Monday, January 16, 2006

Charities and Election Statements: What kind of Open Society is Canada?

Why are people in certain Canadian religious charities afraid to comment on politics in Canada? Oh, I don’t know. Perhaps because officials from the Canadian Revenue Agency have told them in the past that they shouldn’t and, if they do, then, as used to be said in the old gangster movies, “things could go rough for them”. Might that have something to do with it?

Have a look, again, at Bishop Henry’s testimony last summer before the Committees reviewing Bill C-38 where he went public with the name (and phone number) of the CRA official who had phoned him for a “discussion” about his public statements on same-sex marriage, a discussion the Bishop called “harassment”. (See Blog # 87, June 21, 2005 “The Bishop and the Tax Man….”

Could it be a concern that CRA can pull charitable numbers and effectively kill charities, some of which depend upon the continued existence of their charitable numbers for ongoing foundation support? Perhaps.

Might it be a concern that the Courts (see our early LexView #18, “An Uncharitable Threat” ) seem to have supported this sort of restriction? Perhaps.

Just for interest, what sorts of countries restrict the free flow of ideas and debate, particularly around election time? And why does Canada make it so difficult to get charitable status, and then make it scary to keep it? Just what are Canadian governors and bureaucrats afraid of? Could it be public debate that exposes something? The open discussion in a supposedly “Open Society” that might challenge certain “settled” assumptions? That might be the reason that our political debates have settled for such second order “issues” over the years, might it not?

We get the kind of public debate we deserve and ours is usually as flat as much of the landscape in our vast country. Note how we “debate” for example, the place of Section 33 in false terms - - whether it is an “enemy of the Charter” or not, rather than the reality of the dialogue between courts and governments; note how we end up in a generalized discussion about Section 33 rather than the issues surrounding same-sex marriage. When did we last (or ever) really debate abortion and its effects on the culture and that of its sister issue “immigration” in terms of Canada’s declining population, and how the two may or may not be related? Never, that’s when. And don’t hold your breath for such a discussion either.

Even at election time what passes for “debate” are, as the “attack ads” show, just unfair and inaccurate attacks geared for an electorate the governors believe is too stupid to sort fact from fiction.

Canada stands in pressing need of reform to ensure freedom of speech and expression to its groups including charities and a much greater role for them in the debates about governance.

Consider the following part of this recent policy statement from Canadian Revenue Agency which may be found at: Note how grudgingly the document is written; how likely it is to chill the many timorous groups who have obtained their precious charitable status.

6.1 What are prohibited activities?

A charity may not take part in an illegal activity or a partisan political activity. A partisan political activity is one that involves direct or indirect support of, or opposition to, any political party or candidate for public office.

When a political party or candidate for public office supports a policy that is also supported by a charity, the charity is not prevented from promoting this policy. However, a charity in this situation must not directly or indirectly support the political party or candidate for public office. This means that a charity may make the public aware of its position on an issue provided:

a. It does not explicitly connect its views to any political party or candidate for public office;

b. The issue is connected to its purposes;

c. Its views are based on a well-reasoned position;

d. Public awareness campaigns do not become the charity's primary activity.

In addition, a charity in this situation is also subject to the restrictions this guidance places on non-partisan political activity, public awareness campaigns and communications with an elected representative or public official.

Finally, a charity may provide information to its supporters or the public on how all the Members of Parliament or the legislature of a province, territory or municipal council voted on an issue connected with the charity's purpose. However, a charity must not single out the voting pattern on an issue of any one elected representative or political party.

(Reference Number CPS – 022, Effective date, September 2, 2003).

Well, thank you very much! I think it is high time the restrictions on charities were re-thought in light of what we need in Canada and what we are becoming afraid of. I think it is time that officials who can be shown to have used their positions to, in effect, intimidate charities lose their jobs or get posted to Baffin Island without phones. I think it is time that those within CRA who have an axe to grind against certain viewpoints that are legal but perhaps not popular (religion, abortion, traditional marriage) should be brought to book for their misuse of office. People who threaten or start audits at election time (such as happened in the 2004 election to Focus on the Family) should be accountable for their unjust actions. That is what a free society is all about.

