Possible Charter Challenge–Legal Opinion Needed (And Funds!)

As most of you know, the possibility of a challenge under the Canadian Charter of Rights and Freedoms has been discussed for some time.
With the signing of the IGA and proposed legislation to override existing Canadian laws, we need to determine our next steps.
Prominent Canadian constitutional lawyer Joseph Arvay has reviewed the IGA and the proposed legislation. He has recommended as the first step a formal legal opinion to advise if a challenge would have a reasonable possibility of success. In his letter to me (real name and address removed), Mr. Arvay said

“You have asked for our opinion as to whether or not a challenge to any proposed legislation would have a reasonable prospect of success. Our initial review of the proposed legislation indicates that there may be a serious question as to whether it would withstand constitutional scrutiny once enacted. We question whether the proposed legislation is compliant with the Charter of Rights and Freedoms or whether it violates protections under the Charter against discrimination based on national origin or citizenship, against unreasonable search and seizure and against deprivation of liberty except in accordance with the principles of fundamental justice. We also question whether the proposed legislation falls validly under the federal jurisdiction over taxation, or whether it is in substance regulation of financial institutions in which case federal jurisdiction is limited to regulating banks but not provincially regulated financial institutions such as credit unions.”

IRSCompliant and I have communicated with four other lawyers. They all agree a legal opinion should be our next step before proceeding further.
Mr. Arvay’s letter also says

In order to answer those questions, a proper opinion needs to be prepared. We are prepared to prepare this opinion for a fee of $15,000 plus applicable taxes.

So, the cost for this legal opinion would be $15,000 plus tax, which would bring the cost for the opinion to around $17,000. To many, that cost for an opinion probably seems steep.
However, the four lawyers agree that this is a very reasonable cost and is far below what they would expect we would pay for a formal legal opinion.
To put the costs in perspective, we would need one contributor at $17,000 or 17 contributors at $1,000 each or 34 contributors at $500 each or 100 contributors at $170 each or 170 contributors at $100 each or a combination of those or other amounts. (Due to the administration, we would request donations of a minimum of $100 each.)
We should aim to raise more than that amount for contingency and administrative purposes.
There is agreement among those that we have contacted–including with a senior legal expert–that Mr. Arvay would be an excellent choice for a Charter challenge.
The next step is to decide a) Do people want to proceed with this? b) Do people want to retain Joe Arvay for a legal opinion? c) Are people willing and able to contribute to the costs?
Many individuals have asked if Canadian Civil Liberties Association could assist with the case. Abby Deshman has advised each case must go through an individual approval process. When CCLA becomes involved:

The general mode of operation is as an intervener, requesting the court add CCLA to the ongoing case as a friend of the court. Normally, the case is already going forward with the parties independently represented.  As a non-profit, we unfortunately do not finance others’ legal cases, and in general are not in a position to represent individuals in launching legal actions.

Ms. Deshman, however, has advised it is possible CCLA might be able to provide some assistance with legal research.
Please advise if a) You agree we should seek this legal opinion b) if you would be able to contribute (we will request a minimum donation of $100).
Someone is researching ways we might raise and administer the funds if people do want to proceed and are able to contribute.
If the case proceeds beyond the legal opinion though the courts, the costs will, of course, increase greatly. We are not able to say exactly what the costs would be, but we expect they could be $100,000 to $250,000 or more.
You should note that after we receive a legal opinion, we will not be able to publicly share the details of the content or post it on line. This is for strategic reasons and to ensure confidentiality of the position the case may take before the courts.

19 thoughts on “Possible Charter Challenge–Legal Opinion Needed (And Funds!)

  1. Many of us have been waiting with bated breath for this post. Thank you Blaze and IRS Compliant. I will donate to both the Legal Opinion and the suit.

  2. Thanks WhiteKat. I was in touch with Joe Arvay minutes after I read the contents of the IGA.
    He has been very helpful over the past two years at no charge to me. He also reviewed the IGA and proposed legislation at no charge.
    I was glad when other lawyers indicated that Joe would be a strong choice for this effort.
    I know many people wondered why we had not posted anything earlier, but IRSCompliant and I were working through several steps with several different people.
    Despite the delays in posting this, we can at least say our “soon” was much shorter than Flaherty’s and Shoom’s “soon.”

  3. Thanks DM. GwEvil is working on how we can process and administer this. I am also meeting with someone tomorrow about one possible idea.

  4. I am in too, although I thought that Peter Hogg had already answered the question for us.
    Are we and Isaac Brock each acting alone, or are we pooling our efforts?
    Do you remember how Mark Steyn was sued after he wrote some things about the demographics of muslims? He was, if I recall correctly, sued by the Canadian Islamic Congress, and the taxpayers picked up the tab on behalf of the plaintiffs. Steyn had to defend himself with (successfully as it turned out) his own resources and resources donated to him.
    If other minority groups can sue others on the taxpayer’s dime, why can’t we?

