The charitable organization Canada Without Poverty (“CWP”) has created some buzz lately with its constitutional challenge to a provision in the Income Tax Act that makes charitable tax status contingent on refraining from engaging in certain “political activities”.
As a preliminary matter, there is always a risk in assessing laws impacting expression that our thinking will become clouded by sympathies for the expression at issue. In order to avoid this at the outset of this egregiously long post, I would like to invite readers to not think of this as a challenge brought by an anti-poverty group. No one likes poverty. Think of it as a challenge brought by an organization whose otherwise lawful political expression you find obnoxious or distasteful. I, for instance, will imagine that the challenge was brought by a not-for-profit organization dedicated to promoting the interests of self-described “foodies”.
So the question is: does this lawful organization (whose ideas or objectives you dislike) have a constitutional entitlement to favourable tax treatment not available to other organizations, and to use the additional funds for their political purposes, as an incident of their fundamental freedoms?
Positive and Negative Rights
This challenge raises a number of unresolved issues that go to the very nature of the concept of “freedom” used in section 2 of the Charter, and in particular everyone’s favourite but murky (if not analytically unstable) distinction of “positive” vs. “negative” rights.
These difficult issues arise because the Government does not prohibit, restrict, or otherwise impose sanctions on organizations for engaging in political activities or expression. No one is stopping any organization from saying or doing anything, as such.
Rather, what the law does is make beneficial tax status contingent on refraining from engaging in political activities, including political expression. As I understand it, charitable organizations can engage in political activities and expression, or obtain tax breaks, but not both.
The difficulty with the CWP’s position is that we normally think of “freedom” as requiring the government to not interfere with the fundamental freedoms (religion, expression, assembly and association), but not as requiring positive state assistance for those activities. Presumably, we would all have greater opportunity to expend funds on religious, expressive or associational activities if we were afforded state assistance for them, be it through beneficial tax status, government grants, or positive legislative protections designed to facilitate these activities. But if you walk into court and say that the government has violated your fundamental freedoms because they have not left you with enough post-tax income to build a church or to run prime time election ads or to rent lane-time so your bowling association can practice, you will probably not get very far.
This point is not lost on the lawyers for the CWP. In their Notice of Application, they assert that they are seeking an entitlement to charitable status as such, but rather take the existence of charitable tax status as a given:
- CWP is not arguing that Parliament is constitutionally obliged to confer the benefit of charitable status for the promotion of any particular purpose or view. Though an argument could be advanced that governments have an obligation to provide statutory or financial support for organizations such as CWP to promote the relief of poverty, that is not the issue in this case. Parliament has accepted that relief of poverty is a charitable purpose and CWP has been granted charitable status to pursue this purpose. CWP relies on the fact that even if there is no constitutional obligation to provide charitable status for the relief of poverty, Parliament must ensure that where it chooses to provide the benefit, it does so in a manner that complies with the Charter. Restrictions imposed on CWP’s political expression must therefore be in compliance with the Charter. Section 149.1 (6.2) has as its clear purpose the restriction of political activities or expression. All of CWP’s activities that are subject to this restriction have expressive content, thereby bringing them prima facie within the scope of s. 2(b) protection.
While there are a number of ways this challenge could go,* I will focus on the constitutional principle underlined above – that while the government may not be constitutional required to confer a certain benefit, once it chooses to do so, it must do so in compliance with the Charter.
This principle is rather obviously true in general, but is more readily applicable in certain respects than in others. In particular, in the context of section 15 equality challenges, the government cannot extend a benefit to some and deny it to others on discriminatory grounds, and then claim it has not breached the Charter because the persons deprived of the benefit would have no entitlement to it in addition to their right to not be unlawfully discriminated against. The whole point of equality rights – and in particular the rights to “equal benefit” and “equal protection” of the law – is to forbid the discriminatory extension of benefits, burdens and protections.
