Members and friends of PEN Canada will remember that in 2012 PEN began questioning Canada Revenue Agency’s ramped-up auditing of charities. We asked whether the CRA’s approach to what is “political activity” by a charity was clear and acceptable. CRA guidelines prevent a registered charity from engaging in more than a token amount of political activity (10 per cent of its overall work). A political activity is defined as “an activity aimed at retaining, opposing, or changing the law, policy, or decision of any level of government in Canada or a foreign country.” We, along with many others, wondered whether the CRA was using this broad and ambiguous restriction to dissuade charitable organizations from directly or indirectly criticizing government policy.
Now PEN Canada itself is being audited by the CRA for the years 2011 – 2013. Two CRA auditors spent time in our offices last summer examining our records and reviewing our books. In January, as part of the audit process, we received a letter from the CRA giving us their audit findings and proposing, as is normal, a “compliance agreement.” For the most part, the CRA findings were of a minor and technical nature. In many cases, we had already changed our procedures as a result of an earlier internal review. Most of the proposed compliance agreement causes us no difficulty at all.
But the proposed agreement reiterates the CRA’s broad definition of political activity and the 10 per cent limitation. PEN Canada is an advocate for freedom of expression at home and abroad. Were we to accept the CRA’s view of political activity, we would be precluded (subject to the 10 per cent exception) from criticizing a government policy or decision that we believed infringed on every Canadian’s constitutionally-guaranteed right of free expression. We would not, for example, be allowed to criticize the Egyptian government’s treatment of the journalist Mohamed Fahmy (if we had exceeded the 10 per cent limit). An essential part of our work would be denied us. Little would be left but for us to fold our tents and steal away.
Advocacy of fundamental human rights, in Canada or elsewhere, transcends politics. It should not be swept up and severely restricted by a capacious and vague government definition of what constitutes “political activity.” We will shortly be discussing this difficulty with the CRA, and hope to prevail. It will be an important discussion, for us and many other charities.
President, PEN Canada