Don’t be a nonprofit party to terror

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Canadian charities and terrorism aren’t generally subjects associated with one another. But recent legislative changes to Canada’s anti-terrorism laws, the Criminal Code and heightened scrutiny by the Canada Revenue Agency (CRA) on how domestic charities finance and oversee projects abroad have serious implications for organizations with operations outside the country.

The CRA’s Charities Directorate (and its Enforcement and Disclosures directorate) comprise part of the Canadian government’s overarching anti-money laundering / anti-terrorist funding regime, and in recent years have ramped up their inspection of charities suspected of aiding and abetting terrorism as a result of more stringent laws. And here’s the tough part for local nonprofits and charities to digest: the CRA’s rules regarding funding or aiding terrorism apply whether the organization in question is complicit or not.

Here’s how the government, via the Finance Department, described the Charities Directorate’s role in helping prevent funneling of money to terrorist entities.

“The [directorate’s] screening and review activities are aimed at preventing organizations with ties to terrorism from obtaining registration and detecting and revoking already registered charities with ties to terrorism. The CRA Charities Directorate may disclose to the RCMP, CSIS and the Financial Transactions Reports Analysis Centre of Canada [FINTRAC], either proactively or following receipt of a request for information, specified information related to national security criminal investigations, subject to prescribed circumstances set out in Section 241 of the Income Tax Act,” the department notes on its website.

It’s also helpful for charities to know that the directorate also receives information from the RCMP, CSIS and FINTRAC to help it decide on whether to deny or revoke charitable status “as appropriate.”

A cautionary nonprofit tale

CharityVillage® couldn’t find any organizations willing to speak about this issue as regards their operations or investigations by government.

One of the higher profile revocations of charitable status happened last December, when the CRA audited the Toronto-area charity Canadian Foundation for Tamil Refugee Rehabilitation.

The CRA published its revocation reasoning as follows: “We have concluded that the Foundation has ceased to comply with the requirements of the Act for its continued registration in that it: failed to maintain adequate books and records; improperly issued tax receipts on behalf of a third party; failed to maintain adequate direction and control over the use of its funds; and provided funding to non-qualified donees outside Canada.

“This funding included $722,390 provided to organizations which, on the basis of publicly available information detailed in our letter of November 19, 2009, the CRA believes operate as part of the support network for the Liberation Tigers of Tamil Eelam (the LTTE), a listed entity under the United Nations Suppression of Terrorism Regulations and the Criminal Code of Canada.”

Lawyering up

Two esteemed Canadian charities lawyers, Terrance Carter and Mark Blumberg, have much to say about the government’s position on clamping down on charities exposed to abuse or trickery by terrorists.

Carter’s view is that Canadian law, specifically as regards the Anti-terrorism Act, may have overreached regarding how charities can be deemed as supporting terrorism.

Inasmuch as a charity can know about how its funds or material goods may be used abroad and which actors handle its finances for projects on the ground in different countries, it’s what they don’t know that can hurt them, Carter notes.

He points out that Canadian law says a terrorist activity is considered “facilitated” whether or not the facilitator, in this case a charity, knows that a particular terrorist activity is facilitated; any particular terrorist activity was foreseen or planned at the time it was facilitated; or any terrorist activity was actually carried out.

“Under the Anti-terrorism Act, unintentional actions of a charity may therefore result in a charity unwittingly committing an offence under the Criminal Code,” Carter warns. That having been said, he notes that the “law is the law” and charities need to make sure they comply with the regulations that the CRA are obliged to enforce.

In a presentation to Osgoode Law School late last year, he noted that the government might target certain charities over others with regard to terrorism funding concerns.

“Charities with political, religious and ideological purposes may be more suspect because they in part meet the definition of ‘terrorist activity’, and thus such charities may be scrutinized more than others,” he said. “My fear is that organizations who currently operate in conflict zones, will be limited in their work. And those are the precise areas where their work is needed the most.”

Blumberg has a different perspective.

“Some charities should not operate in some of the most difficult places around the world. Only those that have the necessary skill and capacity to operate abroad should be involved in these areas,” he said. “When you’re operating in difficult places, it’s also not just about [Canadian law] but having the capacity to do so; which means having financial capacity, and having appropriate training for staff and volunteers on the ground. Practically speaking, I think we can sometimes get caught up in some of the nuances of Canadian law."

