Dying With Dignity

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What Happened

In 2011, the charitable organization Dying With Dignity Canada (DWD) partnered with the British Columbia Civil Liberties Association (BCCLA) to support physician-assisted death before the courts as a human rights issue in the landmark case of Carter v. Canada.

The Conservative government of Canada, however, firmly opposed amendments to the section of the Criminal Code that prohibit assisted suicide.1

In 2013, a few months after the federal government injected new funds into a special project to audit Canadian charities, DWD learned that it would undergo a political activities audit. In 2015, the Charities Directorate of the Canada Revenue Agency (CRA) advised that DWD’s charitable status had been “annulled.”

After more than 30 years in operation as a charity, DWD was deemed never to have had charitable status. It joined a long list of progressive charities in Canada that have ideological differences with the federal government of Canada and that have experienced enhanced regulatory scrutiny by the CRA.


Background

Founded in 1982 as a registered charity under the Income Tax Act, DWD is devoted to promoting choice and dignity at the end of life. It educates about end-of-life options, the importance of advance care planning, patient rights, and advocacy for patients whose rights are abused. It also provides information about the choice-in-dying movement and the reasons why appropriately regulated medically assisted dying should be legalized in Canada.2 Its programs include workshops and presentations, newsletters, a website, and advance care planning resource kits.

In the 1993 Rodriguez, case the Supreme Court of Canada decided that assisted suicide was illegal, even in the case of terminally ill patients enduring great suffering.3

In a regular 2005 audit, the DWD was given a clean bill of health.4 In 2011, the organization was again registered as a charity by the CRA.

In 2011, BCCLA filed a lawsuit in the Carter case, challenging the laws that criminalize doctors for helping competent, seriously ill individuals who wish to hasten death. DWD decided to partner with the BCCLA.5

In the 2012 budget, the Harper government announced a crackdown on registered charities, and subsequently allocated $13 million over several years to heightened scrutiny of charities engaged in what the Conservative government appears to consider excessive political advocacy.6

In 2013, the British Columbia Court of Appeal upheld the law on assisted suicide in the Carter case.7 However, it was clear that the case was headed straight to the Supreme Court of Canada and that Rodriguez might be overturned. Many countries had adopted laws in favour of physician-assisted death and Canadian public support was increasingly in favour of assisted suicide in end-of-life situations.

At the end of 2013, following the Court of Appeal decision, DWD received an ominous phone call from the CRA Charities Directorate – DWD was to be audited.8

On 4 July 2014, DWD was granted intervener status by the Supreme Court of Canada in the Carter case9

The audit

DWD received an extensive list of audit requirements and documents to be produced.10 It included demands for financial information, a breakdown of staff positions, copies of all published or broadcast statements (including their recipients), and schedules of speaking engagements.

The audit took place in January 2014 in DWD’s offices and lasted the better part of a week. At the conclusion of the audit, the organization was told it would be notified of the results within six weeks to two months.

DWD was under the impression throughout the audit period (from the initial call in 2013) that if it did not fully cooperate with the CRA, its charitable status would be revoked, putting the organization entirely out of business. 11 The threat and the reality of revocation are considered significant tools for silencing dissent.

After four months and no news, DWD followed up with the CRA. The CRA informed DWD that it would no longer be classified as a charity by the CRA. Voices-Voix obtained a copy of the letter dated January 16 2015, in which DWD received formal notice that its status as a charity was to be annulled as of mid-February; this was the same month that the Supreme Court of Canada would side against the government in Carter, striking down the criminal prohibition on assisted suicide.

The CRA claimed that it had erred when it initially granted DWD’s charitable status in 1981, and again when that status was renewed in 2011.12

A victory in the Carter case

In February 2015, in a unanimous decision, the Supreme Court of Canada adopted DWD’s “dying with dignity” principle, recognizing the fundamental human rights that underpin decisions about end-of-life.