The question the CWP application raises is different. It is not raising a section 15, relative-entitlement equality claim – I am entitled to this state benefit/protection/support because others get it. Rather, by relying on section 2, the CWP claim (or at least the angle I am focussing on) enters into the field of absolute entitlements – I am entitled to this additional state benefit/protection/support regardless of what other people get, because it is necessary to permit me to meaningfully exercise my fundamental freedoms.
Positive and Negative Rights and the Fundamental Freedoms
Generally, the courts have been resistant to extend state benefits or protections in that way under the fundamental freedoms. For instance, in Haig v. Canada, a case involving the government excluding persons from voting in a referendum due to their fluid residency status, L’Heureux-Dube J. made the following remarks:
As a starting point, I would note that case law and doctrinal writings have generally conceptualized freedom of expression in terms of negative rather than positive entitlements. (…)
It has not yet been decided that, in circumstances such as the present ones, a government has a constitutional obligation under s. 2(b) of the Charter to provide a particular platform to facilitate the exercise of freedom of expression. The traditional view, in colloquial terms, is that the freedom of expression contained in s. 2(b) prohibits gags, but does not compel the distribution of megaphones… [at 1035; emphasis added]
In applying this principle to the expressive ‘benefit’ at issue (the ability to express oneself through voting in a referendum), the Court in Haig found that there was no such entitlement:
A referendum is a creation of legislation. Independent of the legislation giving genesis to a referendum, there is no right of participation. The right to vote in a referendum is a right accorded by statute, and the statute governs the terms and conditions of participation. The Court is being asked to find that this statutorily created platform for expression has taken on constitutional status. In my view, though a referendum is undoubtedly a platform for expression, s. 2(b) of the Charter does not impose upon a government, whether provincial or federal, any positive obligation to consult its citizens through the particular mechanism of a referendum. Nor does it confer upon all citizens the right to express their opinions in a referendum. A government is under no constitutional obligation to extend this platform of expression to anyone, let alone to everyone. A referendum as a platform of expression is, in my view, a matter of legislative policy and not of constitutional law.
The following caveat is, however, in order here. While s. 2(b) of the Charter does not include the right to any particular means of expression, where a government chooses to provide one, it must do so in a fashion that is consistent with the Constitution. The traditional rules of Charter scrutiny continue to apply. Thus, while the government may extend such a benefit to a limited number of persons, it may not do so in a discriminatory fashion, and particularly not on ground prohibited under s. 15 of the Charter. [at 1041; emphasis added]
On this logic, the Court has rejected various constitutional challenges where the claimant sought state assistance or a certain ‘platform’ to facilitate their expression (i.e. a positive right). For instance, in NWAC, the Court rejected the claim that the government was constitutionally required under s. 2(b) to provide an aboriginal women’s group with funding and access to facilitate their position in constitutional negotiations:
It cannot be claimed that NWAC has a constitutional right to receive government funding aimed at promoting participation in the constitutional conferences (…) The respondents conceded as much in paragraph 91 of their factum as well as in oral argument. Furthermore, the provision of funding and the invitation to participate in constitutional discussions facilitated and enhanced the expression of Aboriginal groups. It did not stifle expression. (…)
At this point, I should add that it cannot be said that every time the Government of Canada chooses to fund or consult a certain group, thereby providing a platform upon which to convey certain views, that the Government is also required to fund a group purporting to represent the opposite point of view. Otherwise, the implications of this proposition would be untenable. For example, if the Government chooses to fund a women’s organization to study the issue of abortion to assist in drafting proposed legislation, can it be argued that the Government is bound by the Constitution to provide equal funding to a group purporting to represent the rights of fathers? If this was the intended scope of s. 2(b) of the Charter, the ramifications on government spending would be far reaching indeed. [at 654-656; emphasis added]
At one time, this was the default assumption that applied to all of the fundamental freedoms. As Robert Charney has recently explained, it has been applied in the context of freedom of religion, in cases like Adler:
Persons seeking funding for private religious schools have argued that without government funding they are unable to establish a religious school, or, if established, students who might want to attend would be unable to do so because they could not afford the tuition. In other words, they argued, that for at least some individuals, the right to attend a private religious school was meaningless in the absence of government funding to build and support such schools. This argument was rejected by the Supreme Court, which held that freedom of religion does not entitle one to state support for one’s religion. As Chief Justice Dubin stated in the Ontario Court of Appeal:
The right [to freedom of religion under Charter s.2(a)] involves the freedom to pursue one’s religion or beliefs without government interference, and the entitlement to live one’s life free from state-imposed religious beliefs. It does not provide . . . any entitlement to state support for the exercise of one’s religion.