More important, he said, is the idea that nonprofits understand they are subjecting their staff and workers in conflict areas to potential personal harm to say nothing of exposing the aid organization to abuse by terrorists.

“The amount of humanitarian workers being killed now is exponentially higher than it was 20 years ago. I think it would be naïve for us to say that the big issue is interpretation of Canadian law. In some countries, people targeted by terrorist groups get killed. That obviously is much more concerning than any nuance of the law or fear of an audit by the CRA,” Blumberg said.

The exception not the rule

Carter’s take on the matter is that the anti-terrorism laws on the books in Canada are overly broad and cast too wide a net. “It catches the bad guys, but makes it difficult for the good guys to do what they’re called to do.”

He said that if the CRA were to enforce the rules to the letter of the law, it would make it almost impossible for Canadian charities working abroad, from the smallest to the largest organization, to actually continue operating.

“The standards required [by the government] have not been sufficiently nuanced. If every charity had to do everything the legislation requires, which the CRA is called upon to enforce, it would make it very difficult for legitimate charities to carry on,” Carter said.

To that end, his firm, Carters, has put out information for charities in order to educate them about the nature of the law and how to work within it as best as possible.

The CRA has also released an 11-item checklist for charities regarding how to control their funds and assets in order to avoid becoming suspect of terrorist activity. But this checklist, while helpful to some extent, in Carter’s opinion is still hard to comply with.

“The checklist gives the example that [charities] should know who’s using their equipment. They should know what people are saying using your telephone. Well that’s not possible,” he said. “The difficulty that I find when we advise clients is that they say they’d like to comply, but from a practical standpoint it becomes impossible. That makes it difficult not only for the charity, but for the volunteer members of the board to feel a sense of protection for themselves personally, when they can’t be assured that all steps are being taken in order to satisfy the CRA.”

Blumberg however, calls the checklist “succinct, balanced and helpful.”

Additionally, Blumberg notes that the CRA also has detailed suggestions for nonprofits operating abroad in their Foreign Activity Guidance. These, he said are essential for Canadian nonprofits to understand in terms of legal and risk-management issues when operating outside the country.

The CRA says charities that abide by the checklist are in the best position to avoid being taken in by terrorist entities seeking to use them for illicit means.

“It makes good sense on many levels for charities to develop and implement sound internal governance and accountability procedures, financial controls, risk management systems, and transparent reporting, and to keep these things under regular review. These are among the best actions any charity can take to help protect itself against actual or alleged abuse of any kind, including allegations of fraud, money laundering, or support for terrorism,” the CRA’s checklist website states.

A lack of due process?

Of further concern to Carter, is the process the CRA uses to evaluate and reach a conclusion of whether or not they deem a charity of being involved in terrorist funding.

“If they suspect a charity may directly or indirectly be supporting a terrorist, all they need to do is raise the suspicion. They don’t have to prove it. Then it becomes the obligation of the charity to disprove that suspicion. And if they can't do that adequately, then CRA will revoke their status,” he said.

So charities working in conflict areas have to be extremely careful to do their due diligence before engaging in their work, Carter counseled.

Carter declined to say precisely how many clients he’s handled with this issue, but noted that there aren’t many, and was quick to point out that it is not a widespread problem.

“The international community believes charities are a big player in the financing of terrorism. That’s not the case,” he said. “Very few charities in the US or Canada have been found to be supporting terrorism. So you have a very large infrastructure designed to track down these charities...but the evidence is not sufficient to justify that concern.”

The biggest concern he has as fallout from this anti-terrorism regime, is that if charities become frightened by the need to comply with these anti-terrorism laws they won’t want to venture into conflict zones and will “preclude the obligation that the international community has to do humanitarian work” in those areas.

Blumberg believes an argument can be made that the CRA is being too cautious in its approach to investigating charities alleged to have been involved with terrorism.

By way of example, he said that in 2005 the Canadian government became suspicious of a registered charity allegedly involved with terrorism and it was only last year that the charity was revoked for cause.

“That’s six years that it took CRA to deregister this charity,” he said.

