Ottawa drops appeal in political activity case, ending charities’ 7-year audit nightmare


The Liberal government has withdrawn its appeal of a stunning 2018 court ruling that quashed a section of the Income Tax Act limiting the political activities of charities.

The landmark case was launched a tiny Ottawa charity, Canada Without Poverty, which argued that the section violates the Charter of Rights guarantee of freedom of expression.

Justice Edward Morgan of the Ontario Superior Court of Canada agreed in his July 16 ruling, declaring that the section no longer had any « force and effect. »

Canada Without Poverty had been under threat of losing its charitable status after auditors at the Canada Revenue Agency (CRA) determined that 98.5 per cent its activities were political. Charity law, as it was written at the time, had limited political activities to no more than 10 per cent of an organization’s resources, though critics have said the law’s definition of ‘political’ was too fuzzy.

Leilani Farha, head of the tiny Ottawa charity Canada Without Poverty, helped launch the court challenge of the political-activity limits in charity law, saying it restricted freedom of expression. An Ontario court agreed. (Idil Mussa/CBC News)

After losing the case, the Liberal government eventually agreed to rewrite the Income Tax Act to accommodate Justice Morgan’s ruling – but paradoxically announced Aug. 15 it was appealing the case because of an alleged error of law in the judgment.

Anne Ellefsen-Gauthier, spokesperson for National Revenue Minister Diane Lebouthillier, told CBC News the government still believes Morgan made an error in law by applying a test for religious freedom rather than for freedom of expression.

But after consulting with the charity sector last fall and reviewing higher court rulings, the government has decided not to fight the Ontario case because little would be gained by the effort.

« Higher courts have already been pretty clear on the different test that needs to be applied to freedom of expression, » said Ellefsen-Gauthier. « We’re dropping the appeal. »

The law amended

The Liberal government has since amended the Income Tax Act, under Bill C-86, to remove all reference to political activities for charities. The omnibus bill, one of two implementing last year’s budget measures, received royal assent on Dec. 13, 2018.

The department also recently published a guidance document to inform the charity sector on how the new regime — which still includes a strict prohibition on partisan activities — will be applied. Notably, the term « political activities » has been replaced by the phrase « public policy dialogue and development activities. »

But charities still cannot endorse or support political parties or candidates for office, something the sector has always accepted.

Ottawa’s decision Thursday appears finally to end a long nightmare for some charities targeted by a special CRA auditing program launched in 2012 by the former Conservative government to review the political activities of charities. More than $13 million was earmarked for audits of 60 charities over four years.

The Conservative government of Stephen Harper launched a four-year program to audit the political activities of charities beginning in 2012. Some $13 million was budgeted for the program, which targeted 60 charities. (Tom Hanson/Canadian Press)

In its first year, the controversial program targeted environmental charities, most of which were critics of the government’s energy and pipelines policies. It was later expanded to include religious and human rights charities, among others. The targeted charities said the audits drained precious resources and in some cases led to an « advocacy chill » as groups self-censored so as not to aggravate the government.

The Liberals campaigned in the 2015 federal election on ending the « political harassment » of charities but did not halt the audit program immediately, winding it down only in stages and letting some audits continue. The program has since been cancelled.

« The decision to let Justice Morgan’s decision stand is a huge victory for democracy in Canada, » said Leilana Farha, head of Canada Without Poverty.

« The government has done the right thing twice. First they made the legislative changes recommended by the government’s appointed panel and ordered by Judge Morgan, and now they have properly decided to withdraw their appeal … »

« This decision puts Canada in the lead among common law countries and will have a positive effect not only in Canada, but worldwide. »

Follow @DeanBeeby on Twitter


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CSIS sees ‘significant’ jump in far-right activity online


In a three-part series, the Star looks at the rise of white nationalist and right-wing extremist groups in Canada, and what authorities are doing to identify and suppress these threats. This is part 3. To read the first part, click here and to read the second part, click here.

OTTAWA—One month after the deadly shooting rampage at the Grande mosquée de Québec, Canada’s spy agency quietly put together a “preliminary assessment” of the threat far-right extremists pose in Canada.

The report, heavily censored and stamped “SECRET,” noted right-wing extremism and violence is nothing new in Canada — in fact, it was present in the earliest days of colonization.

The Canadian Security Intelligence Service (CSIS) traces far-right violence back to race riots in Nova Scotia in the 1780s, racial segregation in Ontario schools in the 1840s and violence against Chinese and Japanese immigrants at the turn of the 20th century, “not to mention” generations of discrimination against Indigenous peoples.

“At the heart of all right-wing extremism is hatred and fear,” CSIS wrote in an analysis obtained by the Star under access to information law.

The attack at the Quebec mosque in January 2017, which left six people dead and many others injured, prompted CSIS to reopen an ongoing investigation into far-right extremism, just one year after declaring the far right a “public order threat” to be dealt with by police, rather than a national security threat to be handled by intelligence agencies.

