A-165-87
Positive Action Against Pornography (Appellant)
v.
Minister of National Revenue (Respondent)
INDEXED AS: POSITIVE ACTION AGAINST PORNOGRAPHY V.
M.N.R.
Court of Appeal, Urie, Mahoney and Stone JJ.—
Edmonton, January 13; Ottawa, February 15,
1988.
Charities — Appeal from denial of registration as chari
table organization — Appellant's objects including provision
of educational material to community regarding pornography
— Appeal dismissed — Common law definition of charity
applied — Presentation to public of selected items of informa
tion and opinion on pornography not "advancement of educa
tion" — No formal training of mind nor improvement of
useful branch of human knowledge — Purposes not charitable
as "otherwise beneficial to community" — Extending beyond
benefiting community to being political in nature by seeking to
sway opinion and change legislation — Trust for political
purposes not charitable — Not charitable by analogy to cases,
as advocating definition of pornography different from that
accepted in cases and in proposed legislation — Trust for
alteration of law not charitable — Act, s. 149.1(6.2) not
applicable.
Income tax — Exemptions — Charitable organizations —
Common law definition of charity — Provision of educational
material to public regarding pornography not "advancement of
education" — Purposes not "otherwise beneficial to communi
ty" as political in nature in seeking to sway opinion and
change legislation — Trust for political purposes not chari
table — Advocating definition of pornography not in accord
with what majority of Canadians and courts consider porno
graphic — Trust for alteration of law not charitable as courts
unable to judge whether proposed change for public benefit —
S. 149.1(6.2) not applicable.
This was an appeal from the respondent's decision denying
the appellant registration as a "charitable organization". The
appellant's objects included providing educational material to
the community regarding pornography. The respondent decided
that the appellant's purpose was to achieve social change rather
than "the advancement of education" in the charitable sense.
The Minister's view was that the intent of the Society was to
sway public opinion in an attempt to affect legislation. The
degree of bias and persuasion on the part of the Society
rendered its activities political, and precluded the bestowing of
charitable status. The appellant argued that its activities were
directed toward the advancement of education, or that its
purposes were otherwise beneficial to the community in a
charitable sense.
Held, the appeal should be dismissed.
It was necessary to turn to the common law for a definition
of "charity" in its legal sense and for the guiding principles
with respect to the application of that definition. Lord Mac-
naghten set out four divisions of charity in Commissioners of
Income Tax v. Pemsel, one of which was "trusts for the
advancement of education". In England, "advancement of edu
cation" has been held to embrace not only the training of the
mind, but "the improvement of a useful branch of human
knowledge and its public dissemination". Neither formal train
ing of the mind nor the improvement of a useful branch of
human knowledge was present here. There was simply the
presentation to the public of selected items of information and
opinion on the subject of pornography. That was not
educational.
The law under the fourth head of charity set out in the
Pemsel case ("trust for other purposes beneficial to the com
munity") is somewhat elastic, and the courts are willing to
recognize any relevant change in societal conditions or other
special circumstances. Nevertheless, to be charitable, a purpose
or activity must be so in a way that the law regards as
charitable, i.e. that intended by Lord Macnaghten in the
Pemsel case. The appellant argued that the public would
benefit from the freest and fullest public discussion of the
issues, which it was promoting. But the purposes and activities
of the appellant were not charitable as they went beyond being
beneficial to the community in a legal sense. The appellant was
not neutral on the issue of pornography, but favoured greater
state control, instead of maintenance of the status quo or
relaxation of existing legal constraints. The appellant's primary
purposes were "political" in that it sought to change the law
and public attitudes toward pornography. It was stated in
McGovern v. Attorney-General that a trust for political pur
poses, including trusts the purpose of which is to procure
changes in the laws of the country or to procure a reversal of
government policy, is not for the public benefit in the manner
which the law regards as charitable. The appellant's purposes
fell within this concept.
