Let’s begin with the end:
My advice to you for the next few days …
Launch a massive a focused “social media” campaign (primarily Twitter and Facebook) which is to convey two sets of messages:
- To individuals – The Government of Canada is about to turn one million of your fellow Canadians over to the IRS because Stevie Harper WANTS to!! Get them to pressure the Government and the Candidates.
- To Candidates and Political Parties – Those who do NOT actively oppose the great FATCA turnover will NOT winning the election!!
You have only a few days. As Ronald Reagan was fond of saying:
“When you can’t make them see the light, make them feel the heat.”
Here is why …
Last night I wrote a quick post reporting that:
- The IRS has delayed FATCA implementation for another year;
- Governments with Model 1 IGAs (including Canada) are NOT required to turn over the information they have collected by September 30, 2015.
This means that the Government of Canada is NOT required under the IGA to turn the tax information of (who knows how many?) hundreds of thousands of Canadians over to the IRS. Although, they are NOT required to send the account information of Canadian citizens to the IRS, the question is:
Will they or won’t they?
I recognize that this is my personal view (well, that’s a blog post always is). My view is that that:
- The Government of Canada has NOTHING to gain by turning the data over this week. There is ZERO potential gain; and
- Has a great deal that they could lose by turning the information over this week.
My prediction that that the information will NOT be turned over. This will provide “breathing space” for our Charter lawsuit, for “individuals accused of being tainted with USness”, and even for the United States to come to its senses (yes, it’s possible).
My reasons fall into three categories. The first reasons are political and the second are legal. The third is simple: “It’s the right thing to do.”
Political Reasons …
So, far the claim of the Harper Government has been: “They made us do it.” “We had no choice.” “The banks wanted it”. All of these claims are based on coercion. As of yesterday, it is very clear that the Government is NOT required under the Model 1 IGA to “comply” by September 30, 2015. They just aren’t. Let’s imagine that the CRA turns the information over this week. Let’s say that someone asks:
Q. Whey did you turn the information over this week, when the “IRS” (I have always maintained that the IGA turns Canada over to the IRS) said that you didn’t have to.
A. The answer is NOT: “Because we were forced to.”
A. The only possible answer is: “Because we WANTED to.”
Think of it. Can the Government of Canada say (in the midst of an election no less) that:
We gave the information of hundreds of thousands of Canadian citizens to the IRS because we WANTED to!! That’s a bit rich (even for a Government that is desperate to please the banks by obeying the IRS).
And to turn the information over in the middle of an election …
Now, you can see that this will become more improbable. Although, few Canadians know about FATCA and few Canadians care about FATCA, this could be a “big stick” in the hands of Mulcair (mainly), Elizabeth May (presumptively) and Justin (who knows).
Never forget that:
Elizabeth May and the Green Party have an anti-FATCA platform.
Thomas Mulcair and the NDP did try to derail the FATCA aspects of Bill C-31.
Justin Trudeau wants to be Prime Minister.
Notice also that because the issue becomes transferring data to the IRS when they were not required to, FATCA per se ceases to be the real issue. The real issue is that they turned the information over when they were not required to.
If I were Thomas Mulcair, Murray Rankin or Nathen Cullen, I would be watching very carefully.
The only way that Stephen Harper can protect himself in the midst of an election is to NOT turn the information over. In fact, (thinking about this as I write), turning the FATCA data over to the IRS could (in a rational world) guarantee the end of the Harper Government.
Amazingly, FATCA has just become an issue in this election! Thank you IRS! You have affected the election in Canada!
This is obviously true for all candidates and political parties.
“To be or not to be, whether tis better …”
Does the Conservative Government really want to commit suicide?
Legal reasons (or at least considerations) …
I do agree that under the IGA, Canada is permitted to turn the information over this week. They are permitted to, but not required to. That said, here is their problem:
They know perfectly well that they are the defendants in a lawsuit (“shout out to all of you who made it happen”) challenging the FATCA IGA and enabling legislation. The lawsuit is not imagined. It is not anticipated. It is real! The decision of Justice Martineau has NOTHING to do with the Charter issues. If they were to simply “turn the information over”, they would be depriving the plaintiffs of the practical benefit of winning the lawsuit. This is NOT a nice thing to do. It is “mean spirited”. But, it also creates a new problem for the Government.
