What's charitable status, and why is Harper's Conservative government obsessed with limiting it?
Nor were environmental concerns on anybody's radar, except in very local situations (e.g. contamination of a local stream by effluent from a leather tanning operation). Since that era, judges and courts, unwilling to stray far from the comfort zone of legal precedents, have fallen back on notions of charity that are still, at best, over 100 years old.
The generally recognized basis for excluding “political” advocacy from charitable purposes has been another British case, from 1917, entitled Bowman v. Secular Society Limited. In this case, the judge, Lord Parker, declared: "A trust for the attainment of political objects has always been held invalid, not because it is illegal, for everyone is at liberty to advocate or promote by any lawful means a change in the law, but because the court has no means of judging whether a proposed change in the law will or will not be for the public benefit, and therefore cannot say that a gift to secure the change is a charitable gift." (Emphasis added)
That legal gap is big enough to drive a truck through – and governments have been doing that ever since – none more energetically than the current Conservative government.
Themes like the advancement of women's rights, getting rid of nuclear bombs, or pressing for improved air quality are deemed to lie outside the usual purview of this fourth definition – not because they really lie outside "purposes beneficial to the community as a whole", but because the timid courts have left the decision of “beneficial” up to governments’ sole discretion.
Governments, in their turn, have been loath to address this gap between charity law and contemporary reality. This is in part because they prefer to limit what amounts to an indirect government subsidy – the loss of income tax paid by donors to charitable organizations.
But in addition, governments have been unwilling to give even a modest fiscal advantage to groups that challenge current policy.
Just as Queen Elizabeth 1, over 400 years ago, kept religion away from “charity” for political reasons, governments today hang on to every prerogative that allows them to limit advocacy for changes in government behaviour.
As long as there is one definition of charity that is vague, and three others that are scarcely relevant any longer, governments can save money and more important, gain licence to limit – or in Stephen Harper’s case, to punish – any group that proffers criticism of public policy. In so doing, the government of today is acting very much like Queen Elizabeth I did over 400 years ago.
When an organization like Physicians for Global Survival has had its charitable status stripped away, you can now see what that really means.
Charitable tax law affords an opportunity fro the federal government to attack groups it doesn't like, while cloaking its behaviour in hoary anachronistic enactments.
Fraser Institute: educational?
On the other side of the coin, charitable tax law allows groups which lobby for things that a particular federal government favours to steer clear of CRA disapproval.
Such groups simply have to proclaim that they pursue "education" or its handmaiden "research".
Such a stance affords the CRA ample legal justification for leaving them alone.
A perfect example of this approach is used by the Fraser Institute, a prominent corporate lobby group. It carefully describes itself as “…an independent Canadian public policy research and educational organization" and always identifies some form of nominal "information" or "educational purpose" or “research finding” in its materials or its presentations.
But more important – and unlike PGS – the Fraser Institute espouses beliefs and attitudes that are closely aligned with those of previous governments, and especially with those of the Harper administration.
Inserting nominal educational components into its advocacy pronouncements affords one level of protection for the organization’s charitable status.
But coupled with the wide discretionary latitude given to the federal government under Canadian charitable tax law to declare something “beneficial”, the Fraser Institute can happily enjoy immunity from any challenge under Canadian charitable law.
Physicians for Global Survival lost its charitable status, and organizations like Greenpeace, the Canadian Association of Physicians for the Environment or the Canadian Civil Liberties Association haven’t been able either get it or keep it, because of this same wide discretionary latitude.
If the federal government doesn’t like what you’re saying, you’re out. .
Charitable tax law is widely acknowledged to be grossly outdated.
On the other hand the law is deeply attractive to elected political players, because it allows them to protect the groups they favour, as long as the groups play the "education" game and also read off the same political page as they do.
Governments throughout the English-speaking world have from time to time struck committees and advisory bodies to look at renovating charitable laws, but so far, none has made much headway.
The Canadian effort, according to lawyer Blake Bromley, is the worst of the lot.
Previous Canadian governments felt that the abolition of nuclear weapons made sense.
Stephen Harper doesn't agree, especially because nuclear weapons abolition has been explicitly tied to one of his favourite things, nuclear power.
So he has used Canada's outmoded charitable status laws to punish the pre-eminent group in Canada that espoused both these aims.
The real question is: will taking this aggressive step – combined with all his other efforts to stifle real dialogue about so many important issues – turn out to have been to his advantage, or to his disadvantage?
Time will tell.