Robert E. Charney, “Should the Law society of Upper Canada Give Its Blessing to Trinity Western University Law School” (2015) 34 NJCL 173 at 182; see also Adler, at para 199-200, per McLachlin J, at paras 171, 175, per Sopinka J., and at para 58, per L’Heureux‑Dubé J..
Similarly, in the context of freedom of association, the Court (at one time) rejected the proposition that the Government was required to extend certain ‘positive’ entitlements under the rubric of the fundamental freedoms, such as affirmative labour rights designed to facilitate or promote associational activities.
In Delisle v. Canada, for instance, the Court rejected the submission that excluding certain employees (there, RCMP members) from the protections found in the general labour relations statute violated their freedom of association. The RCMP members were left free to associate and to make representations to their employer about working conditions; they simply were not provided with the affirmative statutory protections necessary to enhance the power of that association in the collective bargaining context. In essence, the employer could ignore them. The majority explained the distinction between the principle’s application in the context of section 15 and in the context of the fundamental freedoms:
The structure of s. 2 of the Charter is very different from that of s. 15 and it is important not to confuse them. While s. 2 defines the specific fundamental freedoms Canadians enjoy, s. 15 provides they are equal before and under the law and have the right to equal protection and equal benefit of the law. The only reason why s. 15 may from time to time be invoked when a statute is underinclusive, that is, when it does not offer the same protection or the same benefits to a person on the basis of an enumerated or analogous ground (on this issue, see Schachter v. Canada,  2 S.C.R. 679), is because this is contemplated in the wording itself of s. 15. The distinguishing feature of s. 15 is that the Charter may require the government to extend the special status, benefit or protection it afforded to the members of one group to another group if the exclusion is discriminatory and is based on an enumerated or analogous ground of discrimination. (…)
It is because of the very nature of freedom that s. 2 generally imposes a negative obligation on the government and not a positive obligation of protection or assistance. (…)
On the whole, the fundamental freedoms protected by s. 2 of the Charter do not impose a positive obligation of protection or inclusion on Parliament or the government, except perhaps in exceptional circumstances which are not at issue in the instant case. In accordance with the decision of the majority of this Court in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), supra, there is no violation of s. 2(d) of the Charter when certain groups of workers are excluded from a specific trade union regime. The ability to form an independent association and to carry on the protected activities described below, the only items protected by the Charter, exists independently of any statutory regime. (…) [at paras 25, 26, 33]
As can be seen, the Court was characteristically cautious to never say never. In Haig, for instance, the majority mused that “a situation might arise in which, in order to make a fundamental freedom meaningful, a posture of restraint would not be enough, and positive governmental action might be required”. It gave the example of “legislative intervention aimed at preventing certain conditions which muzzle expression, or ensuring public access to certain kinds of information”, which it implied may require constitutional protection, despite the fact that it could be characterized as an assertion of a ‘right’ to positive protection or assistance (Haig at 1039). And as discussed below, the Court has taken this ball and thrown deep, especially (or perhaps exclusively) in the context of freedom of association and labour rights.
