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.

The post Oral Questions: Canada-US Relations appeared first on Elizabeth May.

“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

The post Implementation of FATCA Likely Unconstitutional, Says Leading Constitutional Expert appeared first on Elizabeth May.