Queen’s University Professor Arthur Cockfield’s provided a comprehemsive report to the Privacy Commissioner in April on FATCA and the Erosion of Canadian Taxpayer Privacy.
In his 36 page report, Professor Cockfield reviews numerous laws, practices and policies. He says:
FATCA and the IGA unduly harm the privacy interests and rights of Canadians in part because detailed financial information concerning hundreds of thousands of Canadians would be transferred to a foreign government for the first time…The Canadian government should not implement the IGA until these privacy concerns are addressed.
Professor Cockfield looks at various laws and practices. He briefly addresses some Charter issues:
The IGA may violate section 15 of the Charter that prohibits discrimination on the grounds of national origin (including citizenship). As discussed in this report, the IGA discriminates against US citizens (and others) residing in Canada by offering unequal treatment of these individuals (see Part VI.G.). A criminal investigation calls for constitutional law protections afforded by the Charter of Rights and Freedoms including section 8, which restricts unreasonable searches and seizures.75 A demand for tax information may also violate an individual’s right to remain silent under section 7 of the Charter.76 If the United States.
Professor Cockfield concludes:
Accordingly, the IGA and the Implementing Act do not protect the privacy rights and interests of Canadians. Bill C-31, the proposed law to implement FATCA that at this writing is before Parliament, needs to be amended to account for these privacy concerns. Until the privacy and other concerns are studied and addressed by Canadian lawmakers,Canada should only transfer FATCA required data associated with U.S. persons who are not Canadian residents. This approach accords with longstanding practice and emerging global information exchange standards. The government should take immediate steps to ensure this standard is codified in Bill C-31. This move would safeguard the privacy rights of Canadians while enabling Canada to work cooperatively on a global scale to ensure that tax evaders—American, Canadian, or otherwise—do not have a safe haven anywhere.
Professor Cockfield is on the panel with me next week, along with a Candian-American tax lawyer based in New York.
Many thanks to Badger for this great find. I did a quick speed read. If Badger would like to do one of her thorough and thoughtful analyses, that would be greatly welcome.