However, even after that ball started rolling, the Court has generally hewed closely to the orthodox distinction in most other contexts. In Siemens v. Manitoba, the Court again confirmed that freedom of expression did not entitle an individual to vote in a referendum, relying on Haig. And in Baier v. Alberta, the Court developed a somewhat obscure framework for the extension of positive rights in the context of section 2, in the course of rejecting the claim that freedom of expression was violated by excluding certain persons from running in a school board election. Notwithstanding the unique expressive advantage conferred by being a school trustee – i.e. it enhances the meaningfulness of expression – the court found that “claiming a unique role is not the same as claiming a fundamental freedom” (Baier at para 44).
Thus, I take it to be the general rule under section 2 that state may not act to impede religious belief or practice, expression, or associational activities, but it need not actively facilitate, promote, enhance or assist those activities.
Departing from the Rights vs. Freedom Distinction
The Court has since departed from this general s. 2 rule in a rather big way, albeit almost exclusively in one particular context: labour rights designed to facilitate meaningful association in the workplace. The first departure came in Dunmore v. Ontario, where the Court found that section 2(d) of the Charter required the extension of statutory rights specifically designed to facilitate the act of association, namely, protections against unfair labour practices of employers discriminating against employees who choose to associate (i.e. firing someone who joined a union), which employers are free to do at common law.
Since Dunmore, proceeding to BC Health and Fraser, and on to MPAO and Saskatchewan Federation of Labour, the Court has found that a broader range of affirmative statutory rights are necessary to permit workers to “meaningfully” exercise their fundamental freedom of association in the labour relations context. In these cases, no law or state actor stopped anyone from freely associating, generally speaking. The problem was that the association so created was not able to achieve what it was designed to achieve in the absence of unique statutory protections: i.e. engaging in meaningful collective bargaining, including by placing an obligation on the employer to bargain in good faith, protecting employees from termination lawful at common law, having access to a right to strike, and so on.
I do not think the Court has yet extended this principle outside the labour relations context, with one possible exception. In CLA, the Court found that section 2(b) of the Charter could require the government to disclose information in its possession where doing so was necessary to facilitate expression on the subject matter of the disclosure. I happen to think is not so much an exception to the general rule, but that discussion is beyond the scope of this post. In any event, and beyond the CLA case, the extension of fundamental freedoms to require positive state support appears to only really apply in the context of labour relations. As the Court stated in Dunmore, with perhaps some degree of understatement, “it may be asked whether the distinction between positive and negative state obligations ought to be nuanced in the context of labour relations” (at para 20).
Notably, in defending the position that section 2 imposes positive obligations on the government in some circumstances, the Court has arguably gone beyond the wholly defensible position that the distinction between (positive) rights and (negative) freedoms can be murky and will at least admit of borderline cases, to the more radical proposition that there is really no distinction at all, stating for instance that “(t)he freedom to do a thing, when guaranteed by the Constitution interpreted purposively, implies a right to do it.” (Fraser, at para 67).
I think that taken too far, this view is problematic, if for no other reason that it would tend to put the courts in the position of doling out governing funding and statutory rights based on some arbitrary baseline entitlement to ‘meaningful freedom’. I doubt that is something that would be contemplated outside of the unique labour relations context. As I have put it elsewhere:
For example, consider freedom of religion. Section 2(a) does not impose any positive duty on the government, even if my lack of resources makes an important incident of this freedom (e.g., going on pilgrimages to Mecca or building a church) all but illusory, vapid or ‘impossible to exercise’. Likewise, if you are without the means or opportunity to effectively distribute your message to an audience, or simply no one cares to listen to you, your freedom of expression may be effectively rendered ‘pointless’. The absence of state action in this case may have the effect of ‘precluding’ meaningful expression, and the futility of the enterprise may indirectly ‘discourage’ it, but this does not entitle you to a constitutional remedy on the basis of government inaction. (…)
While the Court has shied away from strictly categorizing guarantees as ‘rights’ or ‘freedoms’, there can be little doubt that the questions “can the state prevent me from building a church?” or “can the government criminalize my political message?” are categorically different than “must the government purchase a parcel of land for my church?” or “must the legislature force private broadcasters to disseminate message?” While both state action and state inaction can operate to effectively ‘preclude’ the meaningful exercise of one’s substantive freedom, depending on the circumstances, the two inquiries are and must be treated differently as a matter of constitutional law. Simply stating that the line between ‘rights’ and ‘freedoms’ can occasionally be a hazy one cannot obliterate the line entirely.
