Americans are reeling from a recent leak of the Supreme Court draft opinion that is poised to overturn Roe v. Wade and leave abortion in the hands of state politicians, causing many Americans to decry what they believe to be significant government overreach, removal of privacy rights, judges who under oath stated a position that is now contrary to that position, and further marginalization of already marginalized communities. It may also have many other decidedly negative impacts on other aspects of US law and society.
Here in Canada, the topic of charities and abortion has been raised but the conversation is looking quite different north of the border. In Canada, the discussion has focused on practical issues with access to abortion rather than the legality of abortion. In terms of charities, abortion came up prior to the 2021 Federal election, when the Liberal Party released its platform, which included a proposal to amend the Income Tax Act (ITA) to prevent certain anti-abortion organizations from having charitable status.
We previously wrote about this topic in our article Liberal party platform includes commitment to stop providing anti-abortion groups with charity status.
On page 4 of the Liberal Platform it says:
A re-elected Liberal government will:
… No longer provide charity status to anti-abortion organizations (for example, Crisis Pregnancy Centres) that provide dishonest counseling to women about their rights and about the options available to them at all stages of the pregnancy.
We noted in our September 10, 2021 article:
It is not clear what this means:
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What is an anti-abortion group? Is it a place of worship that opposes abortion? Is it a group that focuses most of its resources on pregnancy-related issues?
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Will this just be for new applications or is this going to affect existing groups that have registered charity status?
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What will be considered to be “dishonest counseling”? What evidence will CRA need to make that determination?
We noted in our September 10, 2022 blog, which was just before the Federal election:
The Liberals and Conservatives have always played a culture war game at the expense of the charity sector. Whether it’s political activities of environmental charities, abortion, etc.
The cost of this culture war has been a huge decline in public trust in charities. One of the biggest issues facing Canada today is vaccinations and trying to minimize the impact of COVID-19. When people listen to misinformation on Facebook over proper healthcare advice from registered charities we see the impact of a diminished charity sector, partly hurt by the potshots of the political parties. Why should this election be different? Well, the Liberals have continued the culture war and thrown a hand grenade in their policy platform by making an ambiguous proposal relating to anti-abortion groups and their charitable status.
Significantly, we still have not received clarity on what an “anti-abortion group” is. Many religious organizations are openly against abortion, but a church having a position against abortion is very different than an organization focussed on disseminating information that is patently false to women during a vulnerable time in their lives. These are of course two extreme ends of the spectrum, but where is the line between the two? Should there be a means test to determine what percentage of expenditures goes towards anti-abortion initiatives? Should it be a question of how many people are impacted by the charity’s activity? Will charities be penalized if an officer re-tweets an anti-abortion message on the charity’s Twitter? None of these questions have thus far been addressed by the Liberals.
Imagine Canada’s statement
On April 4, 2022, Imagine Canada released its position on the federal proposal to prevent charitable status to certain anti-abortion organizations:
In the months leading up to the 2021 federal election, the Liberal Party of Canada committed in their platform to preventing “charity status to anti-abortion organizations (for example, Crisis Pregnancy Centres) that provide dishonest counseling to women about their rights and about the options available to them at all stages of the pregnancy.” The Deputy Prime Minister has recently specified that the government plans to introduce amendments to the Income Tax Act in order to realize this commitment.
Imagine Canada is opposed to this manner of proposed legislative change, on the basis that it is both unnecessary and misguided. Honest conduct by charities is critical to maintaining Canadians’ trust in and support for the charitable sector, and federal regulation is already able to require a registered charity to be honest in how it provides services to the public. For example, Charities Directorate provides guidance on the promotion of health and charitable registration, stating that when charities provide health information, the content must be “reasonably unbiased, factual and sufficiently detailed.” Similarly, the guidance on public policy development and dialogue activities requires that information shared with the public on policy matters “must be truthful, accurate, and not misleading”. We support the use of existing measures to intervene in cases where charities are suspected of dishonest conduct; additional legislative measures are not required to intervene in cases of dishonesty related to pregnancy and abortion specifically.
Should an amendment to the ITA be sought that sets a standard for truth-telling by charities, we are concerned our sector may become vulnerable to interventions driven by the political whims of future governments. The often aspirational, ethical and moral nature of charity work has led to substantial progress in our society (for example: same-sex marriage, climate change, anti-tobacco regulation and road safety), and the proposed change could become a precedent that is used by other governments against organizations advancing new or different ideas. This could pose a significant problem for future public benefit advancements.
