I recently wrote in these pages that improving the laws under which charities operate is akin to the Toronto Maple Leafs not winning the Stanley Cup: both have taken way too long.
Surprisingly, charity law and the Maple Leafs intersect once again. The Leafs have become a legitimate contender by acquiring John Tavares, while the courts have granted charities greater access to conduct political activities. Both can win now.
The just-released Ontario Superior Court decision squashes the notion that charities cannot fully engage in political activities. The charity Canada Without Poverty took the Canada Revenue Agency to court over its ruling that the group should lose its charitable status. The accusation: they spent too much on political activities.
Yet, the group argued that public advocacy for policy is fundamental to its charitable purpose of stopping poverty. Poverty does not go away with soup kitchens but needs laws and policies to change. And the court agreed.
In writing his decision, Justice Edward Morgan outlined the difficulty of defining “political,” noting that even trying to define “political” is “political.” That makes your head spin faster than John Tavares on skates, yet raises an important point: under the rules, lobbying wasn’t considered “political,” but encouraging Canadians to contact their MP to change a law was “political.” Eh?
The court noted that “Most of [their] activities are public forms of expression that represent the Applicant’s effort to engage its constituency in democratic processes to relive poverty …” As a result, Morgan ruled that their right to freedom of expression under the Charter was infringed upon.
No one has ever argued that charities should be partisan in supporting any political parties or candidates. It’s entirely unreasonable because that would represent an abuse of their tax-exempt status.
Moreover, some observers have an outdated understanding of charities, where only shelters and churches exist. This is similar to saying that communication is only through the telegram, yet we live in the age of the internet. Charities are no different. In this case, the purpose of relieving poverty is with the sharing of ideas, not nutrition.
The Trudeau government has repeatedly promised to overhaul the charitable sector, including in their recent 2018 budget. Yes, some meaningful progress has been made: the feds ordered a stop to new politically motivated audits on charities and suspended the existing audits launched by the previous government.
Yet the work of reform has barely begun. There has been a perplexing level of disconnect between high political enthusiasm for legal reform and action taken to date.
This court decision gives the prime minister a clear choice: appeal it and break your promise, or let it stand and fulfil an important election commitment. Just like I can’t wait for Tavares to hit the ice as a Leaf, I cannot wait for Trudeau to make the right choice.
Burkhard Mausberg is a big Maple Leafs fan and has served as the CEO of charities for 25 years. He is currently the CEO of Grow Ontario Together.
https://www.thestar.com/opinion/contributors/2018/07/22/charity-laws-must-evolve-with-the-times.html
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