The federal government was given one year to draft new legislation in accordance with the ruling.13

Therefore, the year 2015 is a crucial time for all parties and intervenors in the case to ensure that the government enacts legislation that is consistent with fundamental human rights principles set out by the Supreme Court of Canada.

Dying with dignity: a human rights issue …

In Carter v Canada, the Supreme Court of Canada decided that the blanket ban on assisted suicide violated section 7 of the Canadian Charter of Rights and Freedoms, namely the right to life, liberty, and security of the person and not to be deprived thereof except in accordance with principles of fundamental justice.

The Court found that the ban had violated the right to life, because those wishing to end their lives before their illness took control of their faculties often did so prematurely when they were still able to end their lives themselves.

Regarding liberty, the Court wrote that “An individual’s response to a grievous and irremediable medical condition is a matter critical to their dignity and autonomy…. This interferes with their ability to make decisions concerning their bodily integrity and medical care and thus trenches on liberty.”14

The ban also violated security of the person by forcing people to choose between premature death and intolerable suffering.

and a charitable purpose too

Given the human rights dimension to the work of DWD, it is clear that the CRA’s guidelines regarding the advancement of human rights should have applied. The CRA Charities Directorate guidelines recognize that “human rights” encompass Charter rights.15 According to the guidelines,

upholding human rights refers to activities that seek to encourage, support, and defend human rights that have been secured by law, both in Canada and abroad. Upholding the administration and enforcement of the law is a well-recognized charitable purpose. However, attempting to change the law in Canada or another country is not a charitable purpose.16

“Attempting to change the law” qualifies as a “political activity”, but it is permitted provided that it comprises less than 10% of an organization’s activities.

CRA errors

Charitable status annulments are rare. The CRA had granted status to DWD in 1982 and had previously audited the organization in 2005. In 2011, the CRA re-registered DWD. The Charities Directorate decided to go the annulment route in recognition of these “errors”. The other option would have been revocation, a more serious option that entails seizing all the organization’s assets. Annulment, on the other hand, allows the organization to retain is assets.

As a result of the annulment, DWD can no longer issue tax receipts for donations. This occurred at a time when the organization was to play a key role in ensuring that the spirit of the Court’s decision in Carter is reflected in the government’s legislation; such activity would not be about changing the law, but rather about ensuring compliance with the law.17

Differential treatment and politicised audits

According to the organization’s CEO Wanda Morris, CRA rebuked DWD for using inappropriate “emotional” materials to help educate regarding end-of-life options.18

However, emotional appeals are central to fundraising for many charitable causes, from hospitals to human rights, and from environmental to anti-poverty work. Indeed, they are important to communicating a strong message.

According to Morris, the CRA regulations regarding “emotional” and “political” materials should be applied evenly to all charities. However, she believes that the vagueness and broadness of the regulations allows for selective application. There is no clear CRA guidance regarding the tone of communications that are related or ancillary to an organization’s mandate. Morris suggests that these “rules” are not only applied unevenly, they are also inherently unfair. While DWD was told that it cannot support physician-assisted suicide, religious groups advocating for the opposite position (consistent with the Conservative government’s position), appear to have been left alone.19

While DWD’s right to die advocacy is considered too “political” for charitable designation, a search of the CRA’s registered charity listing points to over 50 registered charities who take a socially conservative stance on advocacy issues pertaining to “pro life” and “right to life.”20 Additionally, Morris points out that though DWD’s use of “emotional materials” was considered inappropriate by the CRA, most of these right-leaning charities employ overtly emotional tactics on their websites. For instance, many of these charities produce “fact sheets” as part of their advocacy work, including emotionally charged, non-factual anecdotes, such as detailing the unavoidable and permanent regret and guilt that a woman will allegedly experience after an abortion.21

