Update from CCLA on FATCA Lawsuit

I have again been in contact with Abby Deshman at Canadian Civil Liberties Association. Abby has advised they are currently researching whether they will be involved in our FATCA lawsuit.
Here is the content of an e-mail I just received from Abby. I am posting it here with her consent.

Dear Lynne,
Thank you very much for getting in touch with us regarding the ongoing litigation over FATCA and the implications of the recent legislation and inter-governmental agreement.
You have asked for more information about CCLA’s process for deciding whether or not to intervene in a particular case, as well as an update on whether we intend to intervene in the Hillis v. Canada case. The CCLA prioritizes its research and intervention decisions to match litigation deadlines. In every case that is brought to our attention, we conduct background legal and policy research to help assess whether we want to intervene, and if so what position the organization will take. All intervention decisions are approved by our General Counsel, and in some cases our Board of Directors as well. We generally focus cases that raise public interest and systemic issues, and frequently direct our resources towards the cases that have will set binding legal precedent (for example, appellate cases).
While CCLA is not able to get involved in every case that is brought to our attention, this is an issue we have spoken out on before, and that we are actively looking at for a possible intervention when the time comes. We are currently in the legal and policy research phase, and hope to complete that work in the near future. We will definitely let you know as soon as we can when we decide whether we are intervening in the case.
I hope this information helps, please feel free to get in touch with Laura Berger if you would like to discuss this matter further.
Best regards,

24 thoughts on “Update from CCLA on FATCA Lawsuit

  1. @Embee Was that a double or triple negative? Maybe it should have been: Yes, that is not a no.
    But it still is not a yes–which is what we are hoping for!

    1. LOL … I was wondering about that too — single?, double?, triple? — no matter. Thanks for continuing to press for YES.

  2. I wish I could say I’m holding my breath, but I’m not. Too many waffle words in that email IMO.
    Mind you, with the Harperites deluging Parliament with such legal outrages (e.g., C-51) and absurdities (e.g., the Barbaric Cultural Practices Act, absurd as in, is this really a problem in Canada? there are teeming hordes of barbarians at our doors wanting to immigrate with multiple under-16 wives?), I guess it is pretty hard to set priorities. The Harper strategy seems now to be to swamp the legal profession and judiciary with all sorts of red herrings and needless legislative crap, in hopes no one will notice they’re starving our health system of funding and letting our environment, economy and labour market race to the bottom of the world barrel and violate our Charter of Rights and Freedoms every chance they can get.

    1. “You won’t recognize Canada when I’m through with it.” (Stephen Harper,2006)


      Unfortunately, he was one politician who kept his promise.


  3. Still no word from CCLA on our case. Repeated telephone calls to Abby Deshman’s replacement (Abby is on maternity leave) have not been returned.
    So, Schubert, feel free to say “I told you so.”
    Meanwhile, CCLA Presents Concerns to UN Human Rights Committee in Geneva relating to C51, refugee issues, solitary confinement in Canadian prisons, violence against aboriginal women, revocation of Canadian citizenship and other issues.
    The Guardian and Huffington Post are reporting on this.
    For us, there is nothing. So, once again, Schubert…

    1. One of those times when I wish I’d been wrong.
      FWIW, I sent a tax-free contribution to the British Columbia Civil Liberties Association recently, in support of their lawsuit (with the Canadian Federation of Refugee Lawyers) challenging the legality of Bill C-24’s provision to remove Canadian citizenship from any naturalized Canadian or even Canadian-born Canadian citizen who could in theory have a claim on another citizenship (US-born parent, for example), if accused (not necessarily convicted) of “terrorism” or “treason” (for now, those are the only charges, but could be expanded without parliamentary or judicial review). While this isn’t directly related to FATCA, if the lawsuit succeeds it would set a legal precedent banning any second-class treatment of any Canadian citizen IMO. I set them an email, mentioning FATCA, and got an encouraging reply (acknowledging the similarity with the FATCA issue) from their donor relations coordinator also thanking me for the donation and my thoughts.
      So why is it that a provincial CLA has more on the ball on this whole constellation of citizenship issues, when the federal CLA ignores us?
      I’m really glad I quit CCLA. I wonder if I can join BCCLA, even though I don’t live in BC and never have?
      God Bless BCCLA at any rate. Donate to them and not to CCLA, if you’re in the mood for a tax-deductible donation to a CLA. BC deserves it; the national one doesn’t. IMO.

