We also noted that the decision was appealed to the Ontario Court of Appeal (ONCA) and that we’d keep you posted on the case. The ONCA recently released its decision. It dismissed the appeal, affirming the outcome of the lower court’s decision. Here is a summary of the ONCA’s findings in Muslim Association of Canada v Attorney General of Canada, 2024 ONCA 541.

Summary

The Muslim Association of Canada (MAC) appealed a lower court decision that dismissed MAC’s constitutional challenge to a CRA audit. The ONCA agreed with the lower court that MAC’s case was “premature”. MAC needed to go through all the stages of the CRA process and receive a final decision before going to court.

Background

MAC is a registered Canadian charity with over 500 members and 1500 volunteers that help operate 22 mosques and community centres and 30 schools across Canada. In doing so, MAC serves more than 150,000 members of the Canadian Muslim community.

CRA regulates registered charities in Canada. This involves selecting charities for audit and sometimes imposing sanctions, from financial penalties up to revoking charitable status, for those charities that do not follow regulations. These audits are conducted by either the Compliance Division or RAD. RAD is responsible for preventing terrorist groups from abusing the favourable tax treatment given to registered charities.

RAD selected MAC for an audit. MAC argued that its Canadian Charter of Rights and Freedoms (Charter) freedoms of religion, expression, association, and right to equality were infringed by the audit in three specific ways: RAD’s risk-based assessment process was biased, RAD’s Audit Referral Analysis relies on highly questionable sources, and RAD’s audit and resulting Administrative Fairness Letter profoundly misunderstands Islam.

The lower court dismissed MAC’s challenge because it was premature. MAC needed to go through all the stages of the CRA process and receive a final decision before going to court. MAC appealed that decision.

Issues & Analysis

The ONCA had to decide two issues: was it wrong for the lower court to (1) apply the principle of prematurity to a Charter claim, and (2) find the administrative (CRA) process was an effective way for MAC’s concerns to be addressed.

Issue One: Does the Principle of Prematurity Apply to Charter Claims?

The lower court held that prematurity has little to do with the technical form or type of court case than with the appropriate use of judicial resources. The ONCA agreed. It affirmed that courts can typically manage their own processes as they see fit and have discretion to refuse to decide a case if there is an insufficient record. In this case, the lower court judge “found the factual record … to be preliminary and incomplete.” The ONCA found no error in this decision.

Issue Two: Does the CRA Process Provide an Effective Way for MAC’s Concerns to be Addressed?

The lower court held that MAC needed to go through all the stages of the CRA process and appeals before coming to court, and that this was an effective way for MAC’s concerns to be addressed. The ONCA agreed with the lower court for four reasons:

• CRA had not yet decided whether to impose a penalty and on what grounds it might do so. As such, the reasons for appealing any CRA decision are yet unknown;
• CRA is obliged to consider Charter rights and underlying values in its decisions;
• If a CRA assessment is appealed to the Tax Court, the Tax Court can grant Charter remedies; and
• If a CRA assessment (audit outcome) is appealed to the Tax Court, it does not preclude a separate Charter-based appeal of the audit process to another court.

Findings

The lower court was not wrong to dismiss MAC’s case due to prematurity.

Key Takeaways

First, as we noted in our summary of the lower court decision, even if the government’s process shows some evidence of bias, is long, and/or is potentially costly, courts will not readily intervene until the administrative process is complete.

Second, government decision-makers, CRA included, have an obligation to take into account Charter rights and freedoms. This, of course, includes religious freedom.

Third, a charity may have to go to more than one court to challenge the process and outcome of an audit. Tax penalty assessments are appealed to the Tax Court; however, challenging the audit process itself is not within the Tax Court’s jurisdiction.

Finally, the ONCA only briefly mentioned the lower court judge’s references to a lack of standards or criteria against which to measure the facts of the case. We discussed this at length in an article, Why we need the CRA to publish advancement of religion guidance. Though the lower court judgment raises this important issue, the lack of standards was not central to the grounds of appeal and so it comes as no surprise that it was mentioned only briefly.

For more on the judgment from MAC’s perspective and its response to the decision, see MAC’s July 10 official statement.

The post Court of Appeal Dismisses Charter Challenge of CRA Audit appeared first on CCCC Blogs.

An Ontario court dismissed a Charter challenge of Canada Revenue Agency’s (CRA) Review and Analysis Division (RAD) audit process was dismissed because it was made too early.

