The intergovernmental agreement, the so-called IGA between the U.S. and Canada, has not been ratified as a treaty by the United States. We are treating it as though we have treaty obligations. The U.S. has not ratified it. We have been warned by the leading lawyers in this country, including Professor Peter Hogg, our leading constitutional expert, that this FATCA would violate section 3 of the charter. We have been warned by Professor Christians, who is the Stikeman Chair at McGill, that this FATCA would not need to be implemented to protect our banks from U.S. retaliation, that the U.S. would not have an automatic legal right to pursue sanctions against the banks based on something that is as outrageous as the extraterritorial application of U.S. law, treating Canadians citizens now in two classes. Those two classes would be those who have some contact with the United States and those who never did.

I ask if my hon. colleague would agree with me that we will see this FATCA before the Supreme Court of Canada where, once again, one of the current administration’s laws will go down to defeat.

Mike Sullivan: Mr. Speaker, yes, this is yet another bill that is likely to find its way to the Supreme Court at some point and be ruled ineffective and that it is not possible to have this bill, particularly the FATCA portion of it. That is something we face, apparently, almost on a daily basis. The government brings forward laws that are in violation of Canada’s charter and Constitution and, in fact, of other laws that the government supposedly wants to uphold, like privacy laws.

We just cannot continue this way. We cannot be bringing forward laws that are not in compliance with the other laws of this country.

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This is a list of the people, and I am sure there are many in her riding, who would be affected by FATCA. It is far more than U.S. citizens. According to a legal expert, it would apply to Canadian citizens who are also U.S. citizens; Canadian citizens born in the U.S. who thought they lost their citizenship; Canadian citizens born in the U.S. who have lived their whole lives in Canada, having come here at maybe six months old; Canadian citizens with green cards; Canadian citizens who physically spend a certain amount of time in the U.S.; or, Canadian citizens sharing financial accounts with U.S. persons, for example one who is married to or shares a business venture with a U.S. person.

This is why it is estimated that approximately one million Canadians will be affected by FATCA.

Does the hon. member for Renfrew—Nipissing—Pembroke have some concerns for those constituents within her riding?

Cheryl Gallant: Mr. Speaker, the residents of Renfrew—Nipissing—Pembroke who pay their taxes, who are not hiding money, do not have to worry. They are in touch with my office and we are helping them through this.

However, let me tell some more facts. AECL is a key player in the global non-proliferation and de-proliferation efforts by doing the following:

Therefore, not only are we doing great things in medicine and producing economical, sustainable, clean energy for electricity, but we are helping to keep the world a safer place.

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I do not think we have had any estimates put forward of what it would cost the Canadian banks, which we know they would not absorb but pass on to consumers.

Not only is FATCA discriminatory towards approximately one million Canadians, not only is it likely to waste government resources in fighting off a Supreme Court challenge on its constitutionality, which the federal government is undoubtedly going to lose, but what will it cost Canadians?

I know that the official opposition has been involved on the banking charges and fees. Has the hon. member seen any estimate anywhere of the cost to Canadian banking customers?

Imagine the cost of every single account of every single customer having to be examined by the banking institutions and, for those who have any U.S. connection, having to be turned over to the CRA to turn over to the IRS.

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Scott Armstrong: Mr. Speaker, as I said, I can remember the finance minister standing in the House and addressing opposition questions similar to this one on this deal. This government conducted a tough negotiation with the United States of America, and we made sure that we put a negotiation in place to protect the privacy and the economic concerns of people who might be affected by this legislation that was put forward in the United States.

As for the actual financial costs, those will have to be determined as we move forward, because we cannot predict what is going to happen in the future. However, I can say that we will invest whatever money it takes to protect the finances and privacy of all Canadians who could be affected by this legislation.

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Does hon. friend from Victoria not agree with me that it is entirely likely that once again the House is passing legislation that will find its way to the Supreme Court of Canada, where FATCA will be ruled to violate Canadian charter rights?

Murray Rankin: Mr. Speaker, I would like to salute and thank my neighbour and friend from Saanich—Gulf Islands for her intervention and her wisdom in pointing out the FATCA provisions in the bill. We already know those provisions will go to the Supreme Court of Canada. We already know the Conservatives have received legal advice and are moving in that direction. It was Peter Hogg who the government relied on for its ill-fated attempt in yet another omnibus budget bill to deal with Mr. Justice Nadon and that debacle. He was its expert, he prepared a written legal opinion to the effect that it was unconstitutional, so it will go to the Supreme Court of Canada.

