Elizabeth May was back on the FATCA attack yesterday in the House of Commons. I have pulled comments from her and others from Hansard.
Note, Con Lynne Yellich says:
It is important to understand that this is not just enhancing but also protecting Canadians, and it is important for us as we trade more and more.
Here are the points raised in the House:
Elizabeth May (Green)
I have been trying to reserve most of my time in this brief opportunity for the most egregious section of Bill
C-31, which is forcing through, with a limitation on debate that applies to all of Bill C-31, some potentially devastating changes to Canadians’ rights found under something called the FATCA. This Foreign Account Tax Compliance Act is thrown into Bill
C-31, and I want to refer to the opinions of legal experts.
Some time ago, concerned about the FATCA, I did an access to information request and turned up a letter to Finance Canada from Canada’s leading constitutional law expert, Professor Peter Hogg. He wrote to Finance Canada when the department it was in the early stages of working on this, and said that treating Canadians who might have some connection to the United States—not just those who might be born there, such as me, but who is no longer a U.S. citizen, or people who had parents born in the U.S., or once worked or studied there—differently than Canadians with no connection to the U.S. violates section 3 of our Charter of Rights and Freedoms, in which we are entitled to equal treatment under the law as Canadian citizens.
However, it gets worse than that. Here I want to quote extensively from advice to Finance Canada from two very knowledgeable tax policy law experts: Professor Allison Christians, the H. Heward Stikeman Chair in the Law of Taxation at McGill University; and Professor Arthur Cockfield from Queens University.
Both professors conclude that right now it appears that the only reason the current Conservative administration feels it has accomplished anything with FATCA is that it has staved off punitive measures against our commercial banks by the United States. That is the Conservatives’ sole rationale for a non-reciprocal agreement that will violate the privacy, and potentially the charter rights, of as many as one million Canadians. They have done it to avoid the U.S. bringing sanctions against them.
These knowledgeable experts say that this implementation act would unduly harm the privacy rights and interests of all Canadians, unduly raise compliance costs for all Canadian financial institutions and Canadian taxpayers, and unduly raise legal exposure for Canadian financial institutions due to the ongoing potential liability for mistakenly transferred personal financial information.
Bear in mind that this FATCA that we are being pressed to pass so quickly would require our banking institutions to decide for themselves whether someone appears to have some connection to the United States, and then they will turn over the personal banking information of that person without their knowledge to the U.S. Internal Revenue Service. It would also provide potentially sensitive commercial information held by Canadian firms to the United States, which if improperly revealed could harm a firm’s competitiveness. It would interfere with the cross-border mobility of Canadian workers to the United States. It would impede Canada’s efforts to enforce its own tax laws. It would violate the spirit and potentially the letter of a number of Canadian laws.
The advice from these knowledgeable tax experts is clear and compelling. Since we have as a nation have now signed this IGA with the U.S., we have protected the commercial banking sector from these penalties, and so we have time to get it right. Here is their advice.
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We recommend that the government explicitly address what gains have been achieved by Canada in accepting the IGA, if any exist other than the relief of economic sanctions. If relief of economic sanctions is the only impetus for Canada’s acquiescence to U.S. demands, we recommend that the Canadian Government challenge the legality of such economic sanctions…. |
In other words, the U.S. has no right to impose sanctions on Canadian banks. It says it does. We should challenge it in international court. These experts say that we should stop the introduction of FATCA, ensure that it does not violate our charter rights, protect the privacy rights of Canadians, and not rush into this. I urge the House to pull FATCA out of Bill
C-31.
Lynne Yelich (Minister of State Foreign Affairs, Conservative)
Mr. Speaker, my notes say that this is an important piece because it updates the automatic exchange of information for tax purposes. Without an intergovernmental agreement between Canada and the United States, Canadian financial institutions and United States persons holding financial accounts in Canada would be required to comply with that, regardless, starting July 1, 2014, as per the FATCA legislation enacted by the U.S.A. unilaterally.
It is important for people to understand that this is important. It is an intergovernmental agreement. It is something that Canada has to support because of recent G8 and G20 commitments on the multilateral automatic exchange of information. The G20 leaders committed to this automatic exchange as a new global standard, and it was endorsed as the OECD proposal developing a global model.
It is important to understand that this is not just enhancing but also protecting Canadians, and it is important for us as we trade more and more.
