Canadian Journal of Comparative and Contemporary Law

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Donor Advised Funds: What Can North America Learn From the Australian Approach?
Charity law is a public and private hybrid that seeks to balance donor intent with the achievement of public benefit. In supporting that balance, regulatory frameworks typically intrude less on donor intent when the recipient charity is a publicly controlled charity, rather than a private foundation. This approach is challenged by the rise of donor advised funds - public charity intermediaries that behave in many ways like privately controlled foundations. The rise has been particularly marked in the United States, but is also apparent in Canada and Australia. Pertinently, while Australia took many years to regulate private foundations, it shortly afterwards also introduced specific rules for public charitable foundations. This article therefore examines whether the United States and Canada can draw guidance from Australia's experience in dealing with donor advised funds, especially in relation to delay in distributions and conflicts of interest
Modernizing the 'Definition' of Charity: Charting the Tax Terrain of Statutory Reform
Amid considerable chatter about the renovation of charities governance, there is a lot of clamor for a twenty-first century vision of benevolence. The contemporary state of affairs finds governance thoroughly tethered to a conception of 'charity', or 'charitable entity' planted 400 years ago. That conception, developed within and shaped by the common law, is perceived to reflect an antiquated idea about benevolence that has little relevance to the contemporary social order. While a statutory articulation of the definition of 'charity' could ensure that modern governance matched and served the needs of modern society, any renovation project happens within a tax context. In law, the meaning of 'charity' matters precisely because of its tax pertinence. The relationship between tax and charities means that the crafting of any new vision needs to develop within, and be framed by, an appreciation of the potential fiscal implications. This paper charts the tax-centric dimension of charities governance. With a specific focus on the definitional piece, it proffers an analysis of the fiscal considerations relevant to modernizing the definition of 'charity'
Advocacy by Charities: What is the Question?
"There are no right answers to wrong questions." - Ursula K Le Guin Despite the decision of the Supreme Court of New Zealand in Re Greenpeace of New Zealand Incorporated, the issue of advocacy by charities remains unsettled in New Zealand, with at least three cases awaiting determination by the New Zealand courts at the time of writing. This article seeks to examine the questions that decision-makers should be asking themselves when considering the issue of advocacy by charities. First, the article considers the legal position prior to the Charities Act 2005, and concludes that New Zealand charities were able to undertake unlimited non-partisan advocacy in furtherance of their stated charitable purposes. The article then considers whether that position was changed by the Charities Act, or by the Supreme Court decision, and concludes that it was not. The article then argues that current government interpretations of the Supreme Court decision that require charities to demonstrate public benefit in all of their activities are resulting in a framework in New Zealand that is complex, highly subjective and unworkable in practice. Provided the advocacy is not partisan and complies with other general legal restrictions on speech, charities should be free to advocate for their charitable purposes as they see fit, without undue government interference
Indigenous Peoples, Legal Bodies, and Personhood: Navigating the 'Public Body' Exemption with Private Law Hybrid Entities
Over the past 40 years, the Canada Revenue Agency's application of the 'public body exemption' in paragraph 149(1)(c) to First Nation governments has evolved to include all 'Indian bands' and what are called 'Modern Treaty Nations'. Paragraph 149(1)(c) -the so-called 'public body exemption' -exempts public bodies performing a function of government from taxation on income received regardless of the geographic origin of the income-generating activity. To this day, this exemption is referred to as the 'Municipal Exemption' in the Income Tax Act, RSC 1985, c 1 (5th Supp). The story of the emerging application of the exemption to 'Indian bands' and First Nations, however, is not to be gleaned from a study of the jurisprudence, nor of a legislative history of successive amendments to the Income Tax Act. Instead, the story of this evolution lies in the interactions of the various First Nations across Canada with the Canada Revenue Agency by way of applications for Advance Tax Rulings, or through audits and reassessments. This article explores some of the legal categories at play in this evolution, along with some of the corporate law issues that were also arising for First Nations as they pursued economic self-determination from the early 1980s to the present
When is the Advancement of Religion Not a Charitable Purpose?