Only the dishonest and inept have a fear of open discussion and vigorous debate. Fear in Canada is as deep and chilling as its winter snow and ice. Sadly much of our politics spins like unsuitable winter tires with about the same measure of forward movement in the direction of progress. We need the criticism that citizens and their associations can give - - whether those associations are charitable foundations or not. And now some general guidance.

Some General Guidelines for Religious Charities

Leading Toronto Charitable and Tax Lawyer (and recent Centre Board Member) Patrick Boyle sent this helpful general guide to a CBC Reporter with whom he had given an interview.

The usual caveats apply. It is general only and if groups have particular questions they should seek legal advice.

That said, here are some helpful principles from Mr. Boyle which should go some way to alleviate the icy chill that may have affected some charities to date:

  • Churches can host an all-candidates meeting
  • Churches can use their premises as polling stations
  • Churches can rent their hall out to a particular candidate if they do that in accordance with their normal church hall rental policies.
  • Churches can have the same position on a matter as a particular party may have. That alone does not constitute supporting the party. This is an area where care and prudence is needed.
  • Churches, like other charities, can individually or collectively urge their members to carefully consider their positions on matters. They can also urge their members to participate in the election by voting, asking questions etc. This can be done from the pulpit (if one wished to) or in a pastoral letter to members.
  • Charities can maintain a public listing showing Canadians how all MPs or Senators voted on particular legislation. This is not considered partisan but an informative part of democratic participation and engagement
    • With respect to last year’s same-sex marriage bill, query how taking either side could be considered political given the Prime Minister declared this to be a free vote not to be voted along party lines?
  • Furthermore, all charities can, within tolerances, have a degree of non-partisan political activity related to their area of charitable work.
    • For example: food banks or shelters may speak up on social welfare legislation, organisations educating Canadians about drinking and driving may advocate tighter laws or enforcement or sentencing, humane societies can advocate for more animal welfare legislation and youth workers may speak up on gun control.
  • Similarly, religious charities are not shut out of the public square debate on social issues, including those involving questions of morality.
  • The permitted tolerance is in the range of 10-20% of the charity’s resources that can be used for such non-partisan related political activity.
    • In my experience, this restriction is rarely an issue for Canada’s active charities. They know the limits and they have policies and practices in place to identify and allocate costs to them to ensure they remain on side the tolerance. It is rare for active charities to even come close to the permitted levels. Exceeding the permitted tolerance will also be grounds for deregistration.
  • If their supporters want to be more involved in political advocacy, some have established similar not-for-profit organisations that are not registered charities. Donations to such organisations do not generate tax receipts to be used for income tax credit or deduction purposes.
  • Charities can be involved in public awareness campaigns on social issues. Provided these do not have an explicit call for political action, these efforts are not considered political activities but a related part of the organisation’s charitable activities.
    • Public awareness campaigns and activities must be on issues related to the charity’s work and must be informed and reasoned rather than purely emotional appeals.

CENTREBLOG: Volume 110

Iain T. Benson©

Tuesday, January 10, 2006

European Experts, the Slovak Republic and the Holy See: Why “One Size Fits All” doesn’t work for Medicine (or Education) any longer.

The rhetoric of the day in most Western countries and increasingly elsewhere, such as South Africa, is of “pluralism” and “diversity”. Yet look carefully and what is going on can be anything but. Human rights can often be a cover for human wrongs and respect for diversity often boils down to a confrontation between the Godzilla of international power and regulations and the Bambi of religious diversity - - Bambi loses.

A recent example occurs in Europe and concerns the question of diversity within the state in relation to health care and medical ethics. We have often discussed the failure of what passes for contemporary ethics on this site (see, for example, Blogs Numbers 91, 99 and 101) several times in relation to Pharmacist associations that fail to comprehend the proper nature of conscientious objection or why a “duty of referral” is invalid. This article is to address the same sort of failure but on a national and international level and deals with the failure to respect valid alternative opinions to practices that have come to be accepted by some, but not all.

