Charity Series Part 1: Canadaʼs Fake Non-debate on the Definition of “Charity”

Ellertonʼs definition of charity, takes 400 years worth of legal debate on the definition of charity, and wraps it up so tightly, makes it so simple, that one would wonder why it ever need be debated at all. If his were the working definition, charitable work would be limited to such tasks as feeding the hungry and planting trees.

Charities would have no say in making change to end hunger or protecting trees that are already standing. They would be mute players, picking up the pieces when government fails to protect the public interest. It is all too clear that the simple definition might be preferred by a government intent on ending conversations – or at least controlling them.

The 2003 Canada Revenue Agency (CRA) policy statement on charities and political activity, CPS-022, was born out of the complexity of the subject matter it deals with. The statement was formulated after years of research, panels and studies to increase both the effectiveness and the accountability of Canadaʼs voluntary sector. It clarified the definition of political activity, and expanded the types of political activities charitable organizations can undertake. The new rules proposed in the 2012 budget once again tightened the restrictions on political activities and gave the Minister of National Revenue new powers to suspend charitable privileges. The government justified these changes in part because of Ethical Oilʼs complaints about various environmental charities engaging in political activity.

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Whatʼs the problem with a charity taking political action? As Ellerton stated in his testimony to the House:

"The main reason why the courts rule out political purposes for charity is, is the result of the requirement that a purpose is only charitable if it generates a public benefit."

If a charitable purpose needs to generate public benefit, what is public benefit, and who decides? In 2012, the Canadaʼs Conservative government looked to its friends at Ethical Oil to decide. If the the Council of Canadians had lodged a complaint against the Fraser Institute on the same basis – would the government have moved to change the regulations on charities and political activities?

What was it about Ethical Oil that launched them into such a privilege position? Perhaps it was the organizationʼs ties to the Conservative Party of Canada – Ellerton, for one, was an aide to Minister Jason Kenney prior to taking the helm at Ethical Oil. Or maybe, the Government was in fact happy to hear from a group of concerned citizens.

The government knows, however, that most Canadians donʼt share Ethical Oilʼs un-critical faith in the oil industry. Recent polling shows that Canadians value environmental sustainability, and would like to see their leaders do more to address problems such as climate change. A poll conducted by Natural Resources Canada expressed Canadian values this way: Foremost, participants saw the Governmentʼs primary role as guarding against negative outcomes or undue environmental or public health impacts of energy sector activity. These relate to activities such as extracting, processing, using and transporting resources. Participants identified actions such as establishing and enforcing regulations and laws and providing oversight.

Public opinion, as Justice Robert Décary stated in the case, Everywomanʼs Healthcare vs. MNR (1988), is a “fragile and volatile concept.” If it were left to the public to decide on the meaning of charity, or whether an act was beneficial to the public, that judgement could well become “a battle between the pollsters.” In his decision, Judge Décary explains that the decision has been one that has been left to the courts, so as to prevent it from becoming a political football. In 2012, the courts were not called to weigh in, and the term public benefit was merely tossed around.

Canadian environmental charities exist for the purpose of promoting the publicʼs interest in a healthy environment. The act of holding the government accountable for environmental protection in the Alberta tar sands, the largest industrial project in human history, is a charitable act. This fact is outlined in CPS-022, and asserted in its preceding document, An Accord Between the Government of Canada and the Voluntary Sector. The Accord states, on page 17:

The independence of voluntary sector organizations includes their right within the law to challenge public policies, programs and legislation and to advocate for change.

In complaining, publicly, about these actions as conducted by Environmental Defense, The David Suzuki Foundation and Tides Canada, Ethical Oil turned the legitimate issue of government accountability into a false debate about the definition of charity. The purpose of these organizations was, and remains, well accepted as a public benefit, but Ethical Oil found a way to make that purpose vulnerable to political attack.

Canadaʼs current government sees its top priority as economic development, and has in the last four years has met more with representatives of the oil and gas industry than members of any other interest group. This government has chosen a strategy of censorship and obfuscation, as opposed to democratic engagement and dialogue.

When it comes to environmental charities, the government has attempted to poison the strong relationship they have with Canadians and create a legal climate which makes acts of environmental protection criminal. Labeling them “foreign radicals” was shocking and absurd, but including them as a potential threat in their Counter Terrorism Strategy? As charity and non-profit lawyer Terrance S. Carter writes in his article, Canadaʼs Counter Terrorism Strategy Targets Environmentalism, it is unclear why environmentalists were singled out or how they are logically connected to white supremacists or other recent examples of domestic terrorism:
"Likening environmentalists and animal rights groups to home-grown terrorists and mass murderers raises the question of whether the government is blurring the lines of counter-terrorism in order to target otherwise legitimate opponents and justify questionable surveillance campaigns."