This article addresses the question of why religious groups receive charitable status in relation to religious activities by considering when the current law does not grant charitable status to purposes that advance religion. The jurisdictional focus is upon Australian law, with some reference to other jurisdictions whose law also derives from the English common law of charity. After an overview of the charity law landscape in Australia, this article explains and critically evaluates the grounds upon which charitable status may be refused to purposes that advance religion. This article then considers two issues that have emerged in twenty first century charity law and that are relevant to the charitable status of religious groups. These concern human rights, particularly the right to freedom of religion, and the use of charity law to regulate religious activity
Why and When Discrimination is Discordant with Charitable Status: The Problem with 'Public Policy', The Possibility of a Better Solution
When courts have considered when and why discrimination renders an institution ineligible for charitable status, they have resorted to the doctrine of public policy to explain the non-charitableness of discrimination. Public policy is not, though, up to the task. It is undisciplined, inspires courts to consider irrelevant factors and offers no principled explanation as to when and why discrimination should and should not vitiate charitable status. A better approach would be to address this issue using the traditional analytical tools of charity law charitable purposes, charitable activities and public benefit. But this is a deceptively difficult task, which perhaps accounts for the appeal of public policy to courts. Nonetheless, this paper looks inward to the law of charity, developing an "in-house" rule against discrimination grounded in the internal logic and values of charity law. Specifically, this paper discovers in the public benefit requirement an inclusive ethic through which charity law affirms the equal worth, value and dignity of others. Discrimination is non-charitable when it fails this standard through stigmatizing rejection. But not all differential treatment under charitable trusts contradicts the inclusive ethic of charity law
Charitable Un-educational Objects
Judges appear to have stipulated a 'merits' test when it comes to public benefit underscoring education as a charitable object. The same is not evident in, say, objects directed to relieving poverty or advancing religion. At the same time, courts have progressively broadened the concept of 'education' for the purposes of charity law. This may present a tension between what is 'educational' and what is 'beneficial' in the charity sphere. Lacking more than a perfunctory coverage of this issue in the literature, it is appropriate to probe the rationales and parameters of the 'merits' test, with a view to developing an understanding of how education intersects with charity law. This is pursued by reference to three primary scenarios where contention has focused: (1) where the object is allegedly irrational or nonsensical; (2) where a donor has sought to establish a perpetual display of his or her possessions; and (3) bequests of funds for publication of (usually the donor's) work
Judgment-Proofing Voluntary Sector Organisations from Liability in Tort
Voluntary sector organisations (VSOs) may use ordinary principles of law to protect themselves from tort liabilities by rendering themselves judgment-proof. There are two viable judgment-proofing systems available to VSOs: (1) charitable purpose trusts, and (2) group structures. Whilst these systems are not fool-proof, they offer significant protection from tort liabilities. However, judgment-proofing may come at a high price to the voluntary sector
Constitutionalizing the Registered Charity Regime: Reflections on Canada Without Poverty
In Canada Without Poverty v Canada (AG), the Ontario Superior Court of Justice struck down provisions of the federal Income Tax Act that limited the political activities of charitable organizations, on the ground that the provisions violated the freedom of expression of the registered charity before the court. This paper addresses the decision's complex legacy, reflecting on the promise and the perils of charity law's increasing encounters with public law. I address some of the difficult questions raised by the decision: (1) What types of associations are rights-holders under the Canadian Charter of Rights and Freedoms? (2) What are the constitutional limitations on the government's ability to set the outer bounds of the registered charity regime? (3) What is the rationale for limiting the political advocacy of charities? While Canada Without Poverty has generated significant improvements to the registered charity regime, I argue, the Ontario Superior Court of Justice missed an important opportunity to draw constitutional law and charity law into closer conversation
Tax Incentives for Cross-border Giving in an Era of Philanthropic Globalization: A Comparative Perspective
The 21st century has ushered in an era of philanthropic globalization marked by a significant rise in international charitable giving. At the same time, cross-border philanthropy has raised legitimate fiscal and regulatory concerns for government. To understand how donor countries have responded to this changed global philanthropic landscape, we use comparative tax methodology to develop a spectrum of approaches to the tax treatment of cross-border giving and apply tax policy criteria to critically evaluate the divergent approaches of Australia and the Netherlands, located at opposing ends of the spectrum. Findings from the comparative analysis reveal that in the current global environment for philanthropy there is a strong case to be made for allowing tax deductible donations to cross borders