NEW CCRA POLICY STATEMENT ON
REGISTERING CHARITIES THAT PROMOTE RACIAL EQUALITY
By Terrance S. Carter and Suzanne E. White
A. INTRODUCTION
This Charity Law Bulletin (“Bulletin”) provides
a brief overview of the Registering Charities that Promote
Racial Equality Policy Statement, issued by the Canadian
Customs and Revenue Agency (“CCRA”) on September 2,
2003 (“Policy Statement”). The Bulletin also
comments on a few of the more important aspects of the new Policy
Statement. The Policy Statement is available on the
CCRA website at http://www.ccra-adrc.gc.ca/tax/charities/policy/cps/cps-021-e.html.
The Policy Statement will have application to organizations
focusing on addressing racial discrimination, those established
to foster positive race relations within Canada, as well as
immigrant, refugee, ethno-cultural, and other organizations
seeking to include racial equality objects in their incorporation
documents. The Bulletin provides some background in the
developments leading up to the creation of the Policy Statement,
then outlines the purpose and the rationale behind the Policy
Statement, as well as explains the types of activities and
charitable purposes concerning racial equality that are considered
either acceptable or unacceptable to CCRA, and finally provides
some comments concerning the implications of the Policy Statement
for charities seeking to promote racial equality.
B. BACKGROUND TO THE RACIAL EQUALITY POLICY STATEMENT
In early 2003, CCRA solicited commentaries until March 31st,
2003 from charities and anyone else interested in the charitable
sector for its Consultation on Proposed Policy – Registering
Charities that Focus on Eliminating Racial Discrimination
(“Proposed Policy”). A cursory comparison of the Proposed
Policy with the current Policy Statement reveals
a change in the title’s terminology from “Charities
that Focus on Eliminating Racial Discrimination” to a more
positive “Charities that Promote Racial Equality”.
The current Policy Statement also includes more in-depth
definitions of racism and racial discrimination, as well as
including a new term and definition for “promoting racial
equality” compared to the Proposed Policy. These
definitions now include the following key terms:
“Promoting Racial Equality” means working to ensure
the full and equitable participation of racial and ethnocultural
groups in Canada, consistent with the equality rights guaranteed
by the Canadian Charter of Rights and Freedoms, existing legislation,
and public policy. It includes efforts such as eliminating
racial (including ethnic) discrimination, and encouraging
positive race relations, which encompasses efforts to improve
relations between any racial and/or ethnic groups in Canada;
“Racial or Cultural Group” is a group defined by
its race, colour, national or ethnic origin. To the extent
that religion is inextricably linked to the group’s racial
or cultural identity, it can also become a defining characteristic;
“Racism” includes “racist ideologies, prejudiced
attitudes, discriminatory behaviour, structural arrangements,
and institutionalized practices” resulting in racial
or ethnic inequality. It can be characterized as “a set
of implicated or explicit beliefs, assumptions and actions
based upon an ideology that one racial or ethnic group is
superior to another”;
“Racial Discrimination” means any distinction,
exclusion, restriction or preference based on race, colour,
descent, or national or ethnic origin which has the purpose
or effect of nullifying or impairing the recognition, enjoyment
or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any
other field of public life.
The rationale for the Policy Statement, which is discussed
below, has also been expanded. The new Policy Statement
does not have a section devoted to political activities, whereas
the Proposed Policy did, since political activities is
now contained in its own Policy Statement released on
the same day as the Racial Equality Policy Statement,
September 2, 2003. The list of racial equality activities and
programs that CCRA will now find acceptable under the new Policy
Statement compared to the Proposed Policy has increased
from seven to ten types of activities, creating more ways in
which the promotion of racial equality can be advanced.
C. RATIONALE BEHIND THE RACIAL EQUALITY POLICY STATEMENT
The Policy Statement consists of a series of guidelines
by CCRA describing how charities that promote racial equality
can be registered under the Income Tax Act (“ITA”),
either under the charitable category of “advancement of
education” or “other purposes beneficial to the community”.
CCRA has acknowledged that racial discrimination is an identified
social problem, which has been prohibited in Canada both via
provincial and federal legislation, and as ratified by Canada
for many years in a number of international human rights conventions
that are listed in Appendix B to the Policy Statement.
In the past, CCRA has relied upon the British decision of Re
Strakosch, [1949] 1 Ch. 529 (C.A.), in holding that the
promotion of racial equality was a political purpose, rather
than a charitable purpose. However, since the Re Strakosch
decision, both legislation and public policy in Canada has recognized
and supported the promotion of racial equality and positive
ethno-cultural relations.