S. 24 of the Canadian Charter of Rights and Freedoms read as follows:
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
What does this mean?
The answer is of course: who knows?
That said, it seems to me that in a situation where:
A. The Government is a defendant in a Charter trial
B. The Government takes a step during the trial, that would deprive the plaintiffs of the benefits of a victory
C. The Government knows that by taking that step, the plaintiffs will be deprived of the benefits of a victory
it will be easier to argue for damages against the Government for an “infringement or denial” of those Charter rights.
Think of it. The possibility of millions of INDIVIDUAL Canadians being able to sue the Government of Canada for damages for infringing their Charter rights!
To be clear, my point is:
For the Government to transfer the banking information of millions of Canadians to the IRS, when they can’t argue that they were required to, means that the infringement of the Charter right is NOT accidental or incidental. The infringement of the Charter right is malicious and vindictive.
In 2010 the Supreme Court of Canada declared that S. 24(1) does have “teeth”.
The above tweet references in an interesting article that begins with:
On Friday the SCC set a precedent for awarding constitutional damages for Charter violations in the decision of City of Vancouver v. Ward, 2010 SCC 27. The SCC in part allowed the City of Vancouver and Province of British Columbia’s appeal of Tysoe J.’s award of damages to Alan Cameron Ward for Charter violations. Ward was wrongfully arrested because he fit the vague description of a person who was suspected of trying to throw a pie at former Prime Minister Jean Chretien. His Charter right to be free from unreasonable search and seizure was violated when the police stripped searched him and seized his car. Tysoe J. awarded Ward $100 and $5000 for the violations relating to the car and strip search, respectively. Last year I discussed the British Columbia Court of Appeal’s (BCCA) decision in the case in One Order of Just Desserts, Hold the Mala Fides Requirement.
Unlike the SCC decision, the BCCA’s decision was primarily focused on the issue of whether mala fides was required in order for damages to be awarded for a Charter violation. The City and Province argued that the police did not possess mala fides, and thus damages should not be awarded to Ward. Although the SCC did not explicitly state that mala fides is not required, its decision impliedly stands for that proposition.
Constitutional Damages are “Appropriate and Just”
McLachlin C.J., writing for the unanimous SCC, framed the issues as: (i) whether a claimant is entitled to damages as a remedy under s. 24(1) of the Charter; and (ii) if so, how should the quantum of damages be assessed? McLachlin C.J. responded to the first issue in the affirmative. According to s. 24(1) of the Charter, anyone whose rights have been violated may apply to a court of competent jurisdiction for any “appropriate and just” remedy. This provision grants courts broad discretion to award damages, though this discretion is limited by what is appropriate and just according to the facts and circumstances of a particular case.
The SCC endorsed four general considerations established in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, that inform whether a remedy is appropriate and just. An appropriate and just remedy will:
(1) meaningfully vindicate the rights and freedoms of the claimants; (2) employ means that are legitimate within the framework of our constitutional democracy; (3) be a judicial remedy which vindicates the right while invoking the function and powers of a court; and (4) be fair to the party against whom the order is made.
Now, this blog post is not a “legal article”. Nevertheless, it’s clear that Charter S. 24 does exist and that it has been used. It’s also “common sense” that is more likely to be used when the Government INTENDS to infringe Charter Rights.
It’s the right thing to do …
At the end of the day (maybe not until the very end) life is NOT about law (never confuse it with morality), politics (an exercise in how the coercive power of government is exercised), but about doing the “right thing”.
FATCA is wrong. FBAR is wrong. CBT is wrong. Therefore it is wrong for the Government of Canada to participate in inflicting these immoral things on Canadians.
Trust me. At the end of the day, we win because all of these things are wrong!