Alberta Election Legislation and Charities.

• Author: Broder, Peter
• Position: Columns: Not-for-Profit Law

After years of turmoil around the topic, the federal government moved recently to reform treatment of charities' "public policy dialogue and development activities". The reform was, at least in part, in response to the striking down as unconstitutional of certain provisions of the Income Tax Act dealing with registered charities' political activities.

In a 2018 case, the Ontario Superior Court found that the measures violated the Canadian Charter of Rights and Freedoms.

One of the outcomes of the reform was clarity on the long troublesome area of the overlap between policy positions of registered charities and those held by political parties.

It is undisputed that charities should not engage in partisanship. However, many charities develop stances on policy matters that are later adopted or adapted by political parties. These positions can originate in a host of ways--among them, in an organization's frontline experience, out of research it does, or, in the case of faith-based groups, from tenets of belief.

Historically, developing policy positions related to their missions that are the same or similar to those taken by political parties or candidates has placed charities at risk of running afoul of the prohibition on partisanship in the Income Tax Act. Neither the old legislation nor the old guidance on political activities provided charities with much information on assessing circumstances where positions overlapped or were shared. That is no longer the case.

The explanatory guidance on the new legislation released by the Canada Revenue Agency Charities Directorate (CRA), CG-027 Public policy dialogue and development activities by charities, makes clear that policy originating separately from political parties and candidates does not put charities offside the rules against being partisan. Whether positions overlap or are later endorsed by parties or candidates is not a determining factor.

The guidance states:

The actions a political party or candidate may independently take do not transform the activities of a charity into direct or indirect support of or opposition to that party or candidate. What the CRA considers is the activities of the charity itself. Now that this problem has been resolved federally, however, it has arisen again in Alberta provincial law. The province's Election Finances and Contributions Disclosure Act (EFCDA) regulates spending and other support for political parties or candidates both during and outside election...