07/18/2014 07:56 EDT | Updated 09/16/2014 05:59 EDT

Should Charities Be Allowed to Participate in Politics?

Peter Dazeley via Getty Images

Last Friday, I wrote about an "advocacy chill" growing in Canada due to politicization of the Charities Directorate at Canada Revenue Agency and referred to last week's legal decision in England, of the Charity Tribunal, which held that "promoting the sound administration of the law" was a charitable purpose under the common law.

I made the point that most environmental and other charities currently under audit by CRA with respect to engaging in "political activities" are simply "promoting the sound administration of the law" by urging governments and their agencies to uphold and enforce existing laws related to protecting the environment, consulting with First Nations or preventing the inhumane treatment of animals.

The contrast between the political and regulatory environments in England and Canada, regarding the rights of charities to engage in advocacy, became even clearer this week when the Electoral Commission of the United Kingdom released its guidance on "Charities and Campaigning."

Like Canada, England has a general election coming up in 2015, but rather than discouraging advocacy, the regulator of charities in England states that charities are an important part of -- and make a significant contribution to -- the campaigning process, which is vital to a healthy democracy. Instead of arousing fear among charities, the regulator collaborates with the Electoral Commission to provide empowering guidance. The result does not ignore the law on political activities of charities. Instead, it clarifies it by stating "that under charity law, charities must not support or oppose a political party or a candidate but they can engage in campaigning and political activity aimed at securing, or opposing, any change in the law or policy of central government, local authorities or other public bodies in support of their charitable purposes. A charity may express support for specific policies that are also advocated by political parties if it will contribute to the delivery of its charitable purposes."

England creates a regulated period for the 2015 general election starting on September 19, 2014 and ending on polling day, May 7, 2015. Charities can register as non-party campaigners and during the regulated period spend £9,750 on focused constituency campaigning in each constituency on local or national issues.

Contrast this legitimization of the role charities have in the democratic process, and the clarification of its limitations, with the intimidation felt by charities in Canada. The contrast is stark when one focuses on funding. In the same federal budget that gave CRA's Charities Directorate new money to specifically audit charities for "political activities," Parliament revised the Income Tax Act's definition of "charitable purposes" to exclude "a gift the making of which is a political activity." Thus, the government simultaneously restricted charities' ability to raise funds for "political activities" and strengthened the Charities Directorate's mandate to audit those activities.

Canada's Income Tax Act specifically allows a registered charity to devote part of its resources to political activities that "are ancillary and incidental to its charitable activities," and "do not include the direct or indirect support of, or opposition to, any political party or candidate for public office." The "advocacy chill" in Canada is due to the politicization of the regulator rather than the law of charity.

It is somewhat ironic that I am writing in support of charities being able to carry on reasonable political advocacy. In the 1990s there was a massive effort in the voluntary sector to lobby the Canadian government to adopt a statutory definition of "charity" that would broaden a charity's legal ability to lobby. This culminated in 1999 with the Panel on Accountability and Governance in the Voluntary Sector publishing what is referred to as the Broadbent Report.

When the final report said, "Indeed, with the exception of a few lawyers firmly rooted in the common law tradition" in talking about support for its positions, it was certainly referring to Blake Bromley, and certainly did not intend as a compliment that I was "firmly rooted in the common law." In those pre-blog days, I expressed my contrary views by speaking at conferences and writing a paper that was published in both Canada and England.

I am still only a reluctant supporter of increasing the rights of charities to engage in political activities, and my participation in this debate is firmly rooted in my belief in the rule of law and in opposition to the politicization of the current Charities Directorate. However, I believe that charities should be free to participate in Canada's democratic process, as long as they are confined to the activities and limits allowed by charity law.


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