On a more practical level, a ‘right to the meaningful exercise of a freedom’ standard necessarily requires the courts to attempt the almost impossible task of determining with any degree of certainty what is required to ‘meaningfully exercise’ a freedom – at what degree of meaningfulness does the state obligation to enhance the purposes and objectives of the association, expression or religion, begin and end? Many freedoms that the state may not unjustifiably encumber, such as writing papers on constitutional interpretation in obscure legal journals, may be done in vain, but that does not normally entitle authors to constitutional remedy.
Benjamin Oliphant, “Exiting the Freedom of Association Labyrinth: Resurrecting the Parallel Liberty Standard Under 2(d) & Saving the Freedom to Strike” (2012), 70 UTFLR 36 at 68-71.
In other words, I think there is a fundamental distinction between section 15, relative – entitlements – you cannot deprive me of this benefit you give to everyone else – and the task of defining baseline entitlements to ‘meaningful freedom’, and we should not conflate them. It is one thing for the Courts to erect a wall of freedom over which the state may not intrude, but quite another to start directing the distribution of government funds and legislative protections to achieve some abstract amount of ‘freedom’. The latter strikes me as a rather massive expansion of judicial power, made deceptively easy in the labour relations context by a ready-made statutory superstructure of positive protections (i.e. the Wagner Act labour relations legislation established across the country).
The Counter Point
All of that being said, I agree that the distinctions accepted in a range of cases discussed above – between a freedom and a right, between positive and negative entitlements, between state action and inaction, and so on – are not bright line rules that can resolve hard constitutional cases on the basis of an initial characterization.
To see how the distinction can break down, consider the Government conditioning access to a public space – e.g. holding a political rally in a city park – on supporting a particular partisan viewpoint. I should think that a rather intolerable intrusion upon freedom of expression, despite the fact that a publicly-maintained public park could be characterized as access to a ‘platform’ of sorts. So the mere fact that a claim can be characterized as access to a state ‘platform’ or ‘benefit’ cannot end the analysis.
The US case law here might be instructive. The general rule applied by the US Courts is consistent with the orthodox position stated above. As recently outlined in AID v. Alliance for Open Society Intern.:
As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to decline the funds. This remains true when the objection is that a condition may affect the recipient’s exercise of its First Amendment rights. See, e.g., United States v. American Library Assn., Inc., 539 U.S. 194, 212, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003) (plurality opinion) (rejecting a claim by public libraries that conditioning funds for Internet access on the libraries’ installing filtering software violated their First Amendment rights, explaining that “[t]o the extent that libraries wish to offer unfiltered access, they are free to do so without federal assistance”); Regan v. Taxation With Representation of Wash., 461 U.S. 540, 546, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983) (dismissing “the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State” (internal quotation marks omitted)). [at 2328]
One of the cases cited for the general rule, Regan v. Taxation With Representation of Wash, closely resembles the CWP challenge, as it deals with restrictions on charitable tax status. There the Court rejected the premise that freedom of expression requires the Government to extend state subsidies for public activities, stating:
The reasoning of these decisions is simple: “although government may not place obstacles in the path of a [person’s] exercise of . . . freedom of [speech], it need not remove those not of its own creation.” Harris, 448 U. S., at 316. Although TWR does not have as much money as it wants, and thus cannot exercise its freedom of speech as much as it would like, the Constitution “does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom.” Id., at 318. (…)
TWR contends that § 501(c)(3) organizations could better advance their charitable purposes if they were permitted to engage in substantial lobbying. This may well be true. But Congress — not TWR or this Court — has the authority to determine whether the advantage the public would receive from additional lobbying by charities is worth the money the public would pay to subsidize that lobbying, and other disadvantages that might accompany that lobbying. (…) It is not irrational for Congress to decide that tax-exempt charities such as TWR should not further benefit at the expense of taxpayers at large by obtaining a further subsidy for lobbying. [at 549; emphasis added]
As in Canada, however, this is not a hard and fast rule. I don’t presume to be an expert in First Amendment jurisprudence, but it seems that they have come up with a few subsidiary doctrines to deal with borderline cases where an otherwise meritorious claim could be characterized as one to state support.