The final argument was that the appellant's purposes were
charitable by analogy to certain cases as any legislative change
advocated would be in harmony with what the Canadian public
and the courts perceive as pornographic i.e. material depicting
violence and degradation. This argument could not prevail. The
definition of "pornography" advocated by the appellant went
well beyond violence in the physical sense discussed in the
cases, and embraced psychological and/or emotional harm. The
definition of "pornography" in the present Bill is limited to
sexually violent conduct and any conduct causing physical pain.
Furthermore, a trust for the alteration of the law is not
charitable as the Court has no way of judging whether a
proposed change in the law will or will not be for the public
benefit (Bowman v. Secular Society, [1917] A. C. 406 (H.L.)).
Subsection 149.1(6.2) of the Income Tax Act, which applies
to an organization which devotes substantially all of its
resources to charitable activities and part of its resources to
political activities which are incidental to its charitable activi
ties, did not apply. The appellant's activities were primarily
political.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Rules, C.R.C., c. 663, R. 1312.
Income Tax Act, S.C. 1970-71-72, c. 63, s. 149.1(1)(b)
(as enacted by S.C. 1976-77, c. 4, s. 60; S.C. 1984, c.
45, s. 57), (6.2) (as enacted by S.C. 1986, c. 6, s. 85).
Societies Act, R.S.A. 1980, c. S-18.
CASES JUDICIALLY CONSIDERED
APPLIED:
Native Communications Society of B.C. v. Canada
(M.N.R.), [1986] 3 F.C. 471 (C.A.); McGovern v. Attor-
ney-General, [1982] 2 W.L.R. 222 (Ch. D.); Bowman v.
Secular Society, [1917] A. C. 406 (H.L.).
CONSIDERED:
Incorporated Council of Law Reporting for England and
Wales v. Attorney-General, [1972] Ch. 73 (C.A.).
REFERRED TO:
Commissioners of Income Tax v. Pemsel, [18911 A. C.
531 (H.L.); Morice v. Durham (Bishop of) (1805), 10
Ves. Jun. 522 (H.C. of Ch.); R. v. Red Hot Video Ltd.
(1985), 18 C.C.C. (3d) I (B.C.C.A.); R. v. Wagner
(1985), 36 Alta. L.R. (2d) 301 (Q.B.); affd. (1986), 43
Alta. L.R. (2d) 204; Anglo-Swedish Society v. Commis
sioners of Inland Revenue (1931), 16 T.C. 34 (K.B.); In
re Strakosch, decd., Temperley v. Attorney-General,
[1949] Ch. 529 (C.A.); Buxton and Others v. Public
Trustee and Others (1962), 41 T.C. 235 (Ch. D.); In re
Koeppler Will Trusts, [1986] Ch. 423 (C.A.).
COUNSEL:
Charles B. Davison for appellant.
Robert McMechan for respondent.
SOLICITORS:
Charles B. Davison, Edmonton, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
STONE J.: This appeal is from the respondent's
decision dated February 24, 1987 denying the
appellant registration as a "charitable organiza
tion" pursuant to the provisions of paragraph
149.1(1)(b) of the Income Tax Act, R.S.C. 1952,
c. 148 as amended by S.C. 1970-71-72, c. 63; S.C.
1976-77, c. 4, s. 60; S.C. 1984, c. 45, s. 57 (the
"Act"). The relevant provisions of that paragraph
read:
149.1 (1) In this section, section 172 and Part V,
(b) "charitable organization" means an organization, wheth
er or not incorporated,
(i) all the resources of which are devoted to charitable
activities carried on by the organization itself,
(ii) no part of the income of which is payable to, or is
otherwise available for, the personal benefit of any proprie
tor, member, shareholder, trustee or settlor thereof,
The appellant was incorporated under the
Societies Act, R.S.A. 1980, c. S-18 by Certificate
of Incorporation dated August 20, 1985, with the
following objects:
2. The objects of the society are—
(a) To provide for the recreation of the members and to
promote and afford opportunity for friendly and social
activities.