In keeping with this recognition, CCRA has determined that
the promotion of racial equality should be legally recognized
as charitable, instead of as a political purpose. This is a
welcomed development by CCRA and is evidence that CCRA can in
some circumstances use its administrative discretion to expand
the definition of what is “charitable” beyond the
restrictions of what the courts have decided in the past that
may be out of sync with current laws and public policy in Canada.
This is particularly important to do in relation to promoting
racial equality, since the Supreme Court of Canada in Vancouver
Society of Immigrant and Visible Minority Women v. M.N.R.
(1999), 99 DTC 5034, declined to comment on “whether the
elimination of prejudice and discrimination may be recognized
as a charitable purpose at common law”.
The Policy Statement explains that any organization
wishing to become registered as a charity must have exclusively
charitable objects and must fall within one of the four categories
articulated by the courts and recognized by CCRA, including
the relief of poverty, the advancement of education, the advancement
of religion, or other purposes that benefit the community. All
objects must be precise and refrain from efforts to retain,
oppose, or change the law or policy at any government level
both within Canada and abroad. All charitable organizations
are also limited in the amount of political activities they
may sponsor directly and/or indirectly (see CCRA’s Political
Activities Policy Statement, available at http://www.ccra-adrc.gc.ca/tax/charities/policy/cps/cps-022-e.html).
D. RACIAL EQUALITY UNDER CCRA CHARITABLE CATEGORIES
An organization seeking to obtain charitable status in order
to promote racial equality must consider both the charitable
activities that it proposes to carry out and its charitable
objects that it intends to achieve, which are set out in its
Letters Patent and/or Supplementary Letters Patent. CCRA has
identified both acceptable and unacceptable activities and objects
which fall under either or both of two categories of charitable
objects: “advancement of education” and/or “other
purposes beneficial to the community.” However, objects
cannot include efforts “to retain, oppose, or change the
law or policy or decisions of any level of government in Canada
or a foreign country, as this is considered a political purpose,
and, therefore, not charitable”. What follows are lists
of both acceptable and unacceptable activities in relation to
the promotion of racial equality as set out in the Policy
Statement.
1. Advancement of Education
CCRA recognizes that groups that educate about racial equality
or about methods of promoting it can be recognized as charitable
under the “advancement of education” category.
a) Acceptable Activities
Under the Policy Statement, charities registered under
the “advancement of education” category can undertake
the following examples of programs both in Canada and abroad,
summarized below as follows:
- programs that educate about individual or systemic racism;
- development of curriculum materials for anti-racism or
diversity training and leadership programs;
- research groups focused on a range of topics, the results
of which are available to the public;
- Web sites offering a range of interactive resources such
as self-study materials or online courses that educate about
race relations or anti-racism;
- scholarships and bursaries to further knowledge in the
area of race relations, equity, and methods or promoting
racial equality;
- educational programs focused on specific areas of concern,
such as law enforcement, schools, employment, or housing;
- educating about a specific manifestation of racism (e.g.,
hate group activity);
- programs organized by members of a community experiencing
documented patterns of racial discrimination designed to
educate the public about the discrimination faced by that
particular community.
b) Unacceptable Activities
The following are examples of activities that CCRA would
not find acceptable in relation to racial equality under the
“advancement of education” category:
- programs that have as a purpose legislative change or
change in government policy, as this would be considered
a political, not a charitable purpose; and
- materials that the group knows or ought to know are inaccurate,
false, misleading, inflammatory, biased, or disparaging
would not be considered to be educational.
c) Acceptable Charitable Objects
The following charitable objects are examples which CCRA
would consider acceptable in relation to racial equality under
the “advancement of education” category:
- to educate about racial prejudice and discrimination through
programs, seminars or workshops intended for the general
public;
- to organize and implement conferences, workshops or other
programs about institutional and individual forms of racism,
discrimination, and stereotyping;
- to conduct research, compile data, and disseminate results
about racism or ethno-racial disparities to increase understanding
and awareness about existing rights of racial minorities.
d) Unacceptable Charitable Objects
The following objects are examples of what CCRA would likely
find unacceptable in relation to racial equality:
- “to support programs for the public” - as there
is insufficient information given and therefore vague;
- to carry on activities that are charitable at law”
- also because there is insufficient information given,
and therefore vague; and
- to promote international friendship or understanding between
states” - because the sphere of international relations
is the sole purview of the state and therefore not charitable.
2. Other Purposes Beneficial To The Community
CCRA has also determined that promoting racial equality through
positive race relations efforts and eliminating racial discrimination
will now be considered to be a charitable purpose under the
category of “other purposes beneficial to the community”.