First, if the ‘benefit’ being denied is one traditionally available to all to use for the purposes of expression (as in our public parks example above), the government cannot deny it without a good reason: “the existence of a Government “subsidy,” in the form of Government-owned property, does not justify the restriction of speech in areas that have “been traditionally open to the public for expressive activity” (see United States v. Kokinda, 497 U. S. 720, 726 (1990)).
Second, in the AID case quoted above, the majority found that the Government could not make federal funding for a program contingent on engaging in expressive activities that are in some sense beyond the scope of the objectives of the program itself, and perhaps especially where the condition “requir[es] recipients to profess a specific belief”. This distinction is itself a fine one, and I think that particular case shades into a different area – the coerced expression cases. However, because the CWP case does not involve requiring the endorsement or forswearing of any particular political message, I am not sure this angle will be helpful.
Third, and most relevant to the CWP challenge, the US Supreme Court seems to be relatively comfortable with restricting the use of public funds and subsidies for certain expressive activities, but much less comfortable with blanket prohibitions tied to the group itself. As explained in Rust v. Sullivan:
In contrast, our “unconstitutional conditions” cases involve situations in which the Government has placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program. In FCC v. League of Women Voters of Cal., we invalidated a federal law providing that noncommercial television and radio stations that receive federal grants may not “engage in editorializing.” Under that law, a recipient of federal funds was “barred absolutely from all editorializing” because it “is not able to segregate its activities according to the source of its funding” and thus “has no way of limiting the use of its federal funds to all noneditorializing activities.” The effect of the law was that “a noncommercial educational station that receives only 1% of its overall income from [federal] grants is barred absolutely from all editorializing” and “barred from using even wholly private funds to finance its editorial activity.” 468 U. S., at 400. We expressly recognized, however, that were Congress to permit the recipient stations to “establish ‘affiliate’ organizations which could then use the station’s facilities to editorialize with nonfederal funds, such a statutory mechanism would plainly be valid.” Ibid. Such a scheme would permit the station “to make known its views on matters of public importance through its nonfederally funded, editorializing affiliate without losing federal grants for its noneditorializing broadcast activities.” Ibid.
Similarly, in Regan we held that Congress could, in the exercise of its spending power, reasonably refuse to subsidize the lobbying activities of tax-exempt charitable organizations by prohibiting such organizations from using tax-deductible contributions to support their lobbying efforts. In so holding, we explained that such organizations remained free “to receive deductible contributions to support … nonlobbying activit[ies].” 461 U. S., at 545. Thus, a charitable organization could create, under § 501(c)(3) of the Internal Revenue Code of 1954, 26 U. S. C. § 501(c)(3), an affiliate to conduct its nonlobbying activities using tax-deductible contributions, and at the same time establish, under § 501 (c)(4), a separate affiliate to pursue its lobbying efforts without such contributions. 461 U. S., at 544. Given that alternative, the Court concluded that “Congress has not infringed any First Amendment rights or regulated any First Amendment activity[; it] has simply chosen not to pay for [appellee’s] lobbying.” Id., at 546. We also noted that appellee “would, of course, have to ensure that the § 501(c)(3) organization did not subsidize the § 501(c)(4) organization; otherwise, public funds might be spent on an activity Congress chose not to subsidize.” Id., at 544. The condition that federal funds will be used only to further the purposes of a grant does not violate constitutional rights. “Congress could, for example, grant funds to an organization dedicated to combating teenage drug abuse, but condition the grant by providing that none of the money received from Congress should be used to lobby state legislatures.” See id., at 548. [at 197-198; emphasis added]
If I were a betting man, I would suspect the Canadian courts might find this compromise position appealing. That is, while the government could condition the receipt of funds (or tax breaks) on using that money for certain purposes and not others (i.e. political activities), it cannot then prevent the organization from using funds collected from other sources for those political purposes. Whether this is a sustainable distinction in principle or a workable idea in practice is something I will leave to others.