  5. @ArcticGreyling: We are working in partnership with Brock. I posted here, IRSCompliant posted at Brock.
    There is good discussion and momentum going over there.
    This legal opinion will be more comprehensive than the one already put forward by Mr. Hogg.
    The case you refer to involved complaints before Human Rights Commissions. That is different from challenges under the Charter of Rights and Freedoms.
    http://en.wikipedia.org/wiki/Human_rights_complaints_against_Maclean%27s_magazine

  6. @ArcticGreyling: Yes, this involves our Human Rights. This is complicated (and I think nasty!), but I will try to respond as best as I can as a lay person.
    The banks are covered by federal laws on banking, privacy and human rights. The federal Human Rights Act prohibits discrimination based on national origin.
    The Charter does not apply to banks or other organizations. It applies to government.
    Two years ago, Joe Arvay advised if the banks violate the laws, we may have grounds for a lawsuit against the banks. If the government changes the laws to allow banks to comply with the parts of FATCA that violate Canadian law, we may have grounds for a Charter challenge against the government.
    If you review the proposed Canadian legislation to enable FATCA, you will see:

    Inconsistent laws — general rule
    4. (1) Subject to subsection (2), in the event of any inconsistency between the provisions of this Act or the Agreement and the provisions of any other law (other than Part XVIII of the Income Tax Act), the provisions of this Act and the Agreement prevail to the extent of the inconsistency.
    Inconsistent laws — exception
    (2) In the event of any inconsistency between the provisions of the Agreement and the provisions of the Income Tax Conventions Interpretation Act, the provisions of that Act prevail to the extent of the inconsistency.

    Four lawyers have advised this means that where there is a conflict between the new law to enable FATCA and existing Canadian laws, the new law will prevail. (with the exception of the Income Tax Conventions Interpretation Act).
    So, that could protect banks from a lawsuit or complaint under any of the Canada`s laws. (Remember, Canadian Bankers Association lobbied hard for this so they can say they are following Canadian laws when they begin to FATCA us). It may give the banks the protection they need against a Human Rights complaint.
    So, it`s possible our only hope may be through a challenge under the Charter of Rights and Freedoms. That is why we need to get a legal opinion regarding this.

  7. Thanks Mr. A. We’re hoping for a post at Brock soon about how people can contribute.
    When the information is posted at Brock, I will cross post here.
    Brock is having some technical problems right now, so please be patient everyone. I understand they have people working on it.

  8. Hello Canadian Freedom Fighters! (and our allies around the globe)
    IRS Compliant, Blaze and I have been working frantically over the past few days to get something ready for all of you who are eager to contribute to the Charter Challenge Fund and here is what we have almost ready:
    1. A bank account established with a PO box for those of you who want to mail cheques
    2. An email account which has been tested for email transfers and has passed the test!
    3. A PayPal account that has been tested for those who do not have a PayPal account allowing people to donate with credit cards and THAT has also passed the test. Obviously, for those of you with PayPal accounts, you know what to do!
    4. I am working on a draft website for the purpose of spreading the word about this Charter challenge and a one stop shop for donations.
    We will be posting something here as soon as possible and hope to have everything finalized by the end of the week.
    Thanks!
    GwEvil

  9. Thanks to you GwEvil. I know how hard you have been working and will continue to work on this for the last several days.
    When people see the superb website GwEvil designed and pulled together on very short notice, I think you will understand her efforts, dedication and talents.
    As she said, we hope to go live soon. Again, our “soon” is much shorter than Flaherty’s. We hope by the end of the week if we don’t encounter technical difficulties.

  10. Maybe this has come up before, but it seems that a constitutional challenge could be made not just against the IGA but also against the Canada-US Tax treaty as it already was pre-FATCA:
    Two reasons: 1. discrimination by national origin is already present in the treaty in that it allows collection of tax liabilities by CRA for IRS against American citizens legally resident in Canada while not Canadian citizens.
    2. The treaty allows the levying of taxes on some residents of Canada for transactions (salaries, dividends, etc.) taking place in Canada-which is the equivalent of allowing a foreign power to levy taxes within our borders. Is it not the Canadian constitution that says which levels of government can levy taxes. Can the government of Canada legally offer this power to a foreign country?

  11. @Petit Suisse Thanks. We may be passing ideas like that on to Mr. Arvay to ensure he has all the information he needs–if we raise enough money for the opinion and for the case to proceed before the courts.
    @Everyone: Stay Tuned!
    We hope to launch Canadian Charter Challenge Fund drive tomorrow (February 28) barring any technical or other glitches. A link will be posted here and at Brock.
    Join us in fighting Canada’s capitulation to the American bullies and the signing over of our rights to a foreign power.

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