  4. @Schubert: We have missed you. Glad to have your fighting spirit back. I wish you had been wrong regarding CCLA too.
    I agree BCCLA is far more active on many issues than CCLA.
    I sent the following e-mail to Laura Berger who is filling in during Abby Deshman’s maternity leave.

    Hello Laura. I am disappointed you have not responded to my numerous telephone messages asking for an update on whether CCLA will take any further action or position on FATCA.
    Will CCLA apply for intervenor status in the FATCA lawsuit? (A summary trial is scheduled for August 4 and 5)? Will CCLA take any other action or even make a public statement?
    The implications of FATCA should be chilling to all Canadians. The Canadian government has made discrimination against one million
    Canadians based on place of birth mandatory. The Canadian government and Canadian banks are actively identifying Canadian citizens and
    residents for reporting them and their private financial information to a foreign government simply because those Canadians were born there.
    Over a year ago, the Canadian government passed a law overriding all Canadian laws on the demands of a foreign government, probably in violation of Canada’s Charter of Rights and Freedoms. Yet CCLA is silent.
    Would CCLA be so quiet if Canada was taking such action on Canadians born in China, India, Iran or Eritrea?
    I hope you will, at a minimum, give me the courtesy of a response to my many attempts to discuss this with you.

  5. @Lynne
    Thank you for following up with CCLA. It is a sad state of affairs, when the federal CLA is not very involved with an issue like FATCA with the violation of our rights and freedoms by the current Con government.
    Thanks for bringing our attention to BCCLA. I live in BC and just today donated the $35 to become a member. BCCLA asks for comments on why one decided to join. I mentioned their involvement with Bill C-24 and C-51. Then I commented in more detail on Bill C-31, FATCA and the IGA. From the online application, it looks like anyone from anywhere can join BCCLA. You can select any province or country from their menu so people outside BC can become members for a small donation.
    I will follow up with BCCLA about our upcoming lawsuit and Federal Court dates. If anyone has ideas on how to do this, please let me know as I don’t have much experience with this.