The challenge raised by CWP is not an easy one to resolve. However, it is a good one to test the theory of labour union exceptionalism in the context of section 2, i.e., that the courts are willing to extend relatively robust “positive” protections to labour unions to make their freedom of association more meaningful, in a way they would typically not contemplate in other contexts, either for other associations who might benefit from additional statutory protections (as most associations would), or for other persons who could benefit from government ‘enhanced’ freedom of expression or religion.
I should clarify that I do not mean to suggest that there’s any sort of ideological predisposition in favour of labour unions, at the Supreme Court level or otherwise. I suspect the discrepancy in the case law, if there is one, is better explained by path dependency and a sense of fairness than either some high constitutional principle or bias. That is, because the Wagner Act model has been extending affirmative rights to labour unions for nearly a century, and these rights were in exchange for a rather dramatic diminution of the freedom of workers (discussed here at 260 n. 28), the Court appears uncomfortable with legislation that fails to extend its baseline protections, even if there would be no independent constitutional entitlement to these particular statutory protections but for the historical fact of the Wagner Act model.
Nevertheless, in light of the relative success labour unions have had in claiming positive protections under freedom of association as compared with others in the context of the other fundamental freedoms, we should not be surprised that the CWP included a freedom of association claim in their Application, using language that conspicuously mirrors the that the Court has used in the context of extending affirmative protections to labour unions (see Notice of Application at paras 23-27).
If nothing else, this will put the courts to the task of deciding whether there are other associations beyond labour unions that require positive state protection or support to make their expressive and associational activities sufficiently “meaningful” to pass constitutional muster. This becomes a hard question once we realize that every organizations “freedom” to achieve their objectives and purposes would be enhanced in so far as they received government funding or positive statutory protection not available to everyone else.
At the very least, there is no doubt that the CWP’s expressive and associational activities will be enhanced to the extent that it would continue to benefit from beneficial tax treatment, without the corresponding responsibility to refrain from engaging in “political activities”. The question is whether the government is constitutionally obliged to support the expressive and associational activities that help the CWP advance its mission. Or, put differently, is there some principled reason why CWP’s claim to ‘meaningful’ expression and association does not require affirmative state protection of this sort, but that labour unions are entitled to certain positive protections to enhance the meaningful exercise of their freedoms? I think the CWP deserves a good answer to this question.
* First, the idea that the impugned ITA provision has an unconstitutional purpose , which the CWP’s Notice of Application asserts, might be a clever end run around all of the above, and raises other complications that I have not addressed in this post. For my purposes, I have assumed that there is some sort of rational basis for the provision that extends beyond the mere objective of repressing political expression, as such. Second, I recall there being allegations that the audits being undertaken by the previous government were politically motivated. I have no idea whether this is true and this does not appear to form the basis of CWP’s Application, and so I have assumed that not to be the case for the purposes of the post. If that were the essence of the allegation, however, it would raise constitutional issues, whether or not the impugned provision is permissible as a general rule. In particular, I think that would get us into whether the government had an unconstitutional purpose in deciding to audit particular organizations, which might involve a Doré type analysis (scrutinizing the administrative discretion exercised by the CRA), or perhaps a Little Sisters type challenge, both of which raise complications I have not addressed.