God, Atheism, Religion, and Registered Charities

 In News, Tax, Wolters Kluwer

The lack of a God is less damning for a prospective religious charity than the lack of a detailed belief system. The Church of Atheism of Central Canada (the “Church”) found that out in Church of Atheism v. Canada (MNR)2019 DTC 5136 (FCA).

The Church is incorporated under the Canada Not-for-profit Corporations Act with the following goal:

The purpose of the Corporation is to preach Atheism through charitable activities, in the City of Ottawa, the provinces of Ontario and Quebec, and whichever province shall from time to time be designated as part of Central Canada by the By-Laws.

The Church applied for registration as a charity under the Income Tax Act (the “Act”). The main difference between a non-profit and a charity is that a registered charity can issue official receipts for donations for income tax deduction purposes (and the donors can receive tax credits), while non-profits cannot.

The Church’s application was refused by the Minister. The Church’s appeal from that decision was heard by the Federal Court of Appeal (the “Court”) on November 12, 2019. The Church argued that the common law test governing the advancement of religion as a head of charity is invalid as it is contrary to sections 215, and 27 of the Canadian Charter of Rights and Freedoms (the “Charter”). The Court reviewed the Minister’s decision on the standard of reasonableness (the Minister’s decision being a question of mixed fact and law). In the appeal, the Court had to determine whether the Minister’s decision (a) violated the Church’s rights and freedoms guaranteed by sections 215, and 27 of the Charter; and (b) was reasonable.

The Law

Subsection 248(1) of the Act defines “charity” to include charitable organizations. “Charitable organization” is defined in subsection 149.1(1) in part as follows:

(a)constituted and operated exclusively for charitable purposes,

(a.1)all the resources of which are devoted to charitable activities carried on by the organization itself,

[…]

The Act does not define charitable activities, so the Court reviewed the common law, which recognizes four charitable purposes:

(1)the relief of poverty;
(2)the advancement of education;
(3)the advancement of religion;[1] and
(4)certain other purposes beneficial to the community, not falling under any of the preceding heads (Commissioners for Special Purposes of the Income Tax v. Pemsel, [1891] A.C. 531 (H.L.)).

While items (1), (2), and (4) have clear objectives of value to society, religion is seen as inherently valuable to society.

Purposes (3) and (4) are at issue in this appeal. “Advancement” requires active promotion; the Church’s primary grievance is the definition of the word “religion”. From the Court’s judgment:

[10] For something to be a “religion” in the charitable sense under the Act, either the Courts must have recognized it as such in the past, or it must have the same fundamental characteristics as those recognized religions. These fundamental characteristics are not set out in a clear “test”. A review of the jurisprudence shows that fundamental characteristics of religion include that [a] the followers have a faith in a higher power such as God, entity, or Supreme Being; [b] that followers worship this higher power; and [c] that the religion consists of a particular and comprehensive system of faith and worship (Syndicat Northcrest v. Amseleum, 2004 SCC 47, [2004] 2 S.C.R. 551, at paragraph 39).

In common law, good and evil, positive and negative actions, and the particulars—or sincerity—of faith do not come into the equation when determining if a belief system is a religion.

The relevant sections of the Charter in dispute are:2. Fundamental freedomsEveryone has the following fundamental freedoms:

(a)freedom of conscience and religion;[…]15. Equality before and under law and equal protection and benefit of law

(1)Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.(2) Affirmative action programs

Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.27. Multicultural heritageThis Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

The Charter Arugments

The Court quickly ruled section 15 of the Charter out of contention: “… the Courts have recognized that not-for-profit corporations are not individuals for its purposes …” and, as a non-profit, the Church does not attract the protection of section 15. Section 27 is also inapplicable; it “is not a substantive provision that can be violated and is ‘relevant only as an aid to interpretation’ (Roach v. Canada (Minister of State for Multiculturalism and Citizenship), [1994] 2 F.C. 406 (FCA), 113 D.L.R. (4th) 67, at paragraph 71).”

Section 2(a) does protect the rights of atheists and the rights of the Church’s members to practise their beliefs in atheism and the Minister cannot interfere with the practice of these beliefs. However:

[16] … the Minister’s refusal to register the appellant as a charitable organization does not interfere in a manner that is more than trivial or insubstantial with the appellant’s members [sic] ability to practise their atheistic beliefs. The appellant can continue to carry out its purpose and its activities without charitable registration …

The Court determined that the Minister’s refusal to register the Church as a charity did not violate its Charter rights.

