Last week the Federal Court of Appeal (FCA) upheld the denial of charitable status to the Church of Atheism (Church) as reasonable and not in violation of its s.2(a) Charter right of religious freedom (Church of Atheism of Central Canada v Canada (National Revenue), 2019 FCA 296).

The federally incorporated Church existed for the purpose of preaching atheism through charitable activities but had its application for registered charitable status denied by the Minister of National Revenue (Minister). In its appeal the Church argued that the common law test for the advancement of religion as a head of charity violated the Charter in three ways, namely religious freedom, religious equality and multiculturalism.

The FCA explained that while legislation defines “charitable organization” (s 248(1) of the Income Tax Act), it does not define charitable purposes. The latter is at the core of what it means to be a charity and is found in the common law (i.e. prior judgments).

There are four recognized charitable purposes, one of which is the advancement of religion. Prior judgments set out characteristics of religion such as faith in a higher power, worship of the higher power and the existence of a “particular and comprehensive system of faith and worship” (para 10). The FCA lamented the absence of legislative reform that would keep the law of charities “moving” and would clarify the related task of assessing the evidence to determine whether the Church is a charitable organization.

Turning first to the Charter arguments, the FCA dealt with all three in summary fashion. Section 15 equality rights apply only to “individuals”; not-for-profit corporations are not individuals for its purposes. Section 27 speaks to multiculturalism but is not a standalone right; rather, it is an interpretive aid for other substantive Charter rights. The section 2(a) religious freedom analysis recognized that atheism falls within its protective ambit but went on to simply state that the Church could continue to carry out its purpose and activities without charitable registration. In the FCA’s view any interference with the Church’s Charter right was trivial and insubstantial.

Having rejected all of the Charter arguments, the FCA went on to consider whether denying the Church’s registration was reasonable. The Minister had found that three fundamental characteristics common to previously recognized religious charities were not established: first, there was no faith in a higher unseen power or supreme being; second, there was not (and could not be) worship or reverence of a supreme being; third, there was not a comprehensive and particular system of faith.

The FCA questioned the first two conclusions, noting that a belief system does not necessarily have to include “faith in a higher Supreme Being or entity and reverence of said Supreme Being is not always required” (para 21). Leaving open to another day the question of whether an authoritative text such as the Bible is necessary to establish a “comprehensive and particular system of faith”, the FCA agreed that given the lack of information and vague assertions by the Church, the Minister’s decision was reasonable.

In its conclusion, the FCA emphasized that registration is a privilege, not a right (para 26) and that in granting this privilege the Minister is obliged to “look at the substance of the purpose and activities of the applicant to ensure they comply with the requirements of the Act” (para 26).

For these reasons, and as noted at the outset of this post, the Church’s appeal was dismissed.

We’ve done a quick summary of the decision today, but for a full analysis, including how it relates to the Senate report on the charitable sector, and the implications of its Charter reasoning, be sure to watch for your February 2020 Bulletin!

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