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©