    1. I received this email message from BCCLA yesterday:
      Hello Carol,
      Thanks for taking the time to send us your views. We definitely share your concerns about FATCA and Bill C-51. As a small organization we have to make many difficult decisions about where to focus our limited resources, and Bill C-24 is taking up the bulk of our focus at the moment. Joe Arvay is a fantastic lawyer, and we’ve worked with him many times in the past. He does great work on civil liberties cases such as these, so I’m glad to hear of his involvement in challenging FATCA.
      Thanks again for your email.
      Catherine Hart
      Donor Relations and Digital Strategy Coordinator
      BC Civil Liberties Association
      Email: catherine@bccla.org | Tel: 604-630-9757
      Catherine’s response was in reply to my email to BCCLA:
      Subject: Re: Support equal citizenship this Canada Day!
      It would be fantastic if BC Civil Liberties Association also recognizes the first group of second-class Canadian citizens as of July 1, 2014. Here is a write-up I did about the relationship between Bills C-31 (2014), C-24 and C-51:
      Alex Neve, Secretary General, Amnesty International Canada spoke about C-51 and ‘the Insecurity of Human Rights’ on June 24, 2015 at Calgary Public Library, Central branch. What a great presentation (and turn-out for the short notice). Wish there had been more time, including more time for discussion. I was able to get Mr. Neve’s business card and gave him this page that I put together to hand him:
      Bills C-31 (2014), C-51 (2015) and C-24 (2015) — their connecting relationship and new Two-Tiered Canadian Citizenship
      It’s been an interesting progression for three of the Conservative laws rammed through the Canadian Parliament without full due consideration of what legal and other experts had to say. (Neither the Information Commissioner nor the Privacy Commissioner testified to committees considering Bill C-24.)
      · Bill C-31* (2014), the first Canadian legislation to make approximately one million Canadians who are deemed US Citizens (plus their Canadian spouses, plus their Canadian-born children, plus their Canadian business partners who will be US taxable because they have a US business partner taint — all deemed *US Persons*), SECOND-CLASS Canadian citizens. They have been defined by the Conservative government *US citizens who happen to reside in Canada* (whether also Canadian citizens, even those born in Canada who have never lived or received any benefit from the US)…
      *The Government of Canada has signed a ‘FATCA IGA’ (Foreign Account Tax Compliance Act Intergovernmental Agreement) with the United States to help that foreign country acquire assets of those Canadians it alone deems to be ‘U.S. persons’. FATCA is the enforcement tool for the imposition of that peculiar and punitive U.S. style ‘place of birth’ taxation on the world. …the Canadian legislation that implements the FATCA IGA said to violate the Canadian Constitution, Canada’s Charter of Rights and Freedoms, the principles of Canadian sovereignty and democracy and the fundamental rights of all Canadians. Nathan Cullen (NDP), Official Opposition Critic for Finance, was not heeded when he said about Bill C-31 / implementation of the US FATCA IGA …
      “Why the government wouldn’t vote to clarify that the Charter of Rights, the Bill of Rights, the Human Rights Act, the Privacy Act, the Official Languages Act, and the Access to Information Act will supersede anything we sign in this tax treaty is beyond me. If it’s redundant, then so be it. Let’s have a redundant aspect of a legislative bill. I’m stunned that something so obvious can’t be accepted into law.”
      · to Bill C-51 (2015) which could deem any of us who dare speak out or gather in protest in this country a threat to Canada. One example — if a Canadian citizen, who is also deemed a US citizen (see above) with the secondary US citizenship one the US deems superior to their Canadian, should now oppose Canada protecting its banks before protection of its own citizens and residents, could that person be perceived a threat to Canada and the Canadian economy by speaking out and opposing the actions of Canadian financial institutions (deemed by the US *foreign financial institutions*)? A threat to local Canadian financial institutions who will be sanctioned by the US if they do not comply in collecting and turning over Canadian private financial information on specific *US Persons* to Canada Revenue Agency who will in turn send on to the US IRS? A bonus, with this Bill, Canada Revenue Agency (CRA) has been given permission to share our income tax filings with 13 additional government agencies – and, because of FATCA, CRA will have far more information about *U.S. Persons* than they will about other Canadians.
      · and now Bill C-24, adding the remainder of those from many countries around the world who chose to become Canadian citizens by naturalization, as well as their children who were born in Canada – to those *US Persons* whose Canadian citizenship is now CONDITIONAL and SECOND-CLASS. It paves a road where under some circumstances (like invoking some of Bill C-51, Canadians with another nationality (and those who are eligible to obtain another nationality) *could have* their Canadian citizenship revoked . Their Canadian citizenships are not the same as any others’ Canadian citizenships. They are now not afforded the same due-process and rights provided by the Canadian Charter of Rights and Freedoms to any other Canadian citizen. This new law *could have the effect and power* of silencing some voices of *dual citizens* or persons who could claim a second nationality. Now a segment of this country’s citizens may exist in the shadow of other Canadians. Is this what we want for Canada – a second-class of Canadian citizenship?
      Constitutional lawyer, Rocco Galati, has reported he is preparing a court challenge for Bill C-24 and is interested in heading a court challenge for Bill C-51 (http://pressfortruth.ca/top-stories/rocco-galati-preparing-court-challenge-against-bill-c-24/ ).
      On August 4th, a summary trial will be heard at Federal Court in Vancouver for the FATCA IGA lawsuit filed on behalf of two *Accidental American / non-meaningful American* Canadian plaintiffs (born on US soil to Canadian parents but who returned with their parents as young children to live in Canada). They come forward for all those deemed *US Persons in Canada*. Litigator, Joseph Arvay, another Canadian constitutional lawyer, leads this expensive effort against legislation passed with omnibus Bill C-31(2014) (http://www.adcs-adsc.ca/ ).
      Remember, Stephen Harper said “You won’t recognize Canada when I’m through.”
      We could be stronger if we worked together. What has Canada become?
      ‘Why should anyone trust what the US government says on cybersecurity when they can’t secure the systems they have full control over?’ http://www.theguardian.com/commentisfree/2015/jun/24/irs-employees-password-no-wonder-we-get-hacked
      ..”..The agency that has been singled out for some of the worst criticism in recent years is the Department of Homeland Security, the agency that is supposedly in charge of securing all other government systems. The New York Times reported this weekend that the IRS’s systems still allow users to set their passwords to “password,” along with other hilariously terrible mistakes. .”..
      Also donate to the ADCS challenge http://www.adcs-adsc.ca/DonateADCS.html and help prevent a sovereign government from turning over the information of a million or more Canadians to an extraterritorial aggressor – the USA! Help draw this line in the sand to put Canada and other governments on notice that depriving their own citizens and resident taxpayers and accountholders to satisfy the US is NOT lawful or just and WILL NOT be borne. WE HAVE LEGAL RIGHTS and with YOUR HELP WE ARE PUSHING BACK against FATCA.
      Say NO TO FATCA and US data extortion!!!
      Carol Tapanila
      Calgary, AB, Canada