The CRA says...

In a February presentation titled “Being Good at Doing Good: Safeguarding Yourself and Your Charity in a Complex World” given to sector organizations and legal experts, Alastair Bland, the Charities Directorate’s director of the division of review and analysis, clarified what the CRA wants charities to know.

He said charities must “own, direct and control” their activities from top to bottom, no matter where they operate.

“Typically, charities carry out activities through volunteers or paid staff. In some cases, charities rely on an intermediary to carry out their charitable activities. In order to meet the ‘own activities’ requirement of the Income Tax Act, a charity must direct and control the use of its resources by an intermediary,” Bland said. “Resources is all resources, not just money.”

Similarly, Bland points out that direction and control of activities and funding is crucial to maintaining charitable registration, specifically as regards anti-Terrorism laws as applied via the Income Tax Act.

“The charity must be the entity that makes the decisions and sets parameters on significant issues related to any activity undertaken on its behalf. It must be the ‘guiding mind’ on issues such as: the activity’s overall goals, how the activity will be carried out, the area or region where it will be carried out, who benefits from the activity, what goods and services the charity’s money will buy, and when the activity will begin and end. The CRA strongly recommends the use and monitoring of a written agreement to achieve this,” he instructed.

CRA Charities Directorate spokesperson Mylène Croteau notes that the agency does not yet have any statistics on how many organizations have had their charitable registrations revoked for being involved with funding terrorism abroad.

Additionally, she said it’s still too soon for the agency to confirm whether there is a trend occurring with more organizations becoming involved with illicit activities.

“Instances of actual or suspected terrorist abuse of the registered charity sector are rare, but real both in Canada and other countries,” she said.

Asked whether the CRA could comment or provide any information on organizations involved with this type of activity, Croteau said that section 241 of the Income Tax Act “precludes the CRA from commenting on specific organizations. But when an organization is revoked for cause, the CRA is authorized to provide a summary of the reasons for revocation on our website.”

Be cautious. Be safe.

Blumberg advises start-up charities or inexperienced charities to exercise caution before doing “their own direct humanitarian, development or other work in places with ongoing conflict and violence.” He cites areas such as Northern Pakistan, Colombia and Chechnya as a few examples.

“If you want to minimize your risk of involvement with terrorism while delivering a foreign project yourself, you may wish to focus on countries where terrorism is not an issue and where language, culture, stability and the lack of violence and conflict combine to create an environment that is easier for you to work in,” he said in a recent webinar for the Capacity Builders’ Charity Law Information Program (CLIP).

And if an organization gets word of allegations it may be involved with a terrorist entity, it should investigate immediately and report its findings to the authorities.

“If the allegations are substantiated, disassociate immediately from the involved groups or individuals,” Blumberg said. The best way to do this is to contact the RCMP’s National Security Information line or the CRA.

Lastly, he notes that charities should also be aware that Canada maintains various sanctions against numerous countries around the world. Operating in any of those areas should be undertaken knowing the full extent of the sanctions.

For more information on which countries are currently under sanctions, visit the Department of Foreign Affairs and International Trade [DFAIT] sanctions website.

A last bit of advice from Blumberg is for charities to always be aware of where their money is going and what it’s being used for in a foreign country.

“Practically speaking, terrorism is not the biggest concern [for Canadian charities], rather it’s looking at money not being used for what it should be used for such as private benefit, fraud and things like that,” he said. “But if you’re looking at it from a reputation point of view, there’s nothing that can drag down the charity sector quicker than to have a charity involved with terrorism.

“Seeing as how CRA has only gone after a few charities that have been involved in quite obvious, overt attempts [with terrorist connections]… and there are much more charities doing work abroad now than there were 10 years ago and the amount of money being spent is much greater now. So I would just say that charities, for many reasons, need to more than ever watch what they’re doing when operating outside of Canada. They can get sent to jail for violating the other country’s rules, which is the much higher concern than any technical aspect relating to operating the charity in Canada. That’s what worried my clients,” Blumberg said.

More information from Blumberg is available on his Canadian Charity Law website.

Andy Levy-Ajzenkopf is president of WordLaunch professional writing services in Toronto. He can be reached at

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