In a previous article 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 policy.

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 practice

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 purposes. 

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 based. 

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 particular religion.

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 the Federal 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.

Conclusion

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. aparachi@uwo.ca.