Normally, the public benefit component of a charitable purpose
would require that the program and services would be available
to everyone. Where the charity proposes to restrict these services
and programs to a particular group, the restriction must be
clearly linked to the benefit. CCRA gives as an example in this
regard where a particular community has experienced sustained
discrimination in Canada, then the need to mitigate their long-standing
discrimination may well justify the group restricting or focussing
on the common needs of that community.
a) Acceptable Activities
CCRA has determined that the following types of programs
and activities would be acceptable under the head of other
purposes beneficial to the community.
- raising public awareness by disseminating factual, well-reasoned
information as part of the group’s outreach, such as
using brochures and Web sites;
- establishing and maintaining peer support groups among
[name of intended group] as well as members of the public;
- community resource centres to further inter-cultural co-operation
and diversity;
- public discussion groups that raise awareness of racism
and alternatives to stereotyping and prejudice;
- cross-cultural exchange programs to promote positive race
relations and diversity;
- providing anti-racism awareness activities in conjunction
with other programs;
- encouraging compliance with existing anti-discriminatory
legislation by using fair and balanced approaches to monitor
racial bias and discriminatory practices in a particular
fields;
- participating in a network or coalition made up of organizations
supporting anti-racist or positive race relations aims in
order to share resources;
- establishing awards for exemplary anti-racist or race
relations programs; or
- memorials to inform the public about the experiences of
communities that have faced discrimination.
b) Unacceptable Activities
CCRA gives as an example of an activity that would be considered
unacceptable under the “other purposes beneficial to
the community” category as “opposing or lobbying
for changes in, or the retention of, the law or policy, or
decisions of any level of government, since this type of activity
is considered political”.
c) Acceptable Charitable Objects
The following charitable objects to promote racial equality
would be considered by CCRA to be acceptable under the “other
purposes beneficial to the community” category:
- to promote good race relations by encouraging equality
of opportunity between persons of different racial groups
through certain programs;
- building peaceful and co-operative networks to promote
positive race relations between groups experiencing conflict
from their countries of origin;
- to ensure existing democratic and human rights are upheld
for the ethnic and racial minorities by providing certain
programs;
- to establish and maintain information and counselling
programs for individuals, groups, and organizations that
have experienced discrimination by providing information,
counselling, legal services, and follow up support;
- to develop programs that remove barriers to equal participation
for racial and ethnic minorities; or
- to change racist institutional practices through programs
that inform employers about the advantage of hiring qualified
racial minority workers.
d) Unacceptable Charitable Objects
The following racial equality charitable objects would be
considered unacceptable by CCRA under the “other purposes
beneficial to the community” category:
- fostering good relations between countries, as this is
a matter of foreign policy;
- to eliminate racism, as there is insufficient detail given;
- to work toward positive race relations, as there is also
insufficient detail given;
- to assist ethno-racial communities in overcoming discriminatory
barriers, as there is also insufficient detail given;
- to adopt special programs to address disadvantaged individuals
or groups, as there is also insufficient detail given.
E. OTHER RESOURCE MATERIALS
Charities and their legal advisors can also consult related
publications found on the CCRA website to procure other resource
materials on the topic of promoting racial equality or related
maters.
It is also important to consult CCRA’s Political Activities
Policy Statement, which is referred to a number of times
in the Racial Equality Policy Statement in relation to
the nature of objects and activities under a racial equality
mandate.
F. CONCLUDING COMMENTS
The Policy Statement represents an important expansion
of the inherent administrative discretion of CCRA from that
of interpretation of the common law to an expansion of the common
law definition concerning what is charitable. In order to keep
pace with legislative changes that have occurred in public policy,
both in Canada and internationally, CCRA has recognized that
charities that either educate about or promote racial equality
in Canada will be considered charitable rather than pursuing
political activities and will therefore be granted registered
charitable status.
The Policy Statement will now be a mandatory reference
for charities and lawyers as they draft charitable objects and
statements of activities to accompany applications for Letters
Patent/Supplementary Letters Patent. Other organizations that
either now or intend in the future to address other forms of
discrimination as prohibited under the Charter of Rights
and Freedoms and other human rights legislation will also
find the Policy Statement helpful, since CCRA has advised
that the guidelines in the Policy Statement will likely
be mirrored in future policy statements dealing with the registration
of charities that intend to combat discrimination in other forms.
CCRA initiative in this regard is a positive development for
the charitable sector and for Canada as a whole, and for this
CCRA is to be commended.
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