Looking back in wonder: a long year in review (public policy consideration about charities and non-profits).

• Author: Hunter, Laird

It truly was a notable year for the law and policy of charities and non-profits. Many of the reasons have already been reported in this column. But now is the traditional time to review and speculate. There is plenty of both to do. Going back slightly beyond the 12-month mark, this past period has seen more significant Canadian cases and public policy consideration about charities and non-profits (and a focus on whatever it is that is the Voluntary Sector) than for many years before.

We begin, oddly enough, with what apparently was the last publication of the Ontario Law Reform Commission (OLRC). Its Report on The Law of Charities was released in the late spring of 1997. Nineteen chapters, eight appendices, and hundreds of pages detail the findings of a report that was commissioned in June 1989 to "study the law governing charitable organizations and to make recommendations respecting the appropriate laws to govern charities in modern times". It has a wealth of detailed information. But for a time in which there is so much talk about charities and non-profits alike, the understated language the Report (characteristic of this kind of document) makes this tellingly broad observation:

"[d]espite this position of theoretical pre-eminence, however, the charity sector in Canada has attracted comparatively little academic, political, or legislative interest. As a consequence, there is a noticeable lack of informed public debate on the role of the sector in Canadian society.

The question of what charities can and should be permitted to comment about - what is often referred to as advocacy - is an extremely important one for them. About the same time as the OLRC released its report, the Federal Court of Appeal issued its decision in Human Life International in Canada Inc. v. M.N.R. In that case, Mr. Justice Strayer, for the Court, observed "I believe that the jurisprudence generally supports the proposition that activities primarily designed to sway public opinion on social issues are not charitable activities." In May 1999, Mr. Justice Stone, for another unanimous panel of the Federal Court of Appeal, observed in Alliance for Life v. Minister of National Revenue that "[i]t seems to me that political activities may well be `ancillary and incidental' despite the fact they involve the advocacy of a particular point of view on controversial social issues ..." The key consideration initially must be whether the activities actually engaged in, though...