(b) To acquire lands, by purchase or otherwise, erect or
otherwise provide a building or buildings for social and
community purposes.
(d) To provide a meeting place for the consideration and
discussion of questions affecting the interests of the
community.
(e) To carry on a literary and debating club for the discus
sion of topics of general interest, and to encourage the
practice of public speaking among its members.
(f) To procure the delivery of lectures on social, educational,
political, economic and other subjects, and to give and
arrange musical and dramatic entertainments.
(g) To establish and maintain a library and reading room.
(h) To provide all necessary equipment and furniture for
carrying on its various objects.
(i) To provide a centre and suitable meeting place for the
various activities of the community.
(k) To sell, manage, lease, mortgage, dispose of, or otherwise
deal with the property of the society.
(I) To provide educational material to the community
regarding the issue.
In October 1985, an application for registration
was submitted to the respondent who, in his reply
of January 27, 1986, expressed two concerns. The
first was that all of the objects in clause 2 with the
exception of subclause (1) were of "a diverse
general nature" bearing "little if any relationship
to what would appear to be the actual purpose of
this organization", and that some of the them "are
not necessarily charitable within the legally estab
lished concept of the term". In this connection, the
respondent also indicated he was unable to further
consider the application until clause 2 was formal
ly amended, except for subclauses (b) and (k)
which were viewed as "merely powers or enabling
clauses" which could stand unamended. This
request, however, appears not to have been further
pursued.
The second reservation concerned a statement
which accompanied the application, outlining the
appellant's activities as follows (Case Material,
page 22):
1) to develop and distribute educational material concerning
the issue of pornography,
2) to initiate and promote projects that develop self-esteem,
3) to respond to requests for information and recommendations
from the federal, provincial, municipal governments, education
al institutes, community organizations and the media.
The respondent expressed concern that these
activities "in furtherance of its current object
clause (1) will be exclusively educational in the
charitable sense" and, accordingly, requested
details of the appellant's current and proposed
educational and other activities in order to better
assess the application with reference to some of the
material identified in, but not accompanying the
statement of activities. In its reply of March 20,
1986 the appellant submitted ten separate items of
information, including a comprehensive Informa
tion Kit compiled by the appellant for distribution
to the public upon request. This kit contains a
good deal of material bearing upon the subject of
pornography from various points of view and ends
with a five-page document entitled "What can you
do?" It will be necessary to make further reference
to its content and significance for this case in due
course.
By letter of June 25, 1986, the respondent
indicated on the basis of established principles of
the common law governing charity, that it was
"unlikely" the appellant would qualify for regis
tration. The view was also expressed that the
appellant's primary purpose as disclosed in the
information submitted, was to provide educational
material to the community regarding the issue of
pornography and that this purpose could not be
viewed as for "the advancement of education" in
the charitable sense. In this context the respondent
wrote (Case Material, pages 119-120):
In our view, the primary purpose of the Positive Action Against
Pornography (Society) is not to educate in the charitable sense
but to achieve social change. It appears that through its various
activities the intent of the Society is to sway public opinion in
support of an issue which must ultimately result in an attempt
to affect legislation. As previously stated, when the primary
purpose of an organization is to influence general opinion in
favour of one view-point on a controversial issue, the courts
have held that such an organization is not formed for exclusive
ly charitable purposes. We would add that it is not enough that
the approach employed by an organization to achieve its goals
is by way of discussion, workshops, and information to the
public; the purpose to which such activities are directed must
itself be clearly and exclusively charitable if the organization is
to qualify for registration under the provisions of the Income
Tax Act. We are unable to conclude from the information
provided that the end to which the objectives of the Society are
directed are exclusively charitable.