Elizabeth May:
Mr. Speaker, I am so grateful that we are actually having a conversation and talking about this issue. The reality of the FATCA that the current administration has accepted is that it does nothing for reciprocal exchange of tax information. It is non-reciprocal; it is asymmetrical. It is unprecedented in international law for one sovereign country to say, “Oh gosh”, and cry uncle, “They are going to get our information whether we like it or not and they are going to punish our banks”.
The best legal minds in our country are advising the administration not to cave in just because the United States says it has a right under its domestically passed legislation, but which has not been ratified as an international treaty by its senate. There are a number of legal issues here, for which I do not think we have shown sufficient backbone in response. We do not need to accept a law passed by the U.S. Congress. Would we accept a law passed by the People’s Republic of China that requested information of Chinese citizens in Canada? Are we to accept that in response to laws passed in other countries with implications for Canadian citizens, the Government of Canada can do nothing but say, “Here’s all the information we can provide you. It’s private. We’re not warning Canadians. We’re giving it to you. Good luck”.
Everyone knows that Canada is not a tax haven. People who live here, Canadian citizens and residents, pay taxes. We pay more taxes than people do in other countries. We need to protect the privacy and charter rights of Canadians.
Helene Le Blanc (NDP)
The member for
Saanich—Gulf Islands eloquently established and demonstrated that this part of the budget should be studied independently of Bill
C-31. She also demonstrated that parliamentarians, regardless of party, are being denied an opportunity to study this part of the bill in detail, even though it will significantly affect Canadians, financial institutions and the Canada Revenue Agency. A Radio-Canada report stated that implementing this would cost CRA $100 million.
Who does my colleague think will have to foot this pricey bill?
Elizabeth May:
Mr. Speaker, I would like to thank the hon. member for her question.
I completely agree with the member. It is clear that FATCA is advantageous for the United States alone. There is nothing in it to help Canadians. As the lawyers and legal experts explained, the only reason why the Government of Canada accepted this agreement, which will violate the rights of Canadians, is that the U.S. government threatened to impose sanctions on our banks.
[English]
We need to take this very complex section out. As the legal experts have commented, there was a truncated period for public comment. Very little time was provided for the financial sector, and look at the costs and what it will mean to our banking institutions and credit unions to comb through all the material they have on every customer. It will raise the costs. The banking sector does very well, but this is going to raise consumer costs and it will violate charter rights.
Surely it should be removed from an omnibus budget bill for proper study. Additionally, we should go to international court to challenge the idea that the U.S., through a domestically passed law, has the right to punish commercial banks in Canada.
Helene Le Blanc (NDP)
Mr. Speaker, can my colleague elaborate on the disastrous long-term consequences of this omnibus budget implementation bill?
Over the years, how will this bill, and particularly the change having to do with FATCA, change the principles that are important to us?
What impact will this bill have on the laws that protect Canadians’ privacy?
Linda Duncan (NDP)
For example, let us look at FATCA. This implements the Canada-U.S. intergovernmental agreement on the Foreign Account Tax Compliance Act, or FATCA. Grave concerns have been expressed by many of my constituents about these measures. This is a bill that absolutely should have come independently to this place for open debate and to allow citizens with dual Canadian and U.S. citizenship to come forward and testify to the issues, and for legal experts to testify to the matter and provide advice and counsel to the government on how it might be implemented in a fairer and more advantageous way for Canadian citizens.
Regrettably, the government has thrown it in the middle of a budget bill and there will not be that opportunity.
Hedy Fry (Liberal)
I also want to talk about something some of my constituents are complaining about a great deal, something that we very much oppose.
It is a fact that the government signed an agreement with the United States that will require U.S. citizens living in Canada to regularly file U.S. tax returns and report their property and income to the IRS. Also, Canadian banks must report to the IRS on accounts held by clients with U.S. citizenship. We are creating a problem here. As we heard from other people, this measure brings up concerns about privacy and sovereignty. Constitutional law experts have been saying that this agreement violates the Charter of Rights and Freedoms, yet no one was consulted.
It is interesting that the government goes ahead patting itself on the back but not having discussed it with anyone who should know and therefore making mistakes. I would be generous and kind and say it is with unintended consequences, although I wonder if the government even understands consequences.
The Montreal Gazette ?