摘要：For many years, the determination of which organizations should qualify for the significant
tax benefits accorded to registered charities (organismes de bienfaisance enregistrés)
under the Canadian Income Tax Act (ita ) has been based, in all provinces, on the concept
of charity developed by the English common law of charitable trusts. However, there are
other sources of meaning for the concept of charity (bienfaisance) in Canada, including
ancient civil-law sources that continue to form part of the basic law of Quebec. These
diverse “charity-law” sources present a challenge for the registered charity scheme, and
for the ongoing project of ensuring that federal laws are accessible to each of Canada’s
multiple legal and linguistic audiences.
This article challenges the prevailing view that there is only one source of meaning for
the registered charity provisions. The author makes a number of assertions that
contradict the longstanding unijural approach. First, the current interpretive approach to
the registered charity provisions, and particularly the position that the ita concept of
charity is “uniform federal law,” is at odds with statutory and constitutional principles, as
well as Canada’s policies on legislative bilingualism and bijuralism, and the explicit terms
of sections 8.1 and 8.2 of the Interpretation Act. Second, there are at least four legal
sources of meaning for the terms “charity” and “bienfaisance” in Canada: the common
law of charitable trusts, the civil-law rules regarding legs pieux, the Roman laws on
foundations and gifts, and the various provincial statutes governing the administration of
charities. Third, although the ita term “charitable” (“de bienfaisance”) should likely
continue to be given a common-law meaning in the common-law provinces, “de
bienfaisance” is a problematic translation of the common-law term “charitable” because
it is more consistent with another English term, “benevolent,” which has consistently
been held to fall outside the legal concept of charity. Fourth, where valid provincial
legislation establishes a meaning for the term “charitable” or “de bienfaisance,” that
statutory meaning should generally be referred to in applying the ita within that province.
Finally, the author asserts that in Quebec, there is no basis for interpreting the term
“charitable” (“de bienfaisance”) in accordance with the common law of charitable trusts,
a body of private law (though admittedly one with public aspects) that has no application in that province. While Quebec’s civil-law tradition has never developed a stringent or
detailed conception of charity, the reception of the ancien droit from France did ensure
that a wide variety of customary law sources on transfers for charitable purposes came to
form part of Quebec law. Although these sources will require further study, they form part
of the law of property and civil rights in Quebec, and therefore part of the default legislative
dictionary applicable to federal legislation such as the ita . The article concludes with
some thoughts on various options for reform of the registered charity scheme.
关键词：Charities n income tax act n statutory interpretation n bijuralism n
bilingualism n federal–provincial
