In a previous
I outlined the strengthened restrictions on political advocacy by
charities adopted in the 2012 Federal Budget. The new measures have fuelled
speculation that the Federal Government was making known its objection to
charities, notably environmental charities, publicly criticizing government
Whatever may have been the
immediate motivation for the new measures, the renewed emphasis on regulating
political advocacy raises for consideration the reasons why the law
distinguishes charity and politics in the first place.
Over the years courts have
offered a number of reasons why political advocacy is not charitable at law. A
review of the cases reveals why the restrictions on political engagement by
charities have proven so controversial. Put
simply, the reasons articulated by courts in support of the doctrine of
political purposes are surprisingly deficient.
Rationale #1 - time honoured
Many of the leading cases
dealing with the doctrine of political purposes suggest a judicial willingness
to apply the doctrine if for no other reason than because courts appear to have
consistently done so in the past. This is not especially surprising in a regime
of law that relies upon stare decisis
- let precedent stand - as one of
its guiding principles.
The problem, of course, is that
mechanical adherence to precedent can give life to errant authorities. This is
exactly what appears to have happened with the doctrine of political purposes.
All leading decisions dealing
with doctrine of political purposes can be traced back to the 1917 decision in Bowman
v. Secular Society
. In that case, one of the judges, Lord Parker,
summarized the precedents with the observation that political purposes have
"always" been considered non-charitable.
As it turns out, Lord Parker
was incorrect as no decision prior to Bowman
had clearly established
this principle. His observation has been variously described by commentators as
"inaccurate", "not one which is established with any certainty by high
authority in England", "difficult to reconcile with certain decided cases",
based upon a "paucity of judicial authority", "clearly wrong", "considerably
overstated", and "not supported by an examination of reported cases".
The application of the doctrine
of political practice as a time honoured practice thus only takes us so far,
since it would appear that the doctrine ultimately derives from an errant
description of the law provided by Lord Parker in Bowman
Rationale #2 - the law is
perfect as it is
In order for a purpose to be
categorized as charitable, a court must conclude that attaining that purpose
will be of "public benefit." Where the purpose involves seeking a change to the
law, courts have understood this requirement to mean that categorizing the
purpose as charitable requires a finding that it would be of public benefit for
the law to change.
The supposed difficulty this
creates is that it requires courts to recognize the imperfection of the law. Several courts have concluded that the law
would "stultify" itself (cause itself to appear illogical) if it were to accept
the mere possibility that it - the law - is imperfect. It is necessary,
according to this reasoning, for courts to proceed from the assumption that the
law is perfect as it stands, which obviously precludes a finding that it is of
public benefit for the law to change.
With respect, this rationale is
particularly weak. Judges often suggest
amendments to the law, including, ironically, amendments to charity law.
Moreover, the law itself takes account of its fallibility in multiple ways, e.g.,
dissents, overrulings, rules of statutory interpretation designed to deal with
mistakes in law, etc. The very presence
of reasons for judgement has been observed as inviting the possibility that
those reasons may be "right or wrong, sound or unsound, adequate or inadequate."
It is simply descriptively inaccurate to assert that the law assumes its own
perfection and theoretically unsound to assert that it must do so.
Rationale #3 - it is
inappropriate for courts to "weigh in" on public debates
As indicated above, a purpose can
qualify as charitable only if it is first determined that the purpose is of
public benefit. Courts have reasoned that
they lack the institutional capacity to find public benefit in political
The essential concern is that
it is inappropriate for courts to weigh in on public debates by finding public
benefit in law reform efforts or in the promotion of specific points of view on
controversial issues. This alleged
incapacity precludes courts, so the reasoning goes, from concluding one way or
the other as to whether political purposes are of public benefit. The denial of
charitable status to political purposes is merely the practical consequence of
judges remaining silent on whether the public benefit test is met.
This rationale is also wanting.
First, it is illusory to
conclude that a court can necessarily remain neutral on the issue of public
benefit simply by declining to make an explicit finding on the matter. In many
instances, remaining silent on the issue of public benefit will be tantamount
to expressing a value judgement of sorts.
One could very well say that remaining silent as to the public benefit
of some proposed changes to the law - e.g., the abolition of human torture
(considered political by the House of Lords in McGovern v. Attorney General
- is itself an implicit denial of
the inviolability of the core values upon which a civilized system of law is
Second, this rationale arguably
reflects a misunderstanding of the public benefit requirement. It is not
necessarily true that a court ruling on the public benefit of a political
purpose must necessarily rule on the public benefit of the particular
law reform being sought or the particular
point of view being advocated.
Courts could, for example, reason that there is public benefit in the public
debate of controversial issues without necessarily finding benefit in any
particular view being promoted.
There is precedent for such an
approach to public benefit analysis. In the context of religious charities courts
almost never comment on the benefit (or lack thereof) of individual religious
doctrines. Having established that there is public benefit in religion, they
focus their efforts on confirming whether what is before them constitutes
religion without directly evaluating the benefit of all doctrines comprising a
A similar approach could and
arguably should be applied to political purposes, as was recently done by the
Australian High Court in Aid/Watch Inc.
v. Commissioner of Taxation
. However, in News to You Canada v. Minister of National Revenue
Court of Appeal expressly concluded that Aid/Watch
should not be followed by Canadian courts.
Rationale #4 - charity and
politics are "just different"
The cases appear on some level
to be driven by the intuition that charity and politics are "just different."
There is, of course, some truth to this claim. The problem is that the cases
have often struggled to draw the distinction consistently and rationally.
A representative example is the
claim made in the cases that it is charitable to educate from
a point of
view but political to promote
a point of view. Whatever theoretical
foundation this distinction may (or may not) have, it is an unworkable
distinction in practice, as are so many of the other bases on which the law has
sought to differentiate charity from politics.
One gets the impression reading
the cases dealing with political purposes that judges viscerally reject the
charitableness of political advocacy but struggle to cogently account for their
intuition in this regard. The reasons for judgment are frequently unconvincing
and/or inconsistent with cases in which charitable status has been granted. The
result is an overly broad categorization of political purposes and a disjointed
model of what is charitable at law.
There is much to be said in
support of liberalizing the rules restricting political advocacy by
charities. However, the new measures
adopted as part of the 2012 Federal Budget reveal that Canadian law is moving
in just the opposite direction.
So for the time being Canadian
charities will continue to find themselves in the conflicted position of being
well-positioned to play a constructive role in the process of law and policy
reform but to a great extent precluded from realizing this potential. Rather than build on an unstable platform, as
the 2012 Federal Budget has done, it might make better sense for law reformers
to instead fundamentally reconsider the doctrine of political purposes.
For further information:
Prof. Adam Parachin, Professor of Law, University of Western Ontario,
519/661-2111, ext 81445, or by email. firstname.lastname@example.org.