A good deal of additional material was submit
ted by the appellant in its letter of July 30, 1986 in
response to an invitation for further written
representations. However, by letter of September
10, 1986 the respondent rejected the application
outright, on the basis that it could not be con
sidered for the advancement of education in the
charitable sense. He wrote (Case Material, page
184):
In our view, the Society does not restrict its role to that of an
educational charity as it is not concerned with education for its
sake but is, rather, concerned with creating and stimulating
awareness of the social problem created by pornography. In
other words, it is our view that the imparting of knowledge
contemplated by the applicant is inextricably mixed with per
suasion to such an extent that it is a non-educational activity.
While it is recognized that there is inevitably some bias in all
education and that an element of persuasion is common, it is
the degree of persuasion that precludes the bestowing of chari
table status.
The basis for rejecting the application was further
elaborated in the same letter (Case Material,
pages 185-186):
Consequently, it is our view that the primary purpose of the
Society is not to educate in the charitable sense but to achieve
social change. Through its various activities, as evidenced by
the above-noted statements (which is not all exhaustive) we
remain convinced that the intent of the Society is to sway
public opinion in support of minimizing and possibly eliminat
ing pornography from our society.
The degree of bias and persuasion present in the material
submitted by the Society clearly places its ultimate goals within
the category of political activities in the broad sense of that
term. An organization operated for primarily political purposes
would not be considered charitable at law. We do not suggest
that the applicant, itself, is agitating for a change in legislation
affecting the issue of pornography. An organization need not go
that far to be categorized as political in nature.
Further, although the Society included in its Information Kit
essays for and against legislation, it remains our view that the
material submitted is permeated with bias and persuasion to
the extent that we are unable to conclude that the end to which
the goals of the Society are directed are exclusively charitable.
It is not enough that the approach employed by an organization
is by way of discussion, workshops and information to the
public; the purpose to which such activities are directed must
itself be clearly and exclusively charitable if the organization is
to qualify for charitable registration.
It should be noted that our decision in this matter is not related
to the issue of whether the goals of the applicant are morally or
socially right or wrong. Our concern is simply to ensure that
the tax benefits of registration are made available only to those
organizations which operate within the legal parameters of
charity.
Notwithstanding this decision, the application
was further reviewed in the light of still more
representations. However, by his letter of February
24, 1987 the respondent confirmed his earlier deci
sion, as follows (Case Material, page 207):
Notwithstanding that the approach employed by the organiza
tion to achieve its goals is by way of dissemination of informa
tion, it is our view that the Society's emphasis is on decrying
pornography's value and on building an anti-pornography atti-
tude of mind. I regret to advise you that we remain of the view
expressed in our previous letters that the Society's resources are
devoted in large measure to promoting a change in the public's
attitude and treatment of pornography.
The appellant makes two basic attacks on the
decision. First, it says that the material supports
its case that its activities are directed toward "the
advancement of education" and, secondly, that the
respondent ought to have considered whether its
purposes are otherwise beneficial to the commu
nity in a charitable sense. In order to properly
assess the relative merits of these attacks, they
must be viewed in the light of applicable common
law principles, the definition of the word "charity"
found in the Act furnishing little or no assistance
in answering the questions we are called upon to
answer on this appeal. Paragraph 149.1(1)(d)
merely defines that word as meaning "a charitable
organization or charitable foundation", both of
which terms are in turn defined in paragraphs (a)
and (b) respectively of that same subsection but
not in any helpful way. Instead, the Act appears
clearly to envisage a resort to the common law for
a definition of "charity" in its legal sense as well
as for the principles that should guide us in aplying
that definition. In Native Communications Society
of B.C. v. Canada (M.N.R.), [1986] 3 F.C. 471
(C.A.), this Court made reference to the common
law definiton of charity as follows, at pages
478-479:
The starting point for a discussion of what may or may not
constitute a good charitable purpose is the decision of the
House of Lords in the case of Commissioners of Income Tax v.
Pemsel, [1891] A.C. 531 and, in particular, the legal meaning
of the word "charity" given by Lord Macnaghten, at page 583
of the report:
How far then, it may be asked, does the popular meaning of
the word "charity" correspond with its legal meaning?
