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All This CRA Bickering Is Distracting Charities From Their Real Work

08/22/2014 12:05 EDT | Updated 10/22/2014 05:59 EDT
Dražen Lovrić via Getty Images

The Parliamentary Secretary to the Minister of National Revenue says that it is "absolutely shameful" to suggest that Canada Revenue Agency officials auditing charities could "somehow fall under political influence." With that highly calibrated sense of righteous indignation, one hopes that Conservative MP Gerald Keddy does not have to venture beyond the purified environs of Parliament Hill to the real world.

Fortunately, the Standing Committee on Finance of the House of Commons meets in private so Mr. Keddy was spared the indignity of listening to the "shameful" views of Canadian charities actually undergoing audits for political activities. As a member of the Finance Committee, he was able to block the call for a probe into CRA's political activities audits of certain Canadian charities.

Some of the concern about political influence stems from the fact that the Director-General of Charities Directorate conducting the political activities audits came to the CRA from the Privy Council Office. Cathy Hawara, not charities, told the Globe and Mail that CRA gave consideration to political leanings in charity audit selections.

Listening to a politician rant that it is beyond the realm of possibility that a government official could "somehow fall under political influence" does not convince even Canadians who want to believe that government officials operate independent of political considerations. The press constantly bombards us with allegations that not only Charities Directorate appointments, but also appointments to courts, "somehow fall under political influence."

This year's unprecedented battle over the Prime Minister's appointment of Mr. Justice Nadon from the Federal Court of Appeal to the Supreme Court of Canada seems to have been highly politicized.According to Irving Cotler, that battle is about to be repeated with the movement of Mr. Justice Mainville from the Federal Court of Appeal to the Quebec Court of Appeal. According to The Lawyers Weekly, Justice Minister Peter MacKay has not expressly denied the allegation that Justice Mainville has been moved to facilitate his selection as Justice LeBel's replacement to the Supreme Court of Canada this fall.

Every charity whose registration is revoked by CRA for "political activities" must begin the court appeal process in the Federal Court of Appeal. In the last 30 years, the Federal Court of Appeal has not once allowed an appeal by a charity against CRA's decision to revoke. The Supreme Court of Canada has never once granted leave to appeal a revocation decision of the Federal Court of Appeal. It is in the courts that the real fight about the rights of charities to engage in advocacy and policy discussions on public benefit issues should take place.

We know from the process of Justice Nadon's appointment to the Supreme Court of Canada that each of the candidates supplied the selection panel with five rulings. One wonders whether Justice Mainville will submit the ruling written by him, and concurred in by Justice Nadon, in which the Federal Court of Appeal refused to adopt the decision of the majority of the High Court of Australia in Aid/Watch "that in Australia there is no general doctrine which excludes from charitable purposes 'political objects'."

In a recent Huffington Post piece, I referenced last month's decision of the Charity Tribunal in England which held that "promoting the sound administration of the law" was a charitable purpose under the common law. I went on to reference this month's decision of the Supreme Court of New Zealand in the Greenpeace of New Zealand case which followed the Aid/Watch decision in holding that a political purpose can be a charitable purpose.

The feigned outrage over the possibility that charity auditors could "somehow fall under political influence" is a sideshow which is distracting the charitable sector from the real issues. If the charitable sector is truly governed by the rule of law, our focus should ignore the politics of audit selection and shift to the legal substance of all the gobbledygook in CRA's "Policy Statement on Political Activities." CRA is cherry-picking its jurisprudence on political activities and is ignoring these recent decisions from New Zealand, Australia and England.

We need to quit whinging about the politicization of the selection process. We must turn our energies to convincing the Canadian government and courts to recognize that engaging the public in a debate on what purposes and programs serve the needs of Canada today is essential. Charity law must both change and bring change. The real danger of CRA's current charity audits is that the policies promulgated condemn charitable activities and attitudes to the status quo of a "majoritarian assessment" rooted in 19th century England.