The question at issue is whether or not there is proper accommodation within the state for both divergent viewpoints and divergent standards when it is clear that an area (such as health care or education) can no longer reasonably claim to command a “one size fits all” standard. While the question of abortion is hotly debated, the fact that the Catholic faith and its institutions do not support abortion is something as clear as a spike. Here the question is whether the state - any state - or any international committee has the validity to tell the Catholic Church that its beliefs have no place in a free and democratic society. For that is what is going on here.

It is important to note how one side of an argument (say on abortion) seeks to claim dominance and use benign language (such as “standards”) to do so. It is important to keep these kinds of attempts front and centre so as to note how they work and to note that they can have national and international dimensions as we shall see.

The “one size fits all” folks - - those who favour state dominance usually, want to resist diversity yet they use that language and the other terms “equality” and “fairness” to mask their attempts at using state power in service of private coercion.

A stunning example of this institutionalized intolerance comes recently from a group of “European Experts” reviewing an agreement entered into by the Slovak Republic and the Holy See. The Draft Treaty may be found here:

The European Experts’ Opinion may be found here once it is posted (it is not yet up):

Under the draft agreement, the Slovak Republic, among other things, "undertakes not to impose an obligation on the hospitals and healthcare facilities founded by the Catholic Church... to perform artificial abortions or assisted fertilizations". This is nothing but the formalization of what should be the case anyway. Some years ago in British Columbia, Canada, for example, a group called the Denominational Health Care Facilities Association struck an agreement with the provincial government to ensure that their “denominational values” were not going to be restricted by provincial Health Care restructuring. That group involved Jewish, Catholic and Protestant health facilities and the agreement they struck was a model of what should happen in an open society that tolerates genuine diversity.

One would have thought this was fine. Religious facilities such as hospitals or schools ought to be able to march to a different drum shouldn’t they? The belief by some on a contested matter (abortion) surely ought not to force everyone to go along with it. It is as if a Jewish kitchen in a Jewish health facility is being ordered by the state to serve pork! Abortion is as obnoxious to Catholics and their facilities as serving pork in the kitchen would be to Jewish ones. If you like pork, eat somewhere else. This means, in Israel, you may have to go farther to find some. Too bad, because the alternative runs roughshod over proper freedom and diversity.

With this background, let’s look a bit closer look at the European “experts” opinion. Under the guise of “one size fits all” (assumed, not expressed) they seek to bulldoze over diverse sub-communities with the Slovak Republic. The understanding of divergent delivery systems seems to stop when the pseudo pluralists (for so they are) review the matter.

An article posted recently on the BBC News website, (see BBC News Website: “Slovak Abortion Move Worries EU” Friday January 6, 2006 gives an interesting slant to the issues by failing completely to ask the questions about diversity and pluralism. Basically, it gives the impression that the only issue of relevance is whether women can get access to abortions in a largely Catholic country such as the Slovak Republic. The questions related to whether Catholic hospitals etc. should be subsumed to state policies is avoided in favour of a focus only on a woman’s “right of access to abortion”. The journalistic bias was showing rather badly here.

The answer for citizens who believe abortions to be valid health care and who have governments who do not (a perfectly reasonable viewpoint) is to set up their own delivery systems - - such as freestanding clinics. To attempt to command the international Godzilla to stamp out the regional Bambi is common but wrong. Here there are two “Bambis”: the Slovak Republic and the Catholic Health Facilities within it. The experts seek to use an analysis of what they deem to be state responsibilities to put pressure on the subsidiary institutions of a religious community. The “experts” fail to distinguish between the two. That is not fair or properly respectful of diversity.

It happens to be hospitals founded by Catholics that oppose abortion as murder that are entitled to hold this viewpoint and have nothing to do with the procedures. Religions, after all, have equality rights protection as well as pro-abortion women do.

The BBC, as you can see below, scarcely points out that the agreement is focused upon Catholic facilities. The Agreement, after all, was between the Slovak Government and the Holy See and the real issue, missed by the BBC, was that the "experts" seem to see a requirement to refer for abortions as something that can reasonably be required of a religious institution: it cannot. As earlier blogs on this site have shown, such a requirement is philosophically flawed and cannot be the basis for an ethical requirement of referral. The Canadian Medical Association, for example, no longer imposes a duty of referral on those conscientiously opposed to abortion and their right to do so. The “experts” pay no attention to religious qualms about moral cooperation with evil (as the Catholics would see it).