"Charity" in its legal sense comprises four principal divi
sions: trusts for the relief of poverty; trusts for the advance
ment of education; trusts for the advancement of religion;
and trusts for other purposes beneficial to the community,
not falling under any of the preceding heads.
That definition has been applied time after time in this country
and has been approved by the Supreme Court of Canada (see
Guaranty Trust Company of Canada v. Minister of National
Revenue, [1967] S.C.R. 133, at page 141). A purpose, to be a
good "charitable" one, must possess a charitable nature within
"the spirit and intendment" of the preamble to the Statute of
Elizabeth entitled "An Acte to redresse the Misemployment of
Landes Goodes and Stockes of Money heretofore given to
Charitable Uses". That statute was enacted in England in 1601
during the reign of Elizabeth I as 43 Eliz. I, c. 4. Nowadays, it
is generally known to this branch of the law simply as the
"Statute of Elizabeth". It is unnecessary to recite the whole of
that preamble and perhaps also undesirable to attempt its
reproduction in the original form and style. I prefer instead to
do as Slade J. did in McGovern v. Attorney-General, [1982]
Ch. 321, at page 332 where he put the statute's list of chari
table objects in modern English as follows:
... the relief of aged, impotent, and poor people ... mainte
nance of sick and maimed soldiers and mariners, schools of
learning, free schools, and scholars in universities ... repair
of bridges, ports, havens, causeways, churches, seabanks and
highways ... education and preferment of orphans ... relief,
stock or maintenance for houses of correction ... marriages
of poor maids ... supportation, aid and help of young
tradesmen, handicraftsmen and persons decayed ... relief or
redemption of prisoners or captives, and for aid or ease of
any poor inhabitants concerning payments of fifteens, setting
out of soldiers and other taxes.
With this in mind, I turn now to consider the
argument that the appellant is constituted and
operated for "the advancement of education", con
fining myself to the precise issue so as not to
prejudice any trust that might otherwise meet the
law's requirements. I should say parenthetically
that nothing in the constituting document tells us
what is "the issue" that is mentioned in clause
2(1), though it is undoubtedly pornography.
Indeed, that much may be readily inferred from
the appellant's corporate name which makes clear
that the organization is at any rate "against por
nography". So far as I am aware, there has never
been in this country a case deciding that purposes
and activities of the kind here under review are
charitable. In England, advancement of education
has been fairly broadly viewed, being held to
embrace not only the training of the mind as such
but, as Buckley L.J. said in Incorporated Council
of Law Reporting for England and Wales v.
Attorney-General, [1972] Ch. 73 (C.A.), at page
102, "the improvement of a useful branch of
human knowledge and its public dissemination". I
am quite unable to find in the record before us
anything pointing to "advancement of education"
in its legal sense, for neither formal training of the
mind nor the improvement of a useful branch of
human knowledge is here present. There is simply
the presentation to the public of selected items of
information and opinion on the subject of pornog
raphy. That, in my view, cannot be regarded as
educational in the sense understood by this branch
of the law.
I move then to consider the second attack on the
decision. It is here said that the appellant qualifies
for registration under Lord Macnaghten's fourth
head of charity and, moreover, that the respondent
utterly failed to address that possibility. I can deal
with this latter suggestion shortly. Though,
undoubtedly, the ground for registration most
relied upon was "advancement of education", the
respondent appears also to have taken account of
the possible application of this fouth head. In his
letter of June 25, 1986, for example, the respond
ent referred broadly to common law principles
governing charity including "other purposes
beneficial to the community as a whole in a way
which the law regards as charitable", and then
went on to invite "further written representations
as to why this organization should be granted .. .
registration" under the Act. Though the debate
continued to centre on the educational head, this is
hardly a reason for condemning the respondent in
not expressly dealing with the fourth head of
charity, especially as the appellant itself did not
see fit to pursue it. I think the only proper way of
aproaching the question is on the basis that this
head was in fact considered and was rejected
although, in the circumstances, not expressly.
