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Don Whiteley is a Vancouver-based writer.



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While the Harper government conducts artful negotiations with the United States over a new tax admonition barter agreement, Canada’s arch built-in acknowledged able is cogent the federal government such an acceding risks above violations of Canada’s Charter of Rights and Freedoms, and possibly a host of added federal and bigoted aloofness rules.

The affair revolves about an abstruse allotment of U.S. legislation anesthetized in 2010 alleged the Foreign Annual Tax Acquiescence Act (FATCA). This legislation requires every banking academy in the apple (banks, acclaim unions, brokerages, allowance companies, etc.) to analyze who amid their annual holders are U.S. citizens, or U.S. bodies (someone who had a blooming card) and address their banking abstracts to the Internal Revenue Service (IRS).

It is by far the best arrant archetype of a U.S. addiction to canyon laws and appoint them extra-territorially. The club to force compliance? Don’t accede and the U.S. will abstain 30 per cent of every U.S.-origin banking transaction that goes through the bank, whether it’s justified or not. The Americans altercate that they are aggravating to ascertain out tax cheats, but the appulse of FATCA goes far above anecdotic tax cheats and is now creating tax ache for about seven actor U.S. expatriates all over the world.



FATCA acquiescence costs for the world’s banking institutions are astronomical, and Canada’s banks are acquisitive that the federal government will accommodate an intergovernmental acceding (IGA) with the Americans that would acquiesce them to address abstracts on U.S. citizens to Canada Revenue Agency, which in about-face would accelerate it to the IRS. The U.S., to facilitate this approach, has accounting a Model Acceding to be acclimated as a arrangement for these mutual tax agreements.

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But a above obstacle to all this is Canada’s Charter of Rights and Freedoms, which prohibits (Section 15.1) bigotry based on several criteria, including “national or indigenous origin.” Built-in able Peter Hogg has acicular this out in a five-page letter to the Finance Department, which is co-ordinating the IGA negotiations with the US.

“In my opinion, the procedures authorization by the Model IGA are abominable in a way that would not bear Charter scrutiny,” Hogg says in his letter. “These procedures finer amusement individuals differently, and adversely, based on an abiding claimed characteristic, accurately citizenship. If Parliament were to achieve legislation acceding and allowing this blazon of cogwheel and adverse treatment, the legislation would abjure the adequation protections in area 15 of the Charter.”

Hogg’s letter goes on to point out that Area 1 of the Charter allows governments to appoint reasonable banned to Charter provisions, but again argues “… any altercation attempting to use Sec. 1 to absolve limitations on the adequation rights would be acutely weak. The cold of ensuring acquiescence with U.S. tax laws is apparently not important abundant to absolve breaches of the Canadian Charter, and alike if it was … the measures advised (by the U.S.) are grossly asymmetric to the objective.”

There are about one actor bodies in Canada — the all-inclusive majority Canadian citizens — who accept access to the U.S. in one way or another. Some are “accidental” Americans — built-in in Canada to parents who are (or were) U.S. citizens; Americans who larboard the U.S. decades ago and anticipation they automatically abandoned their U.S. citizenship back they became Canadians; and bound babies — bodies built-in to Canadian parents in the U.S. who came home as infants.

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All these are snared by the U.S. tax net, and it is their banking admonition that would be compromised by a Canada-U.S. IGA. Why? Because the U.S. is one of alone two countries in the apple that taxes you based on your citizenship, not your residence. The IRS cares annihilation for the actuality that you may never accept lived in the U.S. and maybe you don’t alike allege English. You’re still taxable.

Hogg, above Dean of Osgoode Hall Law School, has practised built-in law for 40 years and wrote the alone absolute argument on built-in law. He says his absorption in this affair is personal.

While Hogg’s letter focuses on what he believes is a bright abuse of Sec. 15 of the Charter, he alludes to abeyant conflicts with several added federal and bigoted appropriate to aloofness laws. These accommodate Sec. 7 (protects “liberty”) and Sec. 8 (“unreasonable chase and seizure”). He additionally suggests that banking institutions that are provincially adapted (e.g. acclaim unions) ability not be accountable to a federally imposed IGA.

Because the U.S.-Canada negotiations over an IGA are ongoing, Hogg would not accord to an account on the issue. But his able admonition to Ottawa is, don’t assurance an IGA based on the American Model I template.

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Sources abutting to the negotiations say the Americans are actual afraid to move off this arrangement because they accept already active IGAs with added governments and would be afflicted to re-negotiate.

Although FATCA was anesthetized in 2010, it is alone now actuality implemented, and the world’s banking institutions charge be accessible to accede (if that’s their choice) by Jan. 1, 2014. With Canada in the average of negotiations with the U.S., the banks are accepting actual afraid about a active clock. Should Canada adjudge not to assurance an IGA, the banks will be larboard to their own accessories and will accept to accomplish their own deals with the IRS — a awfully added complicated and big-ticket process.

Looming over all of their heads, if Hogg’s assay is correct, will be a abeyant for a Charter challenge. With added than a actor Canadians abnormally afflicted by this, the allowance of a class-action clothing advancing calm attending appealing good.

Don Whiteley is a Vancouver-based writer.

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