It is curious that Imagine Canada released its statement a few days before the budget. Why so late? Can a statement a few days before the budget actually affect the budget? Shouldn’t Imagine Canada have put out a statement raising concerns about the approach shortly after the Liberals put the proposal in their platform?
Imagine Canada is concerned about the “political whims of future governments”. We share this concern that a specific niche intervention for political purposes can be negative for the charity sector. However, it is important to note that this is not the first time such intervention would have occurred. In 2005, the ITA was amended to include section 6.21, which provides that:
a registered charity with stated purposes that include the advancement of religion shall not have its registration revoked or be subject to any other penalty under Part V solely because it or any of its members, officials, supporters or adherents exercises, in relation to marriage between persons of the same sex, the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms.
This amendment prevents a charity from having its registration revoked for being against same-sex marriage. That seems like a very niche change to the ITA. The current Liberal’s proposal intends to do the opposite – revoke status because a charity is deemed to be an “anti-abortion organization.” It is unclear if Imagine Canada had opposed including section 6.21. Clearly if the Liberals brought in a change to the ITA this would not be a “precedent”. Unfortunately, the precedent has already been set. They reference “substantial progress in our society” and give examples including “same-sex marriage” but don’t discuss how section 6.21 or the ITA undermines acceptance of same-sex marriage by protecting charities that advocate and spend enormous resources opposing and vilifying same-sex marriage.
Imagine Canada notes that “We support the use of existing measures to intervene in cases where charities are suspected of dishonest conduct; additional legislative measures are not required to intervene in cases of dishonesty related to pregnancy and abortion specifically.” Imagine Canada presumably knows that currently CRA is auditing very few charities and revoking only a handful of charities as a result of audits each year. The view that existing measures are sufficient to intervene when perhaps thousands of charities are carrying out dishonest conduct is unrealistic. We absolutely agree that centres disseminating false and misleading information, and those that are engaging in other deceptive conduct should not enjoy the benefit of registered charity status. These organizations should not be entitled to issue official donation receipts to donors. However, just because there are guidances that prohibit this behavior does not mean it is a non-issue.
Practically speaking, the Charities Directorate does not have or is not allocating the resources to find and revoke status from every organization engaging in this sort of ‘deceptive’ behavior, not to mention other egregious behaviour. Moreover, it often takes years, and significant taxpayer dollars to investigate, audit, and subsequently revoke a charity’s status as a result of audit. CRA needs tools to both reject inappropriate groups from obtaining charitable status and also to more easily remove registered charity status if a group is flagrantly violating charity law or ITA requirements. Is Imagine Canada suggesting more audits be conducted of charities? Probably not. Is Imagine Canada suggesting that more resources should be allocated towards audits of charities that are dishonest? Probably not. It is no wonder that public confidence in charities in Canada has steeply declined over the last two decades.
If Imagine Canada and others are not in favour of niche amendments to the ITA then what is to be done? There have been many concerns raised about the conduct of religious groups and the harm that some of them cause, as we saw with residential schools and the Catholic Church’s recent conduct and failure to take accountability.
One option is to look at the definition of charity, to come up with a “modern” definition of charity, and exclude religious groups that are focused primarily on religion, but not other religious groups that are focussed on having charitable purposes such as international development or poverty. Another option is to keep the current common law definition of charity but only allow certain more limited categories of organizations to issue official donation receipts or receive gifts from other charities. Groups that focus primarily on religion, opposing abortion or opposing same-sex marriage, would not get the same benefits that other charities such as universities, hospitals and anti-poverty organizations do. This is essentially the system in Australia.
All of this is not to say that there is no merit in the Liberals’ proposal. Supporters of the proposal argue these types of centres claim to help pregnant women understand their options in an unbiased manner, only to use false and misleading information to counsel them against getting an abortion. Pro-choice advocates argue that these centres do not deserve registered charity status and the ability to issue official donation receipts to their supporters given the amount of harm they do.
In summary, it is not clear whether the implications of the Liberals’ proposal to amend the ITA has been thoroughly considered, nor is it clear at this point what effect such a change would have on some registered charities.