These sorts of materials obviously fall within the gamut of selectively biased emotional information for which DWD’s status was purportedly annelled; however, they remain unsanctioned by the CRA. They also run contrary to the CRA’s own guidelines – invoked as a justification for the annulment of DWD’s charitable status – which clearly states that, “to be educational in the charitable sense, organizations must not rely on incomplete information or on an appeal to emotions.”22 Regardless of one’s position about the exclusion of emotion from educational materials, if the CRA decides to have this rule in place, it must ensure that it is enforced equally for all charities.23

In its letter to the DWD, the CRA wrote:

It is our position the organization's primary focus remains on advocating for alternatives to preserving human life and selectively informing the public in support of its political purpose to expand choice in dying... [Charitable groups must not] engage in pressure tactics on governments such as swaying public opinion, promoting an attitude of mind, creating a climate of public opinion or exercising moral pressure [and] it is our opinion that the Organization was, in fact, registered in error and, as a result, its registration under the [Income Tax Act] should be annulled. 24

While the spokeswoman for Revenue Minister Kerry-Lynne Findlay would not comment specifically on DWD’s case, she has stressed that all CRA audits are at arm’s length and do not constitute political interference.25

NDP Revenue critic Murray Rankin countered that there is a link between the charities targeted for intense audit scrutiny and charities that oppose the current conservative government:

"We need to remember that if those groups are in sync with the Conservatives -- I'm thinking of the Fraser Institute and the like -- they seem to be fine…If they are left-leaning or human rights or environmental or anti-poverty -- and now this group Dying With Dignity -- whose values aren't aligned with the Conservatives, those are the ones that appear to be most vulnerable."26

The Broadbent Institute, Voices-Voix and the media have all written about the Conservative government targeting charities with dissenting views or positions.27 The CRA has also audited environmental groups such as Tides Canada, Sierra Club of Canada, The David Suzuki Foundation, and Environmental Defence.28 Each of these audits was connected with complaints filed by Ethical Oil, a not-for-profit organization with well-documented links to the Conservative Party of Canada.29 Other left-leaning charities that have recently been audited by the CRA include: Amnesty International Canada, The Ecology Action Centre, and the Canadian Centre for Policy Alternatives.30 Conversely, right-leaning charities have not been subject to audit on this scale.31

Moving Forward

DWD’s board of directors voted not to challenge the CRA decision. Instead, it committed to a “crucial next phase in our organization’s history.”32 Part of this decision was a function of the risk that an appeal could trigger a punitive decision to revoke charitable status.33 The Canadian Council of Churches noted the tangible threat and fear of revocation in a public letter to Prime Minister Harper.34

With the ban on physician-assisted suicide set to expire 5 February 2016, the organization has said that it “will continue [its] work educating the public about compassion and choice at end of life”.35 In a press release, DWD stated that it is now “free to advocate forcefully on behalf of the 84 per cent of Canadians who support the right to a peaceful death.”36

Morris, says that DWD Canada has consulted with major stakeholders and that it can survive the loss of its charitable tax status. "There's a lot of people that support us… one of our challenges has been to let people know that we're here. So I guess you could say the silver lining on this is a lot more people are going to know about us as a result of this story."37

DWD has vowed to continue to play its part in creating rules to “offer meaningful access to assisted dying, or … risk prolonging the pain and anguish we’ve worked so hard to end”.38 DWD plans to partner with BC Civil Liberties Association to press Ottawa to forge a legal framework in the spirit of the Court’s judgement.

