Does Canada’s Registered Charity Regime Withstand Charter Scrutiny? The Interplay Between Charities, Politics, and Freedom of Expression Following Canada Without Poverty

Abstract

In the 2018 decision Canada Without Poverty v AG Canada, the Ontario Superior Court of Justice (“ONSC”) held that the former iteration of subsection 149.1(6.2) of the Income Tax Act, which limited registered charities to spending no more than 10 percent of their resources on non-partisan political activities, unjustifiably infringed the applicant charity’s right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”). This decision appears to leave the present subsection 149.1(6.2) vulnerable to a similar constitutional challenge, as it continues to restrict charities from engaging in partisan political activities and pursuing political purposes. Building on charity law scholar Kathryn Chan’s paper “Constitutionalizing the Registered Charity Regime,” this paper presents a hypothetical Charter challenge to test whether the amended subsection 149.1(6.2) could withstand a section 2(b) challenge and, if so, whether it could be justified under section 1. Through its Charter analysis, this paper critically examines the long-standing assumption that politics and charities are incompatible and evaluates justifications for maintaining the separation between politics and charities.