How will CRA prove or demonstrate that a PCC is misleading its clients? What objective standard will it rely on?
During the lead-up to the September 2021 federal election, Prime Minister Trudeau’s Liberal Party platform included a promise to strip “charity status to anti-abortion organizations (for example, Crisis Pregnancy Centres) that provide dishonest counseling to women…” Immediately, pro-life groups and especially pregnancy care centres (PCCs) felt the target on their backs. Speculation among these groups and the lawyers who represent them began to spread. Many of us assumed this was another empty promise from the Trudeau Government, like earlier campaign promises to increase palliative care spending by $3 billion and to abolish the “first-past-the-post” voting system. Unfortunately, those of us who made that assumption were proven wrong in December 2021, when Mr. Trudeau issued new mandate letters to his various cabinet ministers. In his letter to Minister of Finance Chrystia Freeland, he instructed that she:
“Introduce amendments to the Income Tax Act to make anti-abortion organizations that provide dishonest counselling to pregnant women about their rights and options ineligible for charitable status, and to expand the Medical Expense Tax Credit to include costs reimbursed to surrogate mothers for IVF expenses. You will be supported in this work by the Minister for Women and Gender Equality and Youth.”
The amendments to the Income Tax Act have not been publicized yet, so we don’t know what, if anything, will come from those instructions. Minister Freeland could amend the ITA in a few ways to accomplish her mandate:
- She could change the “charitable heads” (which include the relief of poverty, education, and the advancement of religion; most PCCs operate under “relief of poverty”) though it seems unlikely that this government would axe poverty relief as a charitable activity.
- She could expand the Canada Revenue Agency’s existing and already broad powers to police charities engaging in fraudulent or dishonest reporting.
- She could impose, as other government departments have, a pro-abortion attestation for charities to sign on an ongoing basis.
As readers will recall, a pro-abortion attestation is something this government has already attempted to impose on public grant applicants in its revisions to the 2018 Canada Summer Jobs (CSJ) program. You may recall how the government backed down in 2019 after a nationwide controversy over the Marxist nature of the attestation.
You may also recall that the 2019 version of the CSJ program swapped the pro-abortion attestation for a diversity statement: our firm successfully represented Redeemer University in its challenge to the government’s rejection of their CSJ application. In that case, the Federal Court of Canada found that – though the government failed to provide adequate evidence regarding the role Redeemer’s religious beliefs had on its rejection of their CSJ application – if it could be shown that officials discriminated in administering a government program against a faith-based institution because of its sincerely held religious beliefs, a conclusion that the institution’s Charter rights were violated would likely follow.
Until the Liberals proceed with a bill proposing amendments to the ITA, we cannot know how its campaign promise and subsequent mandate letter will affect PCCs. We don’t know if they will target existing charities or simply reject new applications for charitable status. Either way, the implications for existing and prospective PCCs are serious and go beyond the ability to issue charitable donation receipts. While a PCC could continue to operate without charitable status, for those PCCs with assets (cash in the bank, a building, investments, or other property such as ultrasound machines), revocation of their charitable tax status means that these assets need to be transferred to another charity. This could result in the loss of millions of dollars worth of assets donated to these PCCs for a specific purpose. It is scandalous to think that one’s charitable gifts could be taken hostage by the government.
How will CRA prove or demonstrate that a PCC is misleading its clients? What objective standard will it rely on? Will the CRA ask the Tax Court of Canada to make findings of fact on matters of ethics, religion, and embryology? I cannot imagine them asking the Court to do so, nor can I imagine the Court accepting such an invitation. This may be nothing more than an unenforceable policy position meant to pander to a particular segment of the population.
I have represented PCCs individually and through co-operative associations, and have sat on the board of directors of my local PCC. In my experience, PCCs do not mislead their clients – neither the pregnant women they seek to assist nor their loved ones. All one needs to do is explore PCC websites to learn that, while they explicitly state that they do not perform or refer for abortions, they are committed to informing women in a non-judgmental way about all available options.
According to Pregnancy Care Canada, “…we believe every individual in Canada challenged by an unexpected pregnancy should have access to accurate information and compassionate support.” Accurate information can include the use of fetal heart rate monitors and ultrasound machines, as well as offering adoption, counselling, and social service resources. A medical professional providing care in the event of a planned pregnancy would do no less.
For now, we must play the “wait-and-see” game, but in the interim there are steps PCCs (existing or prospective) can and should take to protect their mission and assets. The Acacia group can help with this.
Albertos Polizogopoulos is co-founder of the Acacia Group and a constitutional litigation lawyer who specializes in freedom of religion. The Acacia Group is Canada’s only openly Christian law firm devoted to offering legal and crisis communications services to churches, organizations, individuals, and businesses.