Professor Olivier De Schutter, for example, the head of the panel of lawyers from the EU Network of Independent Experts on Fundamental Rights, says the articles relating to religious conscientious objection raise the most concern. In an article on the Slovak Agreement he is quoted as saying that it was "far-reaching, considering a very large majority of healthcare providers in Slovakia are Catholics and might exercise their right to conscientious objection".
He said the treaty did not oblige medical staff in such cases to refer the person seeking advice to another healthcare provider. Why should it?

The BBC author (not identified) states: “human rights bodies have repeatedly said that when abortion is legal in a country, access to abortion must be provided to all without discrimination.” Well, yes and no. They have generally distinguished between religious hospitals and those that are not founded on this basis.

"The right to religious conscientious objection may be and should be respected, but with safeguards that make it possible for women to seek legal abortion," Professor de Schutter told the BBC's Europe Today programme. "This is the problem the draft text may be posing." Here we see the iron fist under the velvet glove of “diversity” and “tolerance” language.

The BBC article, continues: “Richard Fides, a spokesman for Slovakia's justice minister, rejected claims in some European media that the document was basically an abortion agreement.”

"That is sheer nonsense," he told the Slovak commercial television station TA3. "The objective of the agreement is to ensure that every individual can apply their right to the objection of conscience. It is neither right nor just for a doctor-gynecologist, who is for example a supporter of the culture of life, to be forced to perform an abortion."

The Slovak Republic and any others who try to come to agreements with religious bodies might be in for a tough ride from the Godzilla of International Human Rights. I, for one, hope they will have the courage of their convictions together with many countries (who understand the proper respect for diversity and religious freedom) to do likewise and ignore the opinion of “experts” such as those who authored this rather stilted document out of Europe. Fortunately, it is only an “Opinion” and has no binding legal authority and, if ignored by the legislators, no influence going forward except, perhaps, to give us further evidence of the way that threats to religion and genuine diversity now come packaged in the garb of human rights.

CENTREBLOG: Volume 109
Iain T. Benson©

Wednesday, January 04, 2006

Democracy and the Montreal Swinger’s Club Case: Recalling that some Important Things are also not Sufficient.

What directs the course of a nation? Is it merely majority will of either the parliamentary or judicial benches? What, in turn, guides that majority will of bench or government? Is ruling simply the exercise of raw power or is such power directed to a shared purpose or some kind of moral vision? If “harm” is erected as a useful guide we might well ask “harm to whom, by whom and in relation to what?” For, like beauty, harm is sometimes in the eye of the beholder and those who do wrong assert frequently that it causes no harm when those who think it wrong measure harm in other ways and believe that harm has been done. Harm then, like democracy, needs something against which to measure it. Standing abstract and by itself it is insufficient.

There will be occasion here on this site and in the Centre’s LexView, in the near future, to discuss in greater detail the recent “Montreal Swinger’s Club” decision of the Supreme Court of Canada, R.v. Labaye (December 21, 2005)

What do we actually mean by democracy anymore? It is common now to hear people endorse democracy with a wide and windy confidence. They assume that simply having a system that appears to give everyone the opportunity to vote every few years means all is fine with the state that uses this system.

To say that a country is “free and democratic” makes such people hum like bees newly filled with honey. This is, however, a dangerous approach to an important and complicated idea. Democracy is one of those things philosophers speak of as “necessary but not sufficient.” Like technology, democracy cannot be, in a sense, its own guide.

It is a process and the contents and end toward which the whole thing is focused lie elsewhere. If we lose sight of the contents or articulated ends then there is no ability to judge the processes according to whether they are “right” or “wrong” or “improving” or “declining” because these standards, being moral, are external to the processes themselves. More than that, there is going to be a lack of passing on what is necessary to maintain the established systems. That is our condition and our current peril.

The order of politics, like those of law or education, is like an ocean liner. Once moving in time and having set certain practices in motion, it can continue for a time on what amounts to its own momentum. The whole of a society is like that including its subsidiary aspects such as the state. But at some point it is drift not self-powered direction towards a determined end that gives each separately and all together their continued movement and the illusion of control.

