The Applicant was a registered charity with the stated charitable purpose of relieving poverty and had an “overall goal of ending poverty through advocacy” (para. 23). CRA concluded that virtually all of the Applicant’s activities involved political engagement in the nature of communications to the public advocating policy changes. It brought an application challenging the prohibition on “political” activity of this scale under s. 149.1(6.2) as interpreted by CRA.
After finding (at para. 30) that “there is no doubt that the activity in which the Applicant wishes to engage – public advocacy of policy change – is within the guarantee of freedom of expression,” and noting (at para. 31) 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 further stated (at paras 39, 42 and 43):
[V]irtually everything that the Applicant does is “political”, although those political activities are conceptually ancillary to –i.e. a mechanism to achieve – its charitable activities and purpose. …
Simply put, there is no way to pursue the Applicant’s charitable purpose – using methodology that is recognized as necessary by Parliament itself – while restricting its politically expressive activity to 10% of its resources as required by CRA under s. 149.1(6.2). …
Moreover, the evidence is that the Applicant cannot function – or will have difficulty in functioning – in the absence of registered charitable status.
After concluding (at para. 49) 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 establish under s. 1 of the Charter that such infringement was reasonable and justified in a free and democratic society, as there had been a failure to answer the question as to “why Parliament has limited political speech acts done in furtherance of accepted charitable purposes” (para. 57).
He went on to make a declaration (para. 72) 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” and (at para. 73):
The exclusion from “charitable activities” of partisan political activities contained in subsection 149.1(6.2)(c) of the ITA remains in force.