In the recent edition of the Alberta publication Law Matters,[i] law professor of tax law and policy, Saul Templeton of the University of Calgary wrote an article arguing that Trinity Western University’s (TWU) charitable status should be revoked. Templeton’s article is not only provocative but, unfortunately, completely ignores charity law.
The main thrust of his argument is that TWU should lose its charitable status because of the Community Covenant which requires students to respect marriage exclusively as a covenant between one man and one woman. He reasons that TWU is publicly funded since it receives charitable donations and its activities are against public policy. His reasoning is flawed as it violates both Canada Revenue Agency’s (CRA) policy and the charity law upon which that policy is based.
First, Templeton says that because a charitable gift enables the donor to receive a tax subsidy offsetting part of their contribution, the receiving charity is publicly funded. That leap of reasoning has yet to find any favour at all in Canadian law. Private donors, not government, contribute to registered charities. The fact that there is a tax benefit to donors hardly makes a charity a publicly funded entity.
The legal mechanism whereby government gives donors tax credits for their donations to charities serves as an incentive to engage the public in charitable giving because charities contribute to the public good. The state does not own these entities, nor is the government working through charities as a hand in a glove. Government merely regulates them, just like it regulates every other segment of Canadian society. The government does not fund charities. It gives donors a non-refundable tax credit, not a tax benefit. In other words, the government does not pay anyone the tax credit that is not claimed.
The goal for arguing that charities are “publicly funded” is to make the Charter apply as if charities were government. If that were so, the Catholic Church, by refusing to ordain women, would violate the Charter. Or, if a LGBTQI charity refused to hire a religious person with different beliefs on sex, it too would violate the Charter. The fact remains charities are not government – nor should they be.
Templeton also argues that TWU should lose its charitable status because it is in “pursuit of activities contrary to public policy.” Templeton’s reasoning fails on at least two points. The first is the CRA guidance which states that “if a charity has the standing to do so as a party or intervener, it can challenge the [government policy that is inconsistent with established human rights law] through the court system.”[ii] Seeking to uphold religious freedom is certainly within that guidance and not contrary to public policy.
Further, and most persuasively, the federal Civil Marriage Act and Income Tax Act address this matter very clearly and conclusively. The Civil Marriage Act specifically provides that nothing in the Act affects the guarantee of religious freedom of members of religious groups to hold and declare their religious beliefs on marriage. In Section 3.1, it states that it is not against the public interest to hold and publicly express diverse views on marriage. As if that alone did not settle the matter, section 149.1 (6)(21) of the Income Tax Act, which was added to ensure that an argument like Mr. Templeton’s was not the cause for charitable deregistration, states that a registered charity with a stated purpose of advancing religion would not be penalized because it exercises its religious freedom in relation to marriage between persons of the same sex.
How then can Templeton even suggest that TWU should lose its charitable status in light of the law? Certainly not by the law itself.
These views are troubling. The fact that Templeton does not like TWU’s Community Covenant, to restate Justice Campbell of the Nova Scotia Supreme Court, does not make it illegal or uncharitable. Rather, the Covenant is both perfectly legal and perfectly charitable. Templeton’s arguments, on the other hand, are a denial of Canadian legal reality, and as such, must fail.
[ii] CRA, Upholding Human Rights and Charitable Registration, guidance is found at: http://www.cra-arc.gc.ca/chrts-gvng/chrts/plcy/cgd/hmn-rghts-eng.html