The Green Party is citing an alleged breach of Canada's charity law in a novel, last-ditch bid to insert leader Elizabeth May into a national election debate later this month.

May has been excluded from a Sept. 28 event in Toronto, known as the Munk leaders' debate, funded by the Aurea Foundation, a registered charity established in 2006 by Peter and Melanie Munk.

A Toronto law firm hired by the party argues that denying May an opportunity to join the debate violates the Income Tax Act, which requires charities to be scrupulously non-partisan.

Brian Iler

Toronto lawyer Brian Iler argues that the Munk debate organizers are acting in a partisan fashion and violating charity law by excluding the Green leader from the event. (Iler Campbell LLP)

The party has filed a formal complaint with the Canada Revenue Agency, asking the agency to "fully audit the Aurea Foundation's involvement and sponsorship of the debate."

"As the debate is less than two weeks away, we request that this audit be conducted as soon as possible," says a letter delivered Friday to the charities directorate.

The party has also sent letters of complaint to Rudyard Griffiths, president of the Aurea Foundation and spokesman for the Munk Debates, and to the president of Roy Thomson Hall, the debate's venue, which is also run by a registered charity.

'Breaking the law'

"Not inviting Elizabeth May, in the view of our counsel, is breaking the law and the CRA should step in and enforce it," said Jim Harris, party spokesman in Toronto. "The right thing to do is obey the law and invite Elizabeth May."

The party obtained a six-page opinion from Iler Campbell LLP, which rejects the argument from the Munk organizers that only parties recognized by the Parliament of Canada Act — that is, with 12 or more members in the House of Commons — are invited. The Greens had two members in the last Parliament.

But Brian Iler, the lawyer who wrote the opinion, says the Income Tax Act has no such restrictive definition of a political party, and that the Munk failure to issue an invitation to May "could be to diminish the standing of the [Green] party in the mind of the electorate, which arguably amounts to an indirect opposition to the party."

'We request that this audit be conducted as soon as possible.' –Green Party letter to Canada Revenue Agency

"To the extent that the Aurea Foundation provides resources to support the debate, and the debate is a partisan political activity, then the Aurea Foundation will not be operating exclusively for a charitable purpose, which means that it will cease to comply with the requirements of the ITA [Income Tax Act] for its registration."

The Harper government in 2012 launched a series of 60 political-activity audits of Canadian charities, starting with environmental charities that have been critical of energy policies. The $13.4-million program later expanded to cover human-rights, poverty and international-aid charities, many of them also vocal in opposition to some government policies.

Critics say the audits have led to "advocacy chill," as charities self-censor for fear of aggravating their auditors.

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Rudyard Griffiths is president of the Aurea Foundation, which is financing the Munk leaders' debate. Organizers say they are inviting only leaders of parties with at least 12 members in the House of Commons. (CBC)

Charities are restricted to using a maximum of 10 per cent of resources for political activities, but are forbidden from any partisan activities, including advocacy or opposition to parties or candidates.

"As Stephen Harper has made very clear, charities are not permitted to participate in a number of political activities — and this [Munk debate] is one of them," Iler said in an interview. "This one is clear, very clear."

Declines comment

A spokesman for the Canada Revenue Agency, Philippe Brideau, declined to comment, citing confidentiality provisions of the Income Tax Act. An agency guidance document on charities and partisan activities says, among other things, that "organizing an all-candidates meeting or public forum in a way that could be seen to favour a political party or candidate" is forbidden.

May was included in an August leaders' debate sponsored by Maclean's magazine, but was not invited to another debate last Thursday organized by the Globe and Mail. She instead used a Twitter feed, including video, during the debate to comment and argue on issues raised.

The Munk debate will focus on foreign affairs. Griffith, who has previously defended the revenue agency's political-activity audits of charities, could not be immediately reached for comment on the Green complaint.

The Aurea Foundation, with assets of almost $16 million, reported no political activities in its most-recent filing with the CRA last year. It helped fund a group of largely conservative think-tanks, including the Fraser Institute, the Frontier Centre for Public Policy and the Montreal Economic Institute.

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