A recent Federal Court of Appeal case Church of Atheism of Central Canada v. Canada (National Revenue) deals with a group promoting atheism who applied for registered charity status, CRA rejected the application, the group appealed to the FCA and the FCA dismissed the appeal.  The FCA sided with CRA that the atheist group should not be a registered charity.  Essentially atheism is not a religion and therefore could not be registered under “advancing religion”.

The group’s main arguments were that the common law view of advancing religion is discriminatory contrary to the Canadian Charter of Rights and Freedoms.  The court did not accept that there was a violation of charter rights.  It will be interesting to see if the case is appealed.

A few quotes from the case:

  1. “[10] … “A review of the jurisprudence shows that fundamental characteristics of religion include that the followers have a faith in a higher power such as God, entity, or Supreme Being; that followers worship this higher power; and 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).”
  2. “[20]  The Minister found that Atheism did not meet any of the three elements established by the Courts to be fundamental to religion. He found that the worship of energy does not meet the first element that the adherents to a religious belief system have faith in a higher unseen power such as a God, Supreme Being, or entity. The Minister found that the second element of reverence of said Supreme Being could not exist without a belief in a Supreme Being.”
  3. “[26]  One further word on the registration of an organization as a charity under the Act. There is no dispute that such registration is a privilege, not a right (Many Mansions Spiritual Center, Inc. v. Canada (National Revenue), 2019 FCA 189, at paragraph 6). The privilege of registration as a charity functions as an indirect tax subsidy to encourage the work of registered charities. The Supreme Court of Canada has found that, 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 (Canadian Magen David Adom for Israel v. Canada (Minister of National Revenue), 2002 FCA 323, 293 N.R. 144, at paragraphs 2-3; A.Y.S.A. at paragraph 42). That is precisely what the Minister had done in this case.”
  4. [27]  In conclusion, based on the record before him, it was reasonable for the Minister to decide that the appellant could not be registered as a charitable organization because it lacked a charitable purpose, as defined by the common law, and did not carry out charitable activities in furtherance of that charitable purpose, as is required by the common law.

As Canada becomes increasingly secular there are calls in different quarters that the traditional definition of charity, which includes “advancement of religion” should be replaced by a statutory definition which may or may not include religion.  Another approach being discussed is the Australian model which focuses less on whether a group is a charity but instead a “deductible gift recipient” which would exclude groups that “advance religion” unless they are also doing something else that is charitable.  Ultimately the courts are not planning on changing the status quo “In the absence of legislative reform”.  There is a lot to be said for keeping the traditional common definition of charity but in Canada where complaining is a national pastime next to hockey, I am not sure that we will be prepared to leave good enough alone.

This case is a timely reminder that it has been many years since the Charities Directorate finalized their guidance on religion and apparently the minister has not been prepared to allow the guidance to be published although we discovered a copy in an FOI/ATIP request.  As CRA noted in a memo to the MNR on July 21, 2016 “With almost 40 percent of the charity population in Canada registered under the category of advancement of religion, this guidance continues to be a priority for the sector. The Directorate has used various drafts of this guidance internally in its decisionmaking since 2013.”  It may be a priority for the sector but it does not appear to be a priority of the Minister.   From a rule of law perspective, it is pretty shocking that the CRA Minister is not prepared to release guidance on a topic that is pretty central to 40% of charities.

Here is a copy of the full text of the case Church of Atheism of Central Canada v Minister of National Revenue