The Canadian Bar Association (“CBA”) has recently made submissions to the federal government on National Security and Housing that are of interest to charities and not-for-profits.
The National Security Submission was in response to the Justice and Public Safety Ministers’ study of national security in Canada, and is a response to “Our Security, Our Rights: National Security Green Paper, 2016”. The CBA makes 23 recommendations for changes to the existing national security framework, including amendments to Bill C-51, the Security of Canada Information Sharing Act, the Charities Registration (Security Information) Act, and provisions of the Criminal Code, as well as policy and operational changes for agencies involved in national security. Of specific interest to charities is CBA recommendation number 20 on terrorist financing. The recommendation says:
The CBA recommends that the federal government:
- amend section 83.19(2) of the Criminal Code on facilitation, to eliminate the strict liability element of the offence and require the Crown to prove criminal intent.
- create an exception for the delivery of humanitarian aid that incidentally supports a member of a terrorist group (for example, a charity that delivers medical supplies to a hospital that treated a member of a terrorist group would not be subject to prosecution).
- institute a clear mens rea requirement to the Charities Registration (Security Information) Act.
- amend the Charities Registration (Security Information) Act so the Federal Court judge to whom a certificate is referred shall not find the certificate to be reasonable where an applicant or registered charity establishes that it has exercised reasonable due diligence to avoid the improper use of its resources.
- amend the Charities Registration (Security Information) Act to allow an appeal to the Federal Court of Appeal of a decision by a Federal Court judge that a referred certificate is reasonable.
- develop Canadian guidelines for charities operating abroad or domestically so those charities can show due diligence in complying with anti-terrorism legislation.
As charities operating internationally have reported that complying with Canada’s anti-terrorism and money laundering laws can be challenging, this recommendation is designed to ease some of the tensions that exist between the law and the practical operational necessities of charities operating abroad.
The Submission on Housing provides input on CRA’s Guidance CG-022, Housing and Charitable Registration (the “Guidance”). Suggestions from the CBA include defining some of the terms used in the Guidance, such as “comfortable”, “modest”, “aged”, “conditions associated with the aged”, “additional issues” and “providing housing, shelter, or accommodation can further other charitable purposes”, and asks that important information be made part of the body of the Guidance rather than being part of the footnotes. The CBA points out that this Guidance does not reference another commentary by the CRA, CPC-004, Housing for Seniors (Life-Tenancy Agreement), and goes on to suggest that a complete discussion of the topic of Housing and Charitable Registration should include “whether providing housing to seniors under different arrangements is considered charitable.” The CBA suggests that the Guidance should be cross-referenced with other related guidances and commentaries by CRA. The CBA also suggests that CRA should provide a guidance on “mixed use” housing projects that combine a “charitable” housing component (and other charitable uses) with below-market rental housing, and occasionally a commercial or market housing component to be sold or leased to provide the necessary financial means to develop the charitable and below market rental housing.”