We made many amendments that are before us tonight which we will ask the government to vote on. They would clarify that it need not occur. They would clarify that FATCA would not override other sections, such as the human rights legislation or, indeed, the Charter of Rights and Freedoms. At committee stage, those were voted down. They will be before us again at report stage.

There is no doubt that this is headed to the courts for yet another useless waste of taxpayer money as the Supreme Court will tell us once again that the government initiative is ill-considered.

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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 LeBlanc: Mr. Speaker, I think that the Conservative member, the Minister of State for Western Economic Diversification, clearly proved that this portion of Bill C-31 should be studied separately.

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.

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.

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This bill does not have anything about keeping communities safer. However it does, I think, have issues of interest to his constituents and anyone with any tangential connection to the United States.

I know that some members today have referred to people who are dual citizens. I can assure members there are many Canadians who are not dual citizens, but the ambit of the FATCA would require Canadian banks to turn over private information about people who have no idea that they could be considered to have any connection whatsoever to the United States, for tax purposes.

This bill, according to many constitutional law experts, would violate the charter. It is unprecedented, in terms of assuming that a foreign power could have access to information about Canadian citizens.

I would ask my hon. friend if he does not think it would be preferable to pull the FATCA sections out of this omnibus bill and subject them to a court review to ensure they are charter compliant?

Wladyslaw Lizon: Mr. Speaker, I am familiar with the issue she is raising. As members know, our government reached an agreement with our neighbour, the United States of America, on that very issue.

Under the terms of the agreement, there would be no breach of privacy. There would be no information exchanged between the governments to which she is referring.

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On the U.S. side of the border, there are concerns raised that because the treaties have not been ratified through the U.S. Senate, these may not be legally binding treaties in any case; and on the Canadian side of the border, no less a legal expert than Peter Hogg, former dean of Osgoode Hall Law School, has written the advice that this very likely will violate section 15 of the Charter by treating some Canadians differently from others.

More than 30 years ago, I learned constitutional law in a textbook he wrote.

What will the minister say to its constitutionality?

Jim Flaherty: Mr. Speaker, I was taught by Peter Hogg as well. I got an A in the tax course.

The question is an important one. It is important for about a million Canadians who also happen to be citizens of the United States.

The Americans initially proposed that there would be a 30% withholding tax and there would be direct reporting by Canadian banks to the IRS. We got rid of that. They have agreed that we will use our existing framework under the Canada-U.S. tax treaty, which has been successful.

No new taxes will be imposed. The CRA will not assist the IRS in collecting U.S. taxes.

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“It is already unthinkable that the Harper Conservatives would consider putting the interests of the United States before those of the Canadian citizens whose lives have been turned upside-down as a result of the FATCA”, said MP Elizabeth May, “but it is worse still that they would do so in violation of the Canadian Constitution.”

Mr. Hogg’s letter is dated December 12, 2012 and was submitted as part of the call for public comments as part of the ongoing negotiations. “To the extent that any implementing legislation adopts provisions similar to those found in the Model IGA, in my opinion, the legislation would violate s. 15 of the Charter,” he writes. “The source of this problem is the fact that the Model IGA requires financial institutions to treat people differently based on such innate characteristics as place of birth or citizenship.”

The Model IGA that is being proposed would compel Canadian financial institutions to disclose the private financial information of their clients to the IRS. This would be, in Mr. Hogg’s opinion, in clear violation of Section 15(1) of the Charter, which prohibits discrimination on the grounds of “national or ethnic origin”.

“Professor Hogg is Canada’s foremost constitutional expert, so this letter should provide some cause for hope to the one million Canadians, including hundreds of my constituents in Saanich-Gulf Islands, who have been threatened by this financial witch-hunt,” said Elizabeth May. “Yet in a political environment where the Harper Conservatives are willing to push through legislation that is likely unconstitutional, as raised last week in the House of Commons, I will continue to be vigilant on behalf of my constituents and all other Canadians caught up in this sorry mess.”

Note: The Green Party of Canada’s backgrounder on FATCA

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Green Party leader Elizabeth May is calling on Canada to avoid being party to a U.S. law seeking to collect financial information on Canadians, arguing that it amounts to a violation of privacy.

Her appeal comes on the heels of regulations released by the U.S. Treasury Department mandating that foreign financial institutions report information on American taxpayers investing money abroad – the result of a major effort to crack down on tax evasion.

“I continue to hold (Finance Minister Jim) Flaherty to his commitment to protect Canadians from the extra-territorial application of U.S. law,” May wrote in an email to iPolitics about the Foreign Account Tax Compliance Act. “FATCA is moving fast down a track that violates our rights as Canadian citizens.”

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