In discussing this head of charity, I respectfully
refer at the outset to the following views expressed
on behalf of this Court in the Native Communica
tions Society case, at pages 479-480:
A review of decided cases suggests that at least the following
propositions may be stated as necessary preliminaries to a
determination whether a particular purpose can be regarded as
a charitable one falling under the fourth head found in Lord
Macnaghten's classification:
(a) the purpose must be beneficial to the community in a way
which the law regards as charitable by coming within the
"spirit and intendment", of the preamble to the Statute of
Elizabeth if not within its letter. (National Anti-Vivisection
Society v. Inland Revenue Commissioners, [1948] A.C. 31
(H.L.), at pages 63-64; In re Strakosch, decd. Temperley v.
Attorney-General, [1949] Ch. 529 (C.A.), at pages 537-538),
and
(b) whether a purpose would or may operate for the public
benefit is to be answered by the court on the basis of the record
before it and in exercise of its equitable jurisdiction in matters
of charity (National Anti-Vivisection Society v. Inland Reve
nue Commissioners (supra), at pages 44-45, 63). '
It was also noted in that case, and it bears repeti
tion here as well, that the law of charity under this
broad head especially is somewhat elastic, the
courts being willing to recognize any relevant
change in societal conditions or other special cir
cumstance. Nevertheless, to be charitable, a pur
pose or activity must be so in a way that the law
regards as charitable. There are, no doubt, many
purposes and activities that are beneficial to the
community in a loose or popular sense though not
in the legal sense i.e. that intended by Lord Mac-
naghten in Commissioners of Income Tax v.
Pemsel, [1891] A. C. 531 (H.L.), or as argued for
by Sir Samuel Romilly in Morice v. Durham
(Bishop of) (1805), 10 Ves. Jun. 522 (H.C. of
Ch.), at page 532, namely, "objects of general
public utility".
The appellant submits that the subject of por
nography has engaged the attention of Canadian
society for some time now and particularly in the
past few years, Parliament itself having seen fit,
for example, to establish a Special Committee on
Pornography and Prostitution whose report is
referred to in the material before us. That the
subject has also engaged the attention of the courts
of this country faced with enforcing the criminal
law, is illustrated by a recent decision of the
British Columbia Court of Appeal in R. v. Red
Hot Video Ltd. (1985), 18 C.C.C. (3d) 1. And, as
counsel for the respondent points out, a Bill is now
pending before Parliament (copy of which he
handed to the Court during argument) that seeks
to amend the law on pornography by introducing a
somewhat less restrictive definition to that which
the appellant has proposed.
The essential points which counsel for the appel
lant seeks to make in oral argument as well as in
paragraph 27 of his memorandum, is that the
public "stands to benefit from the freest and full
est possible public analysis, examination, discus
sion and review of the issues presented and options
available" and that, as the appellant's actions go to
facilitate informed discussion and debate on the
subject, they ought to be seen as charitable. An
alternative argument is that these actions are
charitable in any event because they are consistent
with a widely accepted view in Canadian society
that material condoning violence toward, and the
degradation of, women and children is indeed por
nographic in a criminal law sense, reference being
made to the Red Hot Video case and to a decision
of the Alberta Court of Queen's Bench in R. v.
Wagner (1985), 36 Alta. L.R. (2d) 301, at pages
315-316, which was upheld on appeal ((1986), 43
Alta. L.R. (2d) 204). Counsel argues that ridding
society of this kind of material or at least control
ling and limiting its publication, circulation and
use, can be considered as falling within the "spirit
and intendment" of the preamble to the Statute of
Elizabeth or, at all events, as analogous to objects
already found by the courts to be charitable under
Lord Macnaghten's fourth head of charity.
