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Is the Federal Government silencing charities? Or is charitable law just outdated?

Is the federal government silencing charities it doesn’t agree with?

I don’t know. But one thing is certain… I shouldn’t be in a position to ask that question. The laws of this country shouldn’t be so unclear that such a thing is even possible. Our charitable laws in Canada are out-dated and far too open to interpretation.

No government should find itself vulnerable to criticism that it is silencing its opponents – whether it is true or not. Removing restrictions on charities for engaging in public policy development would go a long way to preventing governments from being susceptible to such criticism.

According to the Canada Revenue Agency, charities must not spend more than 10% of their resources on political activity. This comes from a time in the late 1800s and early 1900s when charities were responsible for service provision to the poor and disabled. The charitable sector today is far more diverse, largely at the public’s demand.

Political Activity versus Partisan Activity

First thing to know is that these are very different things: “political activity” is defined by Canada Revenue Agency as any activity that seeks to change, oppose or retain laws or policies. “Partisan activity” is defined as supporting or opposing a candidate or political party.

Charities should obviously NOT be involved in partisan activity under any circumstances. There is no reason to think that they are, and the current laws governing charities make this point crystal clear.

Charities should, and must be involved in the shaping of our country’s policies, laws and regulations as they have significant expertise to offer.  If you were going to ask someone in this country how laws should change to reduce drunk driving – you would likely want to seek the advice of MADD and its supporters. If you want to shape new legislation around reducing carcinogens, you’d likely want the Canadian Cancer Society to be actively involved. If you are creating a new National Park or protected area, CPAWS would be the obvious choice.

Why would we tell some of the best qualified experts in their field to limit their participation in shaping the laws of our country? This doesn’t make sense.

Shaping public policy and encouraging Canadians with an interest in those issues to be involved in shaping these policies is a no-brainer. Should it be charitable at any percentage? Yes. If it is related to the charity’s expertise and mission, as well as expressed reasonably – I can see no reason why this wouldn’t be considered charitable without limitation. I suspect most Canadians would agree.

What isn’t charitable?

We are starting to hear that some of the charitable work we do may no longer be deemed charitable. For example, we are hearing that working with companies to improve their environmental practices may now be interpreted as giving some companies an economic advantage… which would apparently not be charitable. Yet this is an important way we work collaboratively with other sectors to enhance environmental management.  We are proud of this part of our work. Working with forestry, mining and other resource companies to improve their practices to protect wildlife and nature seems like a very reasonable and charitable thing to do – and will have a positive impact on all of us.

What should be done?

The law needs to change to provide charities with the unambiguous right to participate in public policy work and to help shape government decisions. The law needs to be modernized from a 19th century perspective on charities to a 21st century model that encourages expertise, public participation and law-making to work together in the public interest. This change is also in the interest of governments who might be subject to criticism for appearing to be unfairly targeting charities that do not share their perspectives.

Corporations in Canada can participate in political activity (as defined by CRA), write off 100% of their expenses on their taxes and are not subject to limitations. Charities are restricted to 10% of their resources – and donors only get a 15 to 30% tax credit on their own donations.

How does all of this affect CPAWS?

To be clear, CPAWS (Canadian Parks and Wilderness Society) is not being audited by CRA.

While unnecessary at this time, we’ve had our activities reviewed by lawyers to determine which are considered political and which are not – and in the process of clarifying these interpretations, our percentage of political activity has actually diminished. Based on our lawyer’s best advice, we are well below the 10% threshold. But a slight change of interpretation of the law by a bureaucrat could easily put CPAWS over the threshold. This wouldn’t even require a change in law, simply a different interpretation of an ambiguous law. While CPAWS’ mission and charitable objects were approved almost 45 years ago – and accepted again in 2012 – we are concerned that new interpretations of the law could lead to a decision that retroactively deems us to be a charity with a mission that is ‘essentially political’ because we work on public land and water conservation – all products of government policies and decisions.

This is untenable. This is why we are openly speaking about our concerns and hoping that decision-makers will take an important step towards eliminating this artificial limit on shaping public policy and legislation.

Might speaking out on charity law make us more vulnerable than we were before? Possibly.

We’re a reasonable group of people with a clear mandate to help preserve Canada’s wilderness – 90% of which is held by governments (provincial, territorial, federal, aboriginal and municipal) in the public trust. We believe that our work to encourage the conservation of public lands is entirely charitable and our involvement in public policy is a key part of the work we do.

I’m willing to stand up for that.

Reprinted with permission from CPAWS.


About the author

Éric Hébert-Daly has been CPAWS’ National Executive Director since April 2009. He was previously Executive Director and Chief Financial Officer for one of Canada’s major political parties. Éric is fluently bilingual, a graduate of Concordia University’s School of Community and Public Affairs, and a Certified Lay Worship Leader for the United Church. He has worked with municipal, regional and national groups across Canada and has focussed his attention on social justice, ecological and human rights issues throughout his career.

Eric Hebert-Daly

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