Arrest of US Baptist missionaries highlights importance of awareness and compliance with local laws
Posted under News | Canadian Charity Law | Global Giving | Ethics and Canadian Charities
It may take a while to know the full story but so far the headlines are “Baptist group accused of child-trafficking in Haiti ” http://www.theglobeandmail.com/news/world/haiti/baptist-group-accused-of-child-trafficking-in-haiti/article1450829/ or “Haiti ‘orphans’ case: Misunderstanding or kidnap?” from the BBC.
A few thoughts:
CRA in its recent consultation on foreign activities provides more explicit guidance on importance of Canadian charities when operating abroad understanding and complying with foreign laws
A.1 Local laws
It is well established that when a charity operates within Canada, it must comply with Canadian laws, including the Act and the common law. However, a charity that carries on activities outside Canada may operate in areas where the legal framework and laws are very different.
While the Income Tax Act does not require that registered charities comply with laws in foreign jurisdictions, being registered in Canada does not exempt a charity from the laws in the jurisdiction where they operate. The CRA strongly suggests that all charities make themselves aware of local laws, and how they are applied, prior to carrying out their charitable programs abroad. Being aware of local laws and their application will help ensure that the public benefit provided by a charity’s activities is not offset by harm that may result to those carrying on the activities, to the charity’s beneficiaries, or to anyone else. For more information on public benefit, please see Policy Statement CPS-024, Guidelines for Registering a Charity: Meeting the Public Benefit Test.
There are a number of complicated issues at stake here. It is very important that CRA is not saying that in order for Canadian charities to be registered as Canadian charities, they must follow foreign laws which would make CRA the enforcer of certain repressive foreign laws. However, a Canadian charity is not exempt from complying with the laws in the jurisdiction in which they operate. Canadian charities that do not comply with foreign laws can face serious criminal and civil penalties. Canadian charities should be first and foremost aware of local laws. Many are not. They simply do not even think of the issue. Perhaps others just assume that the law in a foreign country is probably similar to the law in Canada or perhaps there is no law on a particular point in the foreign country. This “awareness” should take place ideally before operations are started in the foreign country. “Being aware of local laws and their application will help ensure that the public benefit provided by a charity’s activities is not offset by harm that may result to those carrying on the activities, to the charity’s beneficiaries, or to anyone else”. Many Canadian charities operating outside of Canada for a number of reasons probably do more damage than good. This is a very important point often lost on well meaning Canadians who think as long as they are doing something well-meaning that others will benefit from the well meaning initiative. Not only can such thinking cause more damage than good, but also it will undermine the work of other charities or Canadian charities that may be tarred with the same brush.
Here is another story on the situation:
Kidnapping of Haitian children was no act of charity By Eugene Robinson in the Washington Post
http://www.washingtonpost.com/wp-dyn/content/article/2010/02/08/AR2010020802729.html?hpid=opinionsbox1
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Mark Blumberg is a lawyer at Blumberg Segal LLP in Toronto, Ontario. To find out more about legal services that Blumbergs provides to Canadian charities and non-profits please visit http://www.canadiancharitylaw.ca or http://www.globalphilanthropy.ca Mark can be contacted at .(JavaScript must be enabled to view this email address) or at 416-361-1982.
This article is for information purposes only. It is not intended to be legal advice. You should not act or abstain from acting based upon such information without first consulting a legal professional.
Comments
There has been so much focus on this incident which was basically a misunderstanding. Yet very little interest has been shown for the Christian Missionaries who made the ultimate sacrifice in serving the Haitian people.
On January 12 a 7.0 Richter scale earthquake struck the impoverished Caribbean nation of Haiti, bringing widespread death and destruction to the western hemisphere’s poorest nation. The earthquake killed at least 200,000 people, injured at least 300,000 others, leveled at least 250,000 residencies, and destroyed or severely damaged at least 30,000 commercial structures. It was Haiti’s largest and most destructive earthquake in more than 200 years.
Beyond the statistics, the human suffering is amongst the most heartbreaking the world has seen in some time – the break-up of families, the orphaned children, the lack of food and water, the emotional and physical pain, the fight for daily survival.
This tragedy, however, has born witness to the generosity of Americans once again and others throughout the world who have given of themselves financially – donating roughly $528 million as of late January. But long before the earthquake put Haiti on the world radar screen, it stood out for its dismal standard of living. For generations Christian missionaries have come to do what they could. They were there on January 12 before the bottom fell out. A few of them even made the ultimate sacrifice. We wanted to honor these individuals here and welcome your additions and suggestions if we have missed anyone.
Jeffrey J. Rodman
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