Reasonableness of the Minister’s Decision

The Church argued that the advancement of atheism ought to fit in under heading (3) of the four recognized charitable purposes—the advancement of religion. The Minister had found that the Church did not meet any of the three elements established by the jurisprudence to be fundamental to a religion ((a) faith in a higher power, (b) worship of this higher power, and (c) a comprehensive system of faith and worship).

In a small win for the Church, the Court agreed that belief in a higher power was not always required when considering the existence of a religion (nixing elements (a) and (b)); Buddhism was pointed out as a religion without a higher power. The Court’s primary concern was the third characteristic of a religion: a comprehensive system of faith and worship.

The Church’s system of faith was described thusly: “[W]e believe … that our Ten Commandments of Energy are sacred texts because they were created by a wise human being who consists of pure, invisible Energy and has acknowledged Energy’s existence”. As a system of faith and worship, this was rejected by the Minister:

[23] … [It] provides no detailed information as to the particular and comprehensive system of faith and worship. He [the Minister] found that the appellant’s contention that there should not be a requirement that a religion have an authoritative book similar to the Bible was a further indication that the appellant does not have a comprehensive and particular system of faith and worship …

It’s pretty weak tea from the Church, and the Court agreed with the Minister:

[24] While I leave open to another day whether the existence of an authoritative text such as the Bible is a necessary requirement, given the scope and vagueness of what was asserted here, it was reasonable for the Minister to deny the appellant under the heading of “advancement of religion”.

The Church’s final position was that it came within heading (4) of the recognized charitable purposes (”certain other purposes beneficial to the community, not falling under any of the preceding heads”). This was dismissed outright by the Court: “The activities provided by the appellant are for their members only and are not rehabilitative or therapeutic.”

The Minister’s decision, therefore, was reasonable, because the Church lacked a charitable purpose and did not carry out charitable activities in furtherance of a charitable purpose.

Denouement

The Church’s appeal was dismissed, with costs. At this time, the Church has not sought leave to appeal to the Supreme Court.

In obiter, the Court noted that registration as a charity under the Act is a privilege and not a right, adding that:

[26] … The privilege of registration as a charity functions as an indirect tax subsidy to encourage the work of registered charities … in reviewing applications, the Minister is obliged to look at the substance of the purpose and activities of the applicant to ensure they comply with the requirements in the Act.

Perhaps if the Church had embroidered and expounded its belief system more thoroughy, organized meetings and propagated its message,[2] published a central text, accumulated and studied the vast trove of thought on atheism through the ages—the pre-Socratics looking to “science” to explain natural phenomena, Epicureanism in fourth and third century BCE Greece, the Age of Enlightenment, the French Revolution, Karl Marx and Friedrich Engels, and on to the modern day writers like Christopher Hitchens and Richard Dawkins—the Minister’s or Court’s decision on the point of religion would have been different.

While being recognized as a religion and breaking new ground was undoubtedly the point of the Church’s application for charitable status,[3] the Church could have avoided the issue altogether by pursuing activities such as the relief of poverty or the advancement of education. Ultimately, the Church lost its case based on its lack of homework and good works—in the Court’s opinion at least—not on its lack of a god. Its best plan may be not to appeal to the Supreme Court, but to hire legal counsel,[4] compile a beefed-up application for charitable status, and submit that to the Canada Revenue Agency.

[1]While not referred to in the Court’s decision, CRA Policy Statement CSP-R06 (October 25, 2002) states, “To advance religion in the charitable sense means to promote the spiritual teachings of a religious body and to maintain doctrines and spiritual observances on which those teachings are based. There must be an element of theistic worship, which means the worship of a deity or deities in the spiritual sense.” It may be time to update this statement, but it did not factor into the failure of the Church’s case.
[2]An online search did not turn up a website for the Church of Atheism of Central Canada (other atheist churches do have websites). While not the alpha and omega of any faith system, an online presence expounding and propagating its beliefs is a good start.
[3]A search of the CRA’s list of charities (https://apps.cra-arc.gc.ca/ebci/hacc/srch/pub/dsplyBscSrch?request_locale=en) did not return any charities with the words “atheist” or “atheism” in their name.
[4]The Church had been represented by one of its ministers.
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