected representatives. Of course (and we are seeing this today in Canada) a majority will use its majority to forcibly impose its will on a minority. (It’s the forcible imposition of the majority will on the minority that is the reason that we have a Charter of Rights.)
B. What law is
Law (at least statute) is a forceful legislative expression of the the objectives of governments. Once the law is made, the reasons for the law are no longer considered. The debate (if there ever was one) is over. What matters is:
“It’s the law.”
C. The effect of “It’s the law” or “There otta be a law”
Once a government makes a law the “issue is settled”. For example, lawyers will say: there’s no reason to discuss “citizenship taxation”. It’s the law. Canadian laws to facilitate FATCA have been made. FATCA is the law.
To put it another way, a way to stop discussion of a topic is often to pass a law. Once the law has been passed, what else is there to discuss? Furthermore, the framework of a law necessarily defines how any discussion of the law is to take place. The principles underlying the law are almost never discussed.
Consider the following law:
“All U.S. persons in Canada must obey all U.S. laws.”
Prior to this law being enacted, there may be some discussion about whether the U.S. should have the right to control Canadian residents. People may or may not express their views on this issue. They may ask, “is this good policy”? If it is “good policy”, is it sufficiently important that “there otta be a law”.
Once, the law has been enacted, there is NO longer discussion about whether the law is a good idea. The terms of the law clarify that the only thing that matters is whether someone is a “U.S. person”.
Therefore, the passing of a law could be (and often is) a “diversionary tactic” to obscure the real issues. Laws operate to prescribe the terms of the discussion. Nowhere was this more apparent than in the “Summary Trial” on August 4 and 5, 2015.
What I witnessed on August 4 and 5 2015 would be described to a non-lawyer as follows …
What I saw (I think) was:
The Government of Canada, was spending money belonging to Canadian taxpayers to defend it’s “God Given” right to, to trade one million Canadian citizens into “U.S. Tax Slavery” in return for the United States to NOT attack Canada’s banks. Oh, and the Government of Canada is also agreeing to let the U.S. come back every year with new criteria for deciding which Canadian citizens they want to make U.S. taxpayers.
I have no doubt that this characterization will offend a certain “calibre of mind”, but I challenge you to identify a single word of this characterization that is incorrect.
The growing disconnect between law and morality …
The above tweet references an excellent post at the Isaac Brock Society.
We have entered a world where:
All laws have legal force, but only some laws have moral force.
What strikes me as I endure my “law induced” hangover is:
1. how the legal arguments at the Vancouver “Summary Trial” obscured an accurate characterization of what was really going on (see above); and
2. Obscured the truly evil intent of FATCA, CBT, FBAR, etc.
(To be clear, Justice Martineau – in a “breath of fresh judicial air” – did try to understand these issues. The Government lawyer did NOT want to discuss “what was really going on”. The Government lawyer’s main argument was” “It’s the law.”)*
But, hang in I maintain that we will win:
Today the Government of Canada is hiding behind “It’s the law” – but we will win because …
It’s very simple. At the end of the day, FATCA, CBT, FBAR, etc. are moral issues. They are just plain wrong. They trample the human spirit and impede human progress.
Don’t think about law and drive!
*Trish Moon in a comment to an earlier post, notes that:
I don’t think anyone should have the impression that anyone could possibly understand the issues as well as expats-so the OMG moment was more about the lawyers and the judge. Justice Martineau was truly impressive. He asked such relevant questions-and my impression was that he was not terribly thrilled with the defendants’ lawyer. I did not come away from this with any idea that J. Martineau fell for the idea that the IGA was a great deal for Canada. This would be hard to convey but he was affected by our presence in the courtroom. He got that this was about people – Canadians. I don’t mean he had a bias but more like he seemed to sense the big picture in spite of the nitpicking about whether the IGA was a treaty, how to read the Treaty, etc…