Canada Without Poverty – Ontario Superior Court of Justice declares that ss. 149.1(6.2)(a) and (b) are of no force and effect

A registered charity devoted most of its resources to public policy advocacy with a view to ending poverty. Although this advocacy was subordinate to its poverty-reduction purpose, it nonetheless was considered by CRA to be devoting most of its activities to (non-partisan) political activities so that it was well outside the safe harbour in ITA s. 149.1(6.2) for ancillary political activities. The charity challenged this restriction on its political activities before Morgan J.

In response to the Attorney General’s argument that “the Applicant has a right to free speech, not to subsidized speech” through the ability to issue charitable receipts, Morgan J stated:

[T]he evidence is that the Applicant cannot function – or will have difficulty in functioning – in the absence of registered charitable status.

After concluding that s. 149.1(6.2) “violates s. 2(b) of the Charter in that it burdens the Applicant’s pursuit of public policy advocacy,” he found that the Attorney General had failed to justify this infringement under s. 1 of the Charter through failure to answer the question “why Parliament has limited political speech acts done in furtherance of accepted charitable purposes.”

He went on to make a declaration that “that ss. 149.1(6.2)(a) and (b) are of no force and effect pursuant to s. 52(1) of the Constitution Act, 1982.” However, he did not really mean this (which would have the effect of eliminating any safe harbour for even minor political activity) as he earlier made a declaration “that the phrase 'charitable activities' used in s. 149.1(6.2) be read to include political activities, without quantum limitation, in furtherance of the organization’s charitable purposes.” He also stated that the exclusion for partisan “charitable activities” in s. 149.1(6.2)(c) remained. Even before this, the Government was thinking about removing or amending ss. 149.1(6.2)(a) and (b),

He did not discuss jurisdictional issues. How are non-Ontario charities affected by his declaration? In reviewing any proposed revocation of registration of this or another charity by CRA, would the Federal Court of Appeal feel obliged to apply his modification of their Act?

Neal Armstrong. Summary of Canada Without Poverty v. AG Canada, 2018 ONSC 4147 under s. 149.1(6.2).