Relevant Dates

  • 1972: Ottawa decriminalizes attempted suicide
  • 1970s: Right to refuse medical intervention established by the courts
  • 1982: DWD founded and granted charitable status approved by CRA
  • 1993: Sue Rodriguez, a victim of amyotrophic lateral sclerosis (ALS), loses her bid to legalize assisted suicide
  • 2005: DWD undergoes regular audit, given clean bill of health
  • 2011: BCCLA files case in British Columbia brought on behalf of Gloria Taylor and the family of Kay Carter re physician-assisted suicide
  • 2012: Federal Budget announces crackdown on registered charities
  • 2012: BC Supreme Court rules in favour of BC Civil Liberties CLA, suit brought on behalf of Gloria Taylor and the family of Kay Carter re physician assisted suicide giving Parliament one year to rewrite laws
  • 2013: Ottawa appeals decision and BC Court of Appeal overturns the ruling
  • December 2013: CRA informs DWD that it will be audited
  • January 2014: DWD is audited by CRA for the better part of a week. It is told it will hear the results of the audit within 6 weeks to 2 months
  • July 2014: DWD is given intervener status by the SCC in Carter
  • May 2014: After hearing nothing from CRA, DWD follows up, only to hear that its charitable status might be annulled.
  • June 2014: Quebec becomes the first Canadian jurisdiction to allow assisted suicide
  • January 2015: DWD receives formal notice that its charitable status will be annulled effective February 2015
  • February 2015: Supreme Court ruling in Carter v. Canada strikes down the criminal ban on doctor-assisted suicide
  • February 2015: DWD’s charitable status is officially annulled
  • March 2015: DWD decides not to challenge audit and to continue its work to educate Canadians about dying with dignity

1Criminal Code, RSC 1985, c C-46 s 241.
2Dying with Dignity Canada, “Mission” (last modified 2011), online: <http://www.dyingwithdignity.ca/about/index.php> [DWD Mission].
3Rodriguez v British Columbia (Attorney General) [1993] 3 SCR 519, 76 BCLR (2d) (QL) [Rodriguez].
4 Bruce Cheadle, “After CRA audit, Dying with Dignity group stripped of charitable tax status” CTV News (20 January 20, 2015), online: < http://www.ctvnews.ca/canada/after-cra-audit-dying-with-dignity-group-st... CRA audit, Dying with Dignity group stripped of charitable tax status> [Cheadle].
5Carter v Canada (Attorney General), 2012 BCSC 886, 287 CCC (3d) 1 [Carter 2012].
6Cheadle, supra note 4.
7Carter v Canada (Attorney General), 2012 BCCA 502 [Carter 2013].
8Interview with DWD Executive Director Wanda Morris (27 March 27, 2015) [Morris interview].
9Carter v Canada (Attorney General) (4 July 2014) Ottawa SCC 35591 (Order Motion); see also: Dying with Dignity “DWD Named as Intervener by Canada’s Highest Court” (7 July 2014), Dying with Dignity, online: <http://www.dyingwithdignity.ca/2014/07/07/dwd-named-as-intervener-by-canadas-highest-court.php> [DWD 2014].
10Letter from Canada Revenue Agency to Dying With Dignity Canada (16 January, 2015) [CRA letter].
11Morris interview, supra note 8.
12Ibid.
13Carter v Canada (Attorney General), 2015 SCC 5 [Carter 2015].
14Ibid at para 66.
15Canada Revenue Agency, “Upholding Human Rights and Charitable Registration”, Guidance Canadian Revenue AgencyCG-001, 3.2, last modified August 18, 2011, online: CRA <http://www.cra-arc.gc.ca/chrts-gvng/chrts/plcy/cgd/hmn-rghts-eng.html> [CRA guidelines].
16Ibid.
17Cheadle, supra note 4.
18Morris interview, supra note 8.
19For example, Christian Legal Fellowship is a registered Canadian charity that also intervened in the Carter case, supporting the ban on assisted suicide.
20 Press Progress, “The CRA Stripped an end-of-life group’s charity status. But what about pro-life charities?” (22 January 2015), Press Progress (blog), online: <www.pressprogress.ca/en/post/cra-stripped-end-life-groups-charity-status-what-about-pro-life-charities> [Press Progress blog].
21 Ibid.
22 Canada Revenue Agency, “Political Activities”, Policy Statement Canadian Revenue Agency CPS-022, 8, online: <www.cra-arc.gc.ca/chrts-gvng/chrts/plcy/cps/cps-022-eng.html#N102C1> [CRA policy statement].
23 Morris Interview, supra note 8.
24CRA letter, supra note 10.
25Cheadle, supra note 4.
26Ibid.
27Broadbent Institute, “Broadbent Institute raises new questions about bias in tax audits” (21 October 2014), The Broadbent blog, online: <https://www.broadbentinstitute.ca> [Broadbent]; Voices-Voix “Canadian Charities and the Canada Revenue Agency” (1 May 2015), Voices-Voix (website), online: <http://voices-voix.ca> [Voices-Voix]; The Canadian Press, “CRA audits CCPA think-tank due to alleged bias”, CBC News (02 September 2014), online: <http://www.cbc.ca> [CBC article].
28Voices-Voix, supra note 27.
29Ibid.
30Ibid for further discussion.
31Ibid for discussion of the Broadbent Institute study.
32Dying with Dignity Canada, “DWD Canada’s charitable status officially annulled,” (10 March 2015), Dying With Dignity Canada, online: <http://www.dyingwithdignity.ca/2015/03/10/dwd-canadas-charitable-status-officially-annulled.php.> [DWD 2015].
33Morris interview, supra note 8.
34Voices-Voix, supra note 27.
35DWD 2015, supra note 32.
36Ibid.
37Cheadle, supra note 4.
38DWD 2015, supra note 32.