As for the first of these arguments, I must agree
with the respondent that the purposes and activi
ties of the appellant go well beyond being benefi
cial to the community in a legal sense. Try as I
may, I am quite unable to see how the material in
the Information Kit or the other supporting docu
mentation accords with the appellant's claim of
neutrality toward this admittedly divisive public
issue. If anything, the material seems clearly to
prove the contrary, being weighted very much in
favour of greater state control rather than either
maintenance of the status quo or relaxation of
existing legal constraints. The respondent points
out, quite fairly, that really only one piece of this
material goes so far as to express an "anti-legisla
tion" point of view, but that it simply counsels
against reform by legislative action (Case Ma
terial, page 90 to page 95). The remaining ma
terial appears to advocate a rather strong anti-por
nography bias, based no doubt in part on a deeply
felt concern for the sort of violence and degrada
tion I have already mentioned (see e.g. Case Ma
terial, at pages 40 and 41). That some of it is
"political" in the broad sense which that word
carries in this branch of the law, is also apparent.
For example, it is supportive of "influencing legis
lators" (page 45), "improving the definition of
obscenity in the criminal code" and "establishing
regulations" on pornography (page 53), lobbying
"local politicians" and the "federal government"
to bring about change in the law (page 61) and,
generally, of changing public "attitudes and
beliefs" toward pornography (page 107). It is quite
true that quite a lot of this material was not
produced by the appellant, but its inclusion in the
Information Kit or the other documentation may
suggest that the views it contains are in harmony
with the appellant's own objectives. Significantly,
that the appellant seeks legislative change of its
own liking becomes even more apparent from the
revisions it proposed to the Government of Canada
on the "pornography" definition contained in the
report of the Special Committee on Pornography
and Prostitution (Case Material, page 32).
The task of the Court under this head is a
relatively narrow one. We are not called upon to
decide what is beneficial to the community in a
loose sense, but only what is beneficial in a way
the law regards as charitable. I am satisfied from
an examination of the material and of the decided
cases that the appellant's primary purposes or
activities cannot be classed as beneficial to the
community in this latter sense but rather as politi
cal in the sense understood by this branch of the
law. It must follow, therefore, that it fails eligibili
ty as a "charitable organization". I shall refer to
one of the recent cases which has discussed that
sense of the word. In McGovern v. Attorney-Gen
eral, [1982] 2 W.L.R. 222 (Ch. D.), after examin
ing the previous authorities on the point, Slade J.
summed up the current position as follows, at
pages 239-240:
... I therefore summarise my conclusions in relation to trusts
for political purposes as follows. (1) Even if it otherwise
appears to fall within the spirit and intendment of the preamble
to the Statute of Elizabeth, a trust for political purposes failing
within the spirit of Lord Parker's pronouncement in Bowman's
case can never be regarded as being for the public benefit in the
manner which the law regards as charitable. (2) Trusts for
political purposes falling within the spirit of this pronounce
ment include, inter alia, trusts of which a direct and principal
purpose is either (i) to further the interests of a particular
political party; or (ii) to procure changes in the laws of this
country; or (iii) to procure changes in the laws of a foreign
country; or (iv) to procure a reversal of government policy or of
particular decisions of governmental authorities in this country;
or (v) to procure a reversal of government policy or of particu
lar decisions of governmental authorities in a foreign country.
This categorisation is not intended to be an exhaustive one,
but I think it will suffice for the purposes of this judgment; I
would further emphasise that it is directed to trusts of which
the purposes are political. As will appéar later, the mere fact
that trustees may be at liberty to employ political means in
furthering the non-political purposes of a trust does not neces
sarily render it non-charitable.' [Emphasis added in (ii) and
(iv).]
A review of the material satisfies me that the
appellant's purposes and activities fall within this
concept as discussed in the decided cases and,
accordingly, that they cannot be classified as
charitable under Lord Macnaghten's fourth head
of charity.
