Charities, Animals, and Social Change: Charting a More Charitable Approach to Animal Advocacy

• Author: Maneesha Deckha & Sarah Runyon
• Pages: 239-275

239

 

Charities, Animals, and Social Change:

Charting a More Charitable Approach to

Animal Advocacy

Maneesha Deckha & Sarah Runyon*

A. INTRODUCTION

In most western jurisdictions “charity law is rooted in the common law

and anchored on the Statute of Charitable Uses .” In Canada, judicial and

legislative reluctance to depart from this seventeenth-century framework

has prompted critics to suggest that the law in this area is antiquated, in-

f‌lexible, incoherent, and unresponsive to our current social context. One

* This article was supported by a grant from the Social Sciences and Humanities

Research Council. The authors are grateful to Catherine George for her excep-

tional research assistance.

 Kerry O’Halloran et al, “Charity Law Reforms: Overview of Progress Since ”

in Myles McGregor-Lowndes & Kerry O’Halloran, eds, Modernising Charity Law:

Recent Developments and Future Directions (Northampton, MA: Edward Elgar,

) at  [O’Halloran et al, eds, “Reforms”].

 Arthur Drache, a well-known Canadian charities expert, has gone so far as to say

that this reluctance to modernize means that “Canada remains in the Dark Ages

with no possibility of change in the foreseeable future” (Arthur Drache, “Sports

Ruling Keeps Canada in Dark Ages on Charity Law; Amateur Sport Is Desirable,

but Not Charitable” The National Post ( October ) FP). See also Andre

Picard, “Charities Blast Ottawa over Rules on Advocacy” The Globe and Mail (

October ) A, in which the Canadian laws applicable to charities are de-

scribed as “vague, outdated, poorly reasoned and inconsistently enforced”; Kerry

O’Halloran, Charity Law and Social Inclusion: An International Study (New York:

Routledge, ) – [O’Halloran, Inclusion]; and Richard Bridge, “The Law

240     

area where the disconnect manifests is in how “charity” is def‌ined, a topic

of vital signif‌icance to organizations seeking to acquire or maintain char-

itable status, as donors (presumably enticed by the prospect of receiving

tax credits for their donations) can receive tax credits only for donations

to organizations recognized as “charitable” by the Charities Directorate of

the Canada Revenue Agency according to its def‌inition.

This chapter addresses the impact of the centuries-old def‌inition of

charity in relation to present-day animal welfare organizations. Currently,

Canadian law holds that it is charitable to prevent cruelty to animals, but

not to rescue animals subject to vivisection or factory farming practices.

It is charitable to promote feelings of humanity and morality by relieving

the suering of animals, but not to focus on strengthening laws protecting

their welfare. Furthermore, the promotion of animal welfare will gener-

ally be recognized as charitable, but only where the charitable activities

benef‌it humans. These inconsistencies are the result of the law’s reliance

on outdated and anthropocentric principles; without modern reform, the

charitable realm will continue to be a hostile and confusing place for those

working on behalf of animals. With the  release of the Canada Revenue

Agency’s (CRA) Charities Directorate’s guidelines for the charitable regis-

tration of animal welfare organizations, a number of the problems facing

of Advocacy by Charitable Organizations: The Case for Change” in Charities and

Not-for-Prot Organizations: Materials Prepared for the Continuing Legal Education

Seminar, Advising Not-for-Prot Organizations and Charities (Vancouver: Continu-

ing Legal Education Society of British Columbia, ) ss ..–...

 See Kernaghan Webb, Cinderella’s Slippers? The Role of Charitable Tax Status in

Financing Canadian Interest Groups (Vancouver: SFU-UBC Centre for the Study of

Government and Business, ).

 Canada Revenue Agency, Promotion of Animal Welfare and Charitable Registration

(Ottawa: CRA, ), ss  and .., online: Canadian Revenue Agency www.cra-arc.

gc.ca [CRA Guidelines].

 National Anti-Vivisection Society v Inland Revenue Commissioners, [] AC 

[NAV S], followed in Re Wedge Estate, [] BCJ No  (CA).

 Re Wedgwood; Allen v Wedgwood, []  Ch  [Wedgwood], followed in British

Columbia Society for the Prevention of Cruelty to Animals v Barr, [] BCJ No 

(CA); and Re Smith, []  DLR  (BCCA).

 CRA Guidelines, above note , s  question .

 Ibid at – and –. Similar “ironic conclusions” have been acknowledged by

Adam Parachin in relation to charitable activity concerning abortion, war, and

torture: Adam Parachin, “Distinguishing Charity and Politics: The Judicial Think-

ing behind the Doctrine of Political Purpose” () : Alta L Rev  at –.

 See CRA Guidelines, above note .

Chapter : Charities, Animals, and Social Change 241

animal charities — and potential routes for reform — have become clearer.

This article explores these issues, both in the context of judicial decision

making and the CRA’s administrative application of the law, in order to ex-

pose the anthropocentric, archaic thinking that animates these problems,

and to suggest a route forward for animals and charity.

It is critical to note the underlying current that undermines the ability

of charities law to develop into a responsive legal arena for animals. As

with all other areas of Canadian law, it is premised upon an animal welfare

approach that “does not ground rights” but rather, in accordance with an

anthropocentric logic, holds that “animals may be sacrif‌iced to advance

total welfare.” This welfarist approach is in contrast to the animal rights

view, which “embodies a strong claim of equality, namely, that animals

with equivalent morally relevant capacities have equal rights, regard-

less of species membership.” In contrast to animal rights organizations,

whose mandates typically involve working to end the human use and ex-

ploitation of animals, animal welfare organizations work toward better

treatment for animals in the course of their use by humans. A thorough

exposition of the distinctions between animal welfare and animal rights is

beyond the scope of this analysis. It is necessary, however, to highlight

the fact that, without a pronounced legislative shi toward the animal

rights approach, the well-founded criticisms launched against this area of

the law are unlikely to be addressed in full. Nevertheless, there is scope

for some meaningful reform vis-à-vis the charitable treatment of animal

protection organizations, even under the current welfarist paradigm, and

it is toward the actualization of this reform that this chapter is directed.

Section B of this analysis oers a brief overview of the development

of charities law in Canada and explores the negative impact of this legal

 Elizabeth Anderson, “Animal Rights and the Values of Nonhuman Life” in Cass

Sunstein & Martha C Nussbaum, eds, Animal Rights: Current Debates and New

Directions (Oxford: Oxford University Press, )  at .

 Ibid.

 Elizabeth L DeCoux, “Speaking for the Modern Prometheus: The Signif‌icance of

Animal Suering to the Abolition Movement” ()  Animal L  at –.

 For a detailed analysis of the animal rights versus animal welfare debate see Gary

Francione, Rain without Thunder: The Ideology of the Animal Rights Movement

(Philadelphia: Temple University Press, ) [Francione, Rain]; and Gary Fran-

cione & Robert Garner, The Animal Rights Debate: Abolition Or Regulation? (New

York: Columbia University Press, ).