Excerpts from the Reasons for Judgment of Hugesson, J.A., Pratte, J.A., concurring, in the case of Vancouver Regional FreeNet Association (appellant) v. Minister of National Revenue (respondent), Federal Court of Appeal, A-413-94, Heard at Vancouver (B.C.) on Monday, June 10, 1996. Judgment rendered at Ottawa (Ontario) on Monday, July 8, 1996.

“[page 1] In this appeal we are called upon to decide whether the provision of free access to the information highway is a charitable activity so as to qualify the organization providing such access as a registered charity within the meaning of the Income Tax Act. The Minister [of National Revenue] and my brother D�cary J.A. think that it is not. With respect, I have a different view.

“Somewhat anomalously, the Act does not provide a useful definition of `charity’ or `charitable’ so that the Courts of necessity are thrown back to an obscure and not always entirely consistent corner of the law of England. Judging from the number of times that this Court has been called upon in recent years to apply that ancient law to the circumstances of life on the eve of the third [page 2] millennium, I may be forgiven for expressing the wish that this is an area where some creative legislative intervention would not be out of order.” …

[Following a review of the law and the FreeNet’s constitution, the Court continues:]

“[page 6] As the case material makes plain, the appellant provides free public access to all members of the community who wish such service in the Lower Mainland of British Columbia. It allows its users access to the Internet as well as to information stored in the appellant’s own system by community organizations. Access to such information is available to FreeNet users whether or not they register with the appellant but those who do register gain the additional facility of being able to exchange information with one another either through on-line [page 7] discussion groups or by individual communication through E-mail. While it is the appellant’s policy not to censor information stored in its system, it does reserve the right to review and remove information should it be necessary to do so for legal reasons.” …

[Following a quotation from the Minister’s refusal letter summarizing his views as to why the FreeNet does not qualify as a charitable organization, the Court continues:]

“[page 7] I may say at the outset that I find the Minister’s decision to be revealing. He describes the analogy to a public library as `compelling’ but refuses to accept it because of the absence of a `clear judicial precedent.’ There could hardly be a clearer invitation to this Court to provide such a precedent. I shall [page 8] have more to say shortly about the Minister’s apparent concern over the appellant’s absence of control of the information stored in its system.

“As I understand the law stated in the authorities previously cited, this Court, in deciding whether the appellant falls within the fourth category of charities, is required to determine whether its purposes fall within the spirit and intendment of the Statute of Elizabeth. That, in its turn, requires us to look at the appellant to see if it has the same type of purpose as those listed in the preamble to the statute. The detail of how those types of purposes will work themselves out in the real world will, of course, change as society changes but the types themselves will not.

“Information is the currency of modern life. This has been properly called the information age. The free exchange of information amongst members of society has long been recognized as a public good. It is indeed essential to the maintenance of democracy, and modern experience demonstrates more and more frequently that it, more than any force of arms, has the power to destroy authoritarianism. The recognition of freedom of speech as a core value in society is but one aspect of the importance of freedom of information.

“The preamble to the Statute of Elizabeth speaks of the repair of bridges, ports, causeways and highways. These were, of course, at the time the essential means of communication. With the passage of time they have been considered so essential to the public welfare that they have been almost entirely taken over by public authorities. The same is true of the example given by Lord Macnaghten in Pemsel’s case [“a gratuitous supply of pure water for the benefit of a crowded neighbourhood”], and the supply of pure water, though generally not `gratuitous,’ is now viewed as an essential public service. Likewise, the provision, of electric light, one of the examples listed in the foregoing quotation from Tudor.

“[page 9] While I do not want to insist unduly on the analogy to the information highway, there is absolutely no doubt in my mind that the provision of free access to information and to a means by which citizens can communicate with one another on whatever subject they may please is a type of purpose similar to those which have been held to be charitable; it is with the spirit and intendment of the preamble to the Statute of Elizabeth.

“I wish to say a word about the Minister’s evident concern with the question of control of content [e.g., that the Association does not have sufficient control over how the facility is used]. In my view, and with respect for those of a contrary opinion, it misses the mark. A distinction must be made between the medium and the message. Where an organization which itself is providing a message to the public seeks charitable status (e.g., a newspaper, a television station, etc.) there must, of course, be concern that it controls the messages so as to ensure that they are consistent with a charitable purpose and are not used for some other purpose. That is the only type of control with which the Minister can be legitimately concerned and it is not applicable to the present case since the appellant provides access to messages but not the messages themselves. It is, of course, the case that control of content has historically been imposed by providers of simple access by reason of physical limitations: a library cannot stock all the books that have ever been published and a meeting hall cannot accommodate all the persons and groups who might conceivably want to use it. Those limitations, however, are not a condition of their charitable purpose: an infinite library or a boundless meeting hall would not lose their charitable character. The information highway is almost limitless in its scope and capacity but that is no reason for failing to recognize its vast potential for public benefit. The appellant’s purpose in providing access to it is one of general public utility.

“[page 10] Nor should the fact that the appellant’s system, and indeed the Internet itself, can be used for private or commercial purposes or misused for criminal or destructive purposes serve to disqualify the free provision of access thereto from obtaining charitable status under the [Income Tax] Act. Once again, we are dealing only with the medium and not with the content of the message. A real highway or bridge in the time of the Elizabeth was recognized as a public good because it allowed the inhabitants of a town or village to communicate with the outside world and vice versa. It might be used by person going to market as well as to church or school. It might also be used by highwaymen or by absconding debtors. The nature of the traffic, however, did not serve to dilute or diminish the great public good provided by the facility itself. “The appellant’s purpose is to provide public access for the inhabitants of the Lower Mainland of British Columbia to the modern information highway. That is, in my view, as much a charitable purpose in the time of the second Elizabeth as was the provision of access by more conventional highways in the time of the first Queen of that name.

“I would allow the appeal, set aside the decision of the Minister and refer the matter back to the Minister for reconsideration on the basis that the appellant is a charitable organization within the meaning of the Income Tax Act.

“signed, James K. Hugessen, J.A.”
“I agree, Louis Pratte, J.A.”