' It appears that this concept also extends to espousal of a
political cause or aspiration. Anglo-Swedish Society v. Com
missioners of Inland Revenue (1931), 16 T.C. 34 (K.B.); In re
Strakosch, decd., Temperley v. Attorney-General, [1949] Ch.
529 (C.A.); and Buxton and Others v. Public Trustee and
Others (1962), 41 T.C. 235 (Ch. D.). Compare, In re Koeppler
Will Trusts, [1986] Ch. 423 (C.A.), per Slade L.J., at p. 432.
This brings me to consider the alternative argu
ment advanced under this head of charity. It is
that by analogy to certain decided cases we should
hold the appellant's purposes and activities to be
charitable, seeing that any legislative change that
may be advocated is in harmony with what the
Canadian public and the courts perceive as porno
graphic i.e. material depicting violence and degra
dation. I do not see how this argument can prevail.
In the first place, the material shows that the legal
"definition" of pornography advocated by the
appellant goes well beyond violence in the physical
sense discussed in the cases, but would also
embrace emotional and/or psychological harm
(Case Material, page 32). Indeed, the violence
that would be caught by the definition of pornog
raphy proposed by the Bill now pending in Parlia
ment, appears limited to "sexually violent conduct,
including assault and any conduct in which physi
cal pain is inflicted or apparently inflicted ...."
Furthermore, for the very good reasons explained
by Lord Parker in Bowman v. Secular Society,
[1917] A. C. 406 (H.L.), a trust for alteration of
the law has never been accepted as charitable. At
page 442, he said:
The abolition of religious tests, the disestablishment of the
Church, the secularization of education, the alteration of the
law touching religion or marriage, or the observation of the
Sabbath, are purely political objects. Equity has always refused
to recognize such objects as charitable. It is true that a gift to
an association formed for their attainment may, if the associa
tion be unincorporated, be upheld as an absolute gift to its
members, or, if the association be incorporated, as an absolute
gift to the corporate body; but a trust for the attainment of
political objects has always been held invalid, not because it is
illegal, for every one is at liberty to advocate or promote by any
lawful means a change in the law, but because the Court has no
means of judging whether a proposed change in the law will or
will not be for the public benefit, and therefore cannot say that
a gift to secure the change is a charitable gift. The same
considerations apply when there is a trust for the publication of
a book. The Court will examine the book, and if its objects be
charitable in the legal sense it will give effect to the trust as a
good charity: Thornton v. Howe (31 Beay. 14); but if its object
be political it will refuse to enforce the trust: De Themmines v.
De Bonneval ((1828) 5 Russ. 288). If, therefore, there be a
trust in the present case it is clearly invalid. The fact, if it be
the fact, that one or other of the objects specified in the
society's memorandum is charitable would make no difference.
There would be no means of discriminating what portion of the
gift was intended for a charitable and what portion for a
political purpose, and the uncertainty in this respect would be
fatal.
On this same subject, the appellant also relies on
the provisions of subsection 149.1(6.2) [as enacted
by S.C. 1986, c. 6, s. 85] of the Act which was
adopted in 1986 but made retroactive to 1985. It
reads:
149.1 ...
(6.2) For the purposes of paragraph (1)(b), where an organi
zation devotes substantially all of its resources to charitable
activities carried on by it and
(a) it devotes part of its resources to political activities,
(b) such political activities are ancillary and incidental to its
charitable activities, and
(c) such political activities do not include the direct or
indirect support of, or opposition to, any political party or
candidate for public office,
the organization shall be considered to be devoting that part of
its resources to charitable activities carried on by it.
In my view, however, this subsection is of no
assistance as the appellant's purposes and activities
are not "ancillary and incidental" but, rather, are
primarily of a political nature and therefore
non-charitable.
I would dismiss this appeal but, in the circum
stances, without costs, there appearing no "special
reasons" required by Rule 1312 of the Federal
Court Rules [C.R.C., c. 663] for making a differ
ent order.
URIE J.: I agree.
MAHONEY J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.