  6. @Calgary411
    That’s a great correspondence from you to BCCLA. Your connection of the three Bills (C-31, C-51, C-24) to second class citizenship is right on. At least BCCLA sent a reply expressing concerns about FATCA and confidence in our lawyer, Joe Arvay. I do think that the intrusion of US law onto Canadian soil, and the resulting erosion of our freedom, does deserve more attention from this organization so will send my thoughts as well.

  7. Still no response from Laura Berger at CCLA despite my many phone calls and follow up e-mail to her.
    CCLA announced today CCLA is Mounting a Charter Challenge to C51 with Canadian Journalists for Free Expression.
    I’m glad they are challenging C51 but am disturbed that they will not even tell us if they will intervene in our case.
    As a wise person told me over a year ago “No response is a response.”
    CCLA’s silence on FATCA speaks volumes. Schubert was right.

  8. When Laura Berger did not return my numerous telephone messages or even acknowledge the e-mai I sent to her on July 7, I followed up with Sukanya Pillay, the Executive Director of CCLA.

    Congratulations on CCLA’s presentation to the U.N. human Rights group and on mounting a challenge to C51.
    I hope CCLA will also take action on the bullying of one million Canadians by a foreign government with the full support of our Canadian government. As CCLA is aware, the Canadian government passed a law last year overriding all Canadian laws on the demands of the U.S. government for the American Foreign Account Tax Compliance Act (FATCA). This should be chilling to all Canadians.
    Although CCLA made a public statement about this in 2011, your organization has been publicly silent on this since then. I was in ongoing contact with Abby Deshman about the legal challenge that is being pursued with Joe Arvay in Federal Court.
    I have left numerous messages with Laura Berger over the past few months and e-mailed her three weeks ago. I have not even had the courtesy of a reply to my calls or e-mail.
    Here is the e-mail I sent. Because Laura has not replied, I am now contacting you to ask if CCLA will apply for intervenor status or take any other action regarding this assault on Canadian citizens, residents, rights, laws, Charter, Constitution and sovereignty.
    I hope you will quickly review this and advise what action CCLA will take on this critical issue. Ii hope CCLA will agree Canadians born in the United States should have the same rights as all other Canadians.

    She promptly replied:

    Dear Ms Swanson
    Thank you for message and your kind words about CCLAs recent work.
    Thank you for also writing to us about FACTA. Please be assured that this is also an issue that concerns CCLA — we are currently looking into our strategy around the issue and have sought an external opinion as well. We cannot always act on every issue because of our limited resources, but I do promise we will consider this thoroughly and what our best options may be. We are also aware of the legal challenge being conducted — and we will look at whether and how we may be able to contribute.
    Thank you again for writing – please feel free to write to me directly if you wish in the future.
    Kind regards
    Sukanya Pillay

    “Cannot always act.” “Limited resources.” That probably gives us a clue as to where we stand on CCLA’s “concerns.”
    A second clue is the Burning Questions for Candidates from CCLA. Not a mention of FATCA.
    Schubert called it over six months ago.

