What's next? Advocacy, things political, and charities.

• Author: Hunter, Laird

Perhaps the most bedeviling of the too many details of charities law are those dealing with advocacy and what is considered political. The recent Supreme Court of Canada decision in Vancouver Society of Immigrant and Visible Minority Women v. M.N. R, 1999 is as interesting for what the case doesn't say about these details as what it does. The only charities law case to reach the Court for nearly 30 years doesn't directly comment on what is advocacy or what is political. But in light of the Federal Court of Appeal's recent judgment in Human Life International in Canada Inc. v. M.N.R, 1967 that does confirm that charities cannot persuade the public about social issues because that is political, Canadian law on this topic is now authoritative, explicit (though not exactly clear) and likely, at some odds with what many people might think the law would be.

The Current Law

What is legally charitable is both described and limited by a list that was first laid down in an English court case more than 100 years ago -- Commissioners for Special Purposes of Income Tax v. Pemsel, 1891, As noted in Peter Bowal's article (page 9), the British House of Lords said there were four categories of charity: relief of poverty, advancement of religion, advancement of education and other purposes beneficial to the community, not falling into one of the other three categories.

An additional requirement is that even if the charity intends to carry out its program within one of the four divisions, it cannot do so in a way that is considered political. As well, any particular activities which are themselves political must be necessary and ancillary to general charitable purposes (See Bowal). In particular, any of those political activities cannot be partisan. In arriving at this statement of the law, the courts have struggled with just what it means to be political in the charitable context.

The question of what is political always seems to get tangled up in an analysis of whether what is really being done is for community benefit. The courts repeatedly say that it is both impossible and improper for them to determine whether any particular theory or ideology has public benefit. So, over the years the courts have determined a number of specific things are improperly political in relation to charitable endeavour:

* to further the interests of a particular political party;

* to procure changes in the laws of this country;

* to procure changes in the laws of a foreign...