Role or Position

DWD was founded in 1982 as “a health and educational charity focused on promoting choice and dignity at end of life”, and “a national, member-based organization committed to helping people achieve quality in dying”.1 Its primary objectives are helping Canadians to understand all available end-of-life options and working for choice in dying for all. In sum, its mission is “to improve individuals’ quality of dying and expand Canadians’ end-of-life options”.2

DWD relies mainly on volunteers: in 2013, supporters donated approximately 8,000 volunteer-hours.3 The organization has four paid staff.4

1DWD Mission, supra note 2.
2Ibid.
3“Job Opportunity: Chief Operating Officer” (May 2014) Dying With Dignity Canada, online: <http://www.dyingwithdignity.ca> [DWD Job Posting].
4Andrew Duffy, “Dying With Dignity Canada about to lose charitable status”, The Ottawa Citizen (20 January 2015), online: <www. http://ottawacitizen.com/> [Duffy].

Implications and Consequences

  • Free Speech: Money talks – as do educational campaigns. The government has targeted the resources of charities by stripping them of their charitable status while criticizing their ability to use emotional appeals – a tactic widely used by most charities of all types to raise funds.
  • Transparency: That the audit occurred at a crucial time in the history of assisted suicide raises questions about its timing, especially 30 years after the organization was granted charitable status and after at least one previous audit had taken place without any problems. The audit took place at a critical juncture when the organization was intervening before the Supreme Court of Canada in a hotly contested case that opposed government interests.
  • Democracy: Selective audits place significant strains on the resources of charitable organizations and diminish the ability to carry out their core work during the period of the audits.
  • Human Rights: DWD defends the rights of Canadians to choose a peaceful death, which is intimately connected to the rights to life, liberty, and security of the person. Without sufficient resources, however, DWD will have a much more difficult time in doing this, and the voices that it represents will likely be more easily forgotten or stifled by opposition.1
  • Civil Society relies on social movements and civil society organizations to produce information about the relationship between the public interest and political choices and priorities. The current Conservative government’s use of audits to remove charitable status from organizations with which it disagrees, such as DWD, undermines the ability of Canadians to make informed judgements about public and personal policy. DWD’s case is, unfortunately, not an anomaly. The auditing process itself, as well as the use of annulment or revocation of an organization’s charitable status, are powerful tools that can be used by the government to stifle dissent. The way in which the vague rules and classifications are applied and pursued are very much at the mercy of the government. Should a government wish, it has the ability to only target organizations that it is in disagreement with, and can interpret the vagueness of the CRA guidelines in a way that is favourable to itself.

1Paul Egan, "Breaking barriers", Winnipeg Free Press, (4 July 2004).

Published: 16 June 2015

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