  9. Yesterday I sent another e-mail to Sukanya Pillay.

    Thank you for your reply. I continue to be very troubled at CCLA’s continuing silence on FATCA.
    This week, we were in Federal Court for a Summary Trial. We are awaiting the judge’s decision, bit it is very possible that private information of Canadian citizens and residents will be forwarded to a foreign government without the person’s consent in just over a month. Yet CCLA remains silent.
    We have raised almost $500,000 from small donors just to get to this stage. Our donors are tapped out. Yet CCLA remains silent.
    CCLA this week issued burning questions for candidates. Yet on FATCA, CCLA remains silent.
    Unfortunately, I am concluding that Canadian citizens and residents have very low ranking on CCLA’s “concerns.” I hope you will prove me wrong.

  10. Today, CCLA tweeted:

    CCLA @cancivlib 8h8 hours ago
    “The PM’s (travel ban) should worry all Canadians—but it is particularly worrisome for those who have Syrian roots.” http://ow.ly/R1rJH

    I replied:

    Lynne Swanson @LynneBlaze 4h4 hours ago
    @cancivlib #FATCA should worry all Canadians but it’s particularly worrisome 4 those with U.S. roots. Y is CCLA silent?

    It’s not just the Harper Cons who think we should be second class citizens. It seems CCLA agrees.

  11. I e-mailed the following to the Executive Director of CCLA today:

    Is CCLA able to provide any update on FATCA? The first set of data about Canadians is scheduled to be transmitted to a foreign government this week or next. Yet CCLA remains silent.
    Why is CCLA not alarmed about this assault on Canadian privacy, citizenship, laws, rights and sovereignty?

    She replied:

    Lynne, we have commissioned a research memo from a major law firm. When we receive that, when we have assessed their research, and when we are ready, we will respond.
    Sukanya Pillay
    Executive Director and General Counsel
    Canadian Civil Liberties Association/ Association canadienne des libertés civiles

    I replied to her:

    Thank you. Is there any reason why CCLA is silent now as information is due to be turned over? Is there anything preventing CCLA from making a public statement? It has been nearly three years since the last statement from CCLA.
    When is When?

    How many times will I say Schubert was right before I give up on CCLA?

  12. CCLA has written to Mr. Trudeau: Time for Real Change in Human Rights Law and Policy.
    Once again, we and FATCA are not mentioned.
    Here is what they tweeted and my response:
    CDN Civil Liberties @cancivlib 3h3 hours ago
    We’re not wasting any time. See our letter to Canada’s new prime minister regarding our key human rights concerns. http://ow.ly/TJGYf
    Lynne Swanson @LynneBlaze 2h2 hours ago
    @cancivlib Y is there no mention of #FATCA attack on 1 million Canadians in CCLA letter 2 @JustinTrudeau?
    Schubert was right.

  13. It’s been five months since CCLA said they would let us know “when we are ready.” They have not provided any further update to me or (to the best of my knowledge) to others.
    For months I have been tweeting them trying to get CCLA to respond and take a stand. Others, including JCDoubleTaxed in Australia and Jason Pedley and WildlifeFotog (The Animal) have joined in. We have been met with silence.
    Yesterday, I called CCLA #CharterFirst Hypocrites.

    I think I struck a nerve. Today, CCLA replied on Twitter and advised they submmitted FATCA Concerns to UN in a presentation they did.

    I asked if we can get a copy of what they actually presented about FATCA in CCLA Concerns to the UN Committee on Economic, Social, and Cultural Rights

  14. Another response from CCLA! At 7:19 pm on a Friday evening. Who knew calling CCLA Hypocrites would get a response when all else has failed.

    FATCA is covered in Sections 56-59 of the CCLA Report to the UN Committee on Social, Economic and Cultural Rights. It is far weaker than I would like it to be, but it is there.
    I forwarded the report to ADCS Directors, the Arvay Team and to Muzzled No More who was the primary author of our complaint to the Human Rights Committee (which seems to be stalled at the entry stage).

  15. More from CCLA between JCDoubleTaxed in Australia and CCLA in Canada about CCLA’s report in Switzerland.

    1. Did you see this:
      ‘CCLA Presents Concerns to the UN Committee on Economic, Social, and Cultural Rights’
      February 26, 2016
      “…….Privacy-invasive and potentially discriminatory tax reporting measures affecting a distinct group of Canadians as a result of an inter-governmental agreement between the United States and Canada to implement the former’s Foreign Account Tax Compliance Act domestically;”

Leave a Reply

Your email address will not be published. Required fields are marked *