The agency’s assessment recognizes that Canada’s far-right movement is changing. Hate crimes have been steadily rising, primarily targeting Jewish and Muslim communities. While many of the far-right groups identified by CSIS a decade ago have disbanded, “numerous” incidents of right-wing extremist violence have been recorded since then.

And there has been a “significant growth” of online groups “focusing on a broad range of extreme right-wing positions, including white supremacy.”

CSIS declined multiple interview requests over the past three months, and did not specifically address a number of questions provided by the Star in September.

But the agency’s findings come as little surprise to researchers and experts who have long warned about a more active and emboldened far-right movement in Canada, the United States and Europe.

“There is a misconception that the far right is not a threat anymore, and that these groups don’t have power anymore,” said Ludovica Di Giorgi, an expert on the far right with Moonshot CVE, a U.K.-based counter-extremism and research outfit.

“These groups have influence and the far right is very much a threat still.”

For two weeks in September, Moonshot tracked far-right web searches in Canada using the company’s own proprietary software, which tracks the internet’s seamy underbelly.

The data, provided exclusively to the Star, provides for the first time a quantitative snapshot of online interest in the far right in Canada. The numbers suggest there’s cause for greater attention.

Between Sept. 11 and Sept. 25, Moonshot tracked a total of 5,214 far-right searches in Canada. The vast majority — roughly 88 per cent — focused on neo-Nazi (55 per cent) and white supremacist websites (33 per cent). Search terms included David Duke, the former leader of the Ku Klux Klan in the United States; popular neo-Nazi phrases and code words; extreme right bands; and tattoos of swastikas or other white supremacist imagery.

Over the weeks Moonshot tracked, Ontario had the most far-right searches in Canada relative to the population — almost 18 searches per 100,000 people.

Di Giorgi cautioned that two weeks is a relatively small sample, but said Canada had a higher number of far-right searches per capita over that period than Moonshot typically sees in the U.S.

Even after the deadly violence at the Unite the Right rally in Charlottesville, Va., in August 2017 brought the far right under mainstream scrutiny, Di Giorgi said right-wing extremist groups have had a largely uncontested platform on the internet.

“On the jihadist side (of extremism), you have no controversy over the fact that their content must be taken down. On the far right, there is controversy over whether that content classifies as content that should be taken down and should not be consumed by audiences across the world,” Di Giorgi told the Star in an interview.

“Their content is still available. It’s easy to find. They still have a presence on social media platforms. They’ve even created their own platforms … They use them to co-ordinate; they use them to organize, to spread their propaganda.

“It becomes even more problematic when these spaces are uncontested.”

What to do about these platforms has become a key question for Canadian law enforcement and intelligence agencies that, even if they acknowledge the threat right-wing extremism poses, have differing opinions on how to counter it.

James Malizia, the RCMP’s assistant commissioner of federal policing, suggested that encryption — a digital tool that lets citizens, businesses and governments secure their messages, transactions and sensitive data — is also providing cover for extremist groups.

While police agencies have long argued they must be able to bypass encryption, that may be impossible due to the proliferation of sophisticated encryption programs. Civil liberties advocates and technologists have also argued it would make everyone less safe by creating a back door for hackers or hostile governments. But encryption also undoubtedly makes police investigations more complicated.

“I think the issue of online activity, where some of it is either conducted on closed chats or encrypted … it certainly does not allow us the opportunity to be able to monitor what’s going on within those areas,” Malizia told the Star in a recent interview.

Beyond the technical issues is a broader, philosophical question: Do we really want police and intelligence agencies monitoring civilian conversations online? Should far-right — or far-left — groups be subjected to that level of scrutiny, however odious their beliefs?

On the other side of that question is the fact that two of the worst mass killings in recent Canadian history — Alexandre Bissonnette’s attack on the Quebec City mosque, and Alek Minassian’s van rampage in Toronto in April this year — involved some connection to the darker corners of the internet.

Bissonnette’s anti-immigration sentiments appear to have been stoked by far-right figures in the United States. Minassian reportedly identified as “involuntarily celibate,” or “incel,” a misogynistic and nihilistic subculture that lives on the same kind of message boards as the extreme right.

If radicalization is happening in those spaces, and people are being killed as a result, is that not a national security concern?

Canadians “need to think long and hard about what we want our national security services to do in this space,” said Stephanie Carvin, who researches national security and law at Carleton University.

“Because I personally am uncomfortable with CSIS patrolling the internet,” said Carvin, who previously served as a terrorism analyst at CSIS.

“That being said, there is no question that the internet does seem to be a necessary but insufficient ingredient in these radicalization and mobilization-to-violence cases. I think going forward, we need to really think about what are the costs of greater national security (presence) in these spaces.”

Alex Boutilier is an Ottawa-based reporter covering national politics. Follow him on Twitter: @alexboutilier


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