It is difficult to pin down exactly the moment (if there even is just one) when systems move from purposive direction to drift. It seems clear, however, from all sorts of signs, that we are well into that phase at the moment in each of the areas just mentioned (politics, law and education).

Ours is an age that loves its processes but is increasingly unclear why we have them or what moral framework holds them in place; yet the respect for a certain sort of democracy is a moral vision not sustained merely by democracy itself. When we have reached the politics or legal analysis of drift, however, people can tend to think that the processes themselves are self-sustaining: they aren’t.

Democratic processes and politics are no guarantee, in themselves, of a democratic state continuing on the course(s) necessary to the kind of freedom that maintains civil society. Similarly, legal processes are not, by themselves, self-sustaining. The law must be judged as “good” or “bad” beyond the mere formal processes of legal rulings. This debate, between positivism and “natural law” is an old one and the commonplace of law school jurisprudence courses. It would seem, however, that certain aspects of this discussion need to be re-understood by contemporary judges.

Law and morals are necessarily related otherwise why is there a moral obligation to obey the law? To set the law free of such obligation by endorsing formal conceptions of law as process is to make law incoherent. Criminal Law too, as the Law Reform Commission of Canada said in its 1973 study Our Criminal Law, is a “moral system”. One separates law and morals to the peril of both and setting out the proper boundary of law and morals (for not all immoral things ought to be the subject of laws) is always a difficult task calling for the exercise of great learning and prudence. To abandon a moral vision entirely is a disastrous mistake. I very much fear we are heading in that direction.

Some years ago, Jacques Maritain wrote a book entitled Primauté du Spirituel (English transl. J.F. Scanlan, as “The Things that Are Not Caesar’s, London: Sheed & Ward, 1930). In it he included an appendix giving three meanings of the word “democracy” (pp. 131 – 133). Those interested may locate his analysis there. The purpose of this short article, however, is to make the observation that a slavish devotion to democracy without more is bound to fail in the end as it cannot sustain the kinds of civic sentiments necessary to maintain itself. This view, in the sufficiency of simply the Sovereign Will of the people, Maritain quotes as the third, the Rousseau kind of democracy; which Maritain refers to as “political pantheism” and views as a “religious myth”.

This view of democracy is, in short, a belief system, vying with other belief systems for dominance.

Now this kind of observation has been made by many people in many different settings and is not new. It needs restating however when, as now, the moral horizons of our democratic project seem to be occluded by a fog or smog of well-intentioned vacuity.

In the Labaye legal decision, referred to above, the moral conception of citizenship has been virtually obliterated by recourse to a “harm principle” of such open-endedness as to be essentially useless - - a fact noted by the two dissenting judges. In this case, dealing as it does with the court’s role as what used to be known as custos morum (the guardian of morals) we are forced again to look at morals, law and the limits of democracy itself. But that is for another day. First is the general problem of placing too much stock in the general processes of democracy, or, as we could put it more succinctly, “democracy on its own”.

In a passage written many years ago that addresses the dangers of attempting to make of democracy a form of imminent religion the Dominican philosopher and theologian Réginald Garrigou-Lagrange (1877 – 1964) warned:

Democracy, lawful in itself may degenerate into democratism, into a kind of religion which confuses the order of grace and the order of nature or tends to reduce the supernatural truth of the Gospel to a social conception of human order, to transform divine charity into philanthropy, humanitarianism and liberalism.... [This] democracy-religion ...completely falsifies the idea of the virtue of charity and at the same time that of virtue indissolubly bound with justice. (Quoted in Jacques Maritain, The Things that Are Not Caesar’s (London: Sheed & Ward, 1930) pp. 152-53.

It would seem that the time is right to call for a rethinking of certain basic relationships. Law and Politics must get over their current metaphobia (fear of metaphysics) and begin to ask again the central questions about the relationship between power, morals and the common goods of society.

If this does not occur, serious harm will come to all of us, including those who no longer have a meaningful measure of what “harm” entails.

CENTREBLOG: Volume 108
Iain T. Benson ©