Pushing for private health care 'charitable' not 'political'

Is fighting for the right to buy private health care a charitable act? Apparently it is.

But fighting for the right to die on your own terms is not. It's political, at least according to the logic of the Canada Revenue Agency.

So, when is a charity being political? It's an increasingly perplexing question.

Right now two registered charities are headed to court to try to strike down laws that block access to private health care. They are paying for their court action through donations that qualify for charitable tax credits.

Canada Revenue Agency does not regard it as political to go to court to secure the rights and freedoms of people, says John Carpay, president of the Justice Centre for Constitutional Freedom. (CBC)

Yet when Dying with Dignity went to court to fight for the right to assisted dying, the group lost its charitable status and the right to issue tax credits.

"I would say that the rules seem to be ambiguous," says Wanda Morris, the CEO of Dying With Dignity. "I looked around at what other charities are doing and I wonder how it is that many of them are charitable and now we're not."

A shadow fell over charities back in the 2012 budget, when the Conservative government gave the Canada Revenue Agency $8 million (later adding another $5.5. million) so that the CRA could seek out charities that are crossing the political line.

The CRA says it will do 60 audits, and there are 86,000 charities in Canada. So that's a one-in-1,400 chance of being audited by random selection. Only it's not random. The CRA admits it's looking for red flags, including "bias."

"Audit selection occurs after a substantial screening process," the CRA said in an email. "This may include considering issues such as 'point of view,' 'bias,' or 'one-sidedness.'"

In Dying With Dignity's case, its offending activities apparently included attempts to change public opinion.

"It is not legally charitable to engage in pressure tactics on governments such as swaying public opinion, promoting an attitude of mind, creating a climate of opinion," the CRA's auditor wrote to Dying With Dignity.

What about think tanks?

Still, there is a whole class of charities, known as think tanks whose major purpose is creating a climate of opinion or promoting an attitude of mind, activities that fall under the general category of "research as a charitable activity."

"Think tanks make it very clear from the beginning that their objective is to shape public opinion, and public policy," says Western University political science professor Donald Abelson. He has spent two decades studying think tanks in Canada and the U.S. and he's currently writing a book about them.

Just read the annual reports from some of Canada's leading think tanks to find proud claims of "shaping the national discourse", "prodding governments, opinion leaders and the general public," "changing the minds of decision makers," yet none of that activity apparently trips the wire between political and charitable activity.

"We're in kind of a grey area, particularly over the last several years, where the lines between policy research and political advocacy have become increasingly blurred," Abelson said.

Which circles back to the prickly question of how to define "political activities."

Is it a political activity, for example, to push for a greater role for private industry in the public delivery of health care, which might require changing laws?

In April, the Alberta Court of Appeal will hear a case aimed at striking down the Alberta Health Care Insurance Act, an action being brought by the Justice Centre for Constitutional Freedoms, a registered charity.

Next month a B.C. court will hear a similar case, as the owner of a private surgical clinic argues that denying patients the right to pay him directly for surgery is a violation of their rights under the Canadian Charter of Rights.

"I would eat my proverbial hat if those think tanks on the ideological right or conservative end of the spectrum were being audited," said Bruce Campbell from the Canadian Centre for Policy Alternatives. (CBC)

That case is being supported by the Canadian Constitution Foundation, a registered charity, which is also sponsoring a similar case in Ontario.

For the Canadian Constitution Foundation, this is part of a national campaign, supported by charitable tax credits, to use the courts to open up health care to more private service delivery.

Although the Foundation is one of the 60 charities being audited, others in these court challenges aren't.

"When you're going to court to secure the rights and freedoms of people, Canada Revenue Agency does not regard that as political, and that's where it stands," said John Carpay, president of the Justice Centre for Constitutional Freedom.

U.S. partners

Back when the political audits began, the government said "concerns have been raised that some charities may not be respecting the rules regarding political activities," including "the extent to which they may be funded by foreign sources."

It turns out that many Canadian think tanks have foreign affiliations, including the two groups fighting in court for greater private health care.

The Canadian Constitution Foundation and the Justice Centre for Constitutional Freedom are among 16 Canadian think tanks listed as partners with a U.S. free market group called the Atlas Network.

Other Canadian partners in this network include the Fraser Institute, the Montreal Economic Institute, the MacDonald-Laurier Institute, and the Atlantic Institute for Market Studies, all registered charities.

"We have a small annual grant from Atlas," said Carpay, at the Justice Centre for Constitutional Freedom.

The Canadian Constitution Foundation has listed Atlas as a donor in the past, as has the Atlantic Institute for Market Studies and the Montreal Economic Institute.

Atlas says there is only one condition of partnership, that the partner organization "shares Atlas Network's vision of a free, prosperous and peaceful world where limited governments defend the rule of law, private property and free markets."

"More and more we have linkages between think tanks in Canada and the U.S.," notes Western's Abelson. "It's part of a transnational or global initiative that think tanks are undertaking because they realize the more organizations involved, the more resources upon which they can draw, the greater strength they will have in shaping public opinion and public policy."

 None of these Atlas Network partners reported engaging in any political activity last year, even though, under the rules, charities are allowed to spend up to 10 percent of their funds on "political activities".

The CRA bans all openly partisan action, such as campaigning to elect specific political parties, and demands that charities declare everything else.

'The lines between policy research and political advocacy have become increasingly blurred.'- Donald Abelson

"This includes reporting on any political activities such as explicitly communicating to the public that a law, policy or decision of any level of government" should be changed, the CRA said in an email. "There are no special reporting exemptions for think tanks."

The key word appears to be "explicit." These think tanks have produced reports and published columns supporting a greater role for private industry in the public health care system. They call it "education."

But the auditors determined that Dying With Dignity's use of commentary and opinion violated the charitable purpose of "advancing education."

"Bias" triggered think tank audit

The whiff of bias has prompted an audit of at least one think tank: the Canadian Centre for Policy Alternatives, a registered charity that has released reports calling for a strengthening of the public health care system among other things.

When the group got the auditor's call last April, executive director Bruce Campbell filed an access to information request to find out why. He received a single page document written by a CRA "screener."

"The screener had determined that there was a possibility of bias and one-sideness in our work, and so that was the grounds upon which the screener recommended a political audit," Campbell said.

Campbell said the CCPA positions itself on the left of the political spectrum, opposite the think tanks affiliated with the Atlas Network.

"I would eat my proverbial hat if those think tanks on the ideological right or conservative end of the spectrum were being audited," says Campbell.

The Canadian Constitution Foundation said it is being audited.  The Justice Centre for Constitutional Freedom and the Macdonald-Laurier Institute both said they are not being audited. The Fraser Institute, the Montreal Economic Institute, and the Atlantic Institute for Market Studies refused to comment.

Although Dying with Dignity lost its charitable status, the court case against assisted dying continues with a long list of interveners. Many are also registered charities, including the Christian Legal Fellowship, the Evangelical Fellowship of Canada, the Catholic Health Alliance, the B.C. Civil Liberties Association and the Canadian Unitarian Council.

Of that group, only the Canadian Unitarian Council has received a notice of audit. It's a liberal faith group that joined Dying with Dignity in supporting the right of the terminally ill to assisted dying.

Listen to CBC National Radio News and watch CBC-TV's The National tonight for more.

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