You may have seen news releases or heard about a faith-based charity challenging CRA’s audit process. But what did the judgment actually say? Here is a summary of the facts, background and the court findings in Muslim Association of Canada v Attorney General of Canada, 2023 ONSC 5171.

Summary

The Muslim Association of Canada (MAC) brought a Charter challenge against the Canada Revenue Agency (CRA)’s Review and Analysis Division (RAD) for its audit process and decision-making. MAC argued that its Charter rights were violated as a result of a biased process. While “sympathetic to many” of MAC’s arguments, the judge dismissed MAC’s Charter challenge because it was premature. Prematurity means that the administrative process is ongoing. The judge specifically identified final decisions, internal appeals and court appeals available to MAC that should first run their course.

Background

MAC is a registered Canadian charity with 500 members, 1500 volunteers, 22 mosques and community centres, 30 schools; MAC serves more than 150,000 members of the Muslim community across Canada.

CRA regulates registered charities in Canada, including choosing charities for audit and sometimes imposing sanctions, from financial penalties up to revoking charitable status. Audits are conducted by the Compliance Division and RAD. RAD is responsible for preventing terrorist groups from abusing registered charities.

RAD selected MAC for an audit. MAC argued that its Charter freedom of religion, expression, association, and right to equality were infringed by the audit in three specific ways: RAD’s risk-based assessment process was biased, RAD’s Audit Referral Analysis relies on highly questionable sources, RAD’s Audit and resulting Administrative Fairness Letter profoundly misunderstands Islam.

Issues & Analysis

RAD’s Risk-Based Assessment

MAC argued that RAD’s risk-based assessment process is biased because it disproportionately selects Muslim charities for audit and revocation and is based on publications that unfairly characterize and target Muslim charities.

The judge reviewed three publications that “identify the risk of terrorist financing as foreign, and that violent Islamist extremism is the leading threat” [24]. But this alone did not amount to a Charter violation. No party presented evidence to show that the risk is not, in fact, foreign and that violent Islamist extremism was not, in fact, the leading threat.

Further, the fact that 12 of 14 RAD initiated revocations were of Muslim charities did not mean CRA unfairly targets Muslim charities. The judge had no information about the 12 charities that were revoked, how those grounds compare to grounds in CRA guidance, CRA, policy or to non-Muslim charities [25].

RAD’s Audit Referral Analysis

MAC argued that RAD’s Audit Referral Analysis referenced highly questionable sources, cited sources that promoted conspiracy theories, and individuals whose public comments are racist and Islamophobic.

The judge agreed that there were very concerning elements within RAD’s Audit Referral Analysis. For example, the fact that a MAC donor also gave to illegal causes does not mean that MAC itself is involved in illegal causes.

However, “the quality of information needed to justify an investigation is substantially lower than the quality of evidence needed to make findings” or impose sanctions [36]. The judge had no information about the standards RAD must meet to justify starting an investigation or at what point starting an investigation could amount to a Charter breach [37].

RAD’s Audit & Administrative Fairness Letter

MAC argued that RAD’s Audit (and resulting Administrative Fairness Letter, which sets out the detailed audit findings) improperly preferred documentary evidence over interview statements from MAC’s representatives, confused the religious philosophy of the Muslim Brotherhood with the political ideology of the party with the same name, and narrowly interpreted what activities can be incidental and ancillary to the purpose of advancing religion.

The judge did not find evidence in the record to show that RAD’s preference for documentary evidence was based on a belief that Muslims are “inherently unreliable” – it is a common litigation practice to prefer documents over contradictory statements.

In contrast, the judge expressed “serious concerns” with RAD’s inferences about former MAC directors advising candidates in the 2012 Egyptian election, noting that just because a political party may adopt statements similar to those of a charity, or if a charity made statements similar to those made by a political party, that alone does not justify revocation [50].

Also problematic was RAD’s characterization of “youth social activities” and “unstructured social or recreational activities” as not incidental or ancillary to advancing religion. RAD specifically identified a “large youth Centre … [with] ping-pong, football and air hockey tables, a series of sofas, and a television. In one corner there is a play mat with toys for smaller children” [51]. The judge stated that “providing a forum for community and social cohesion is incidental to any religious organization” and that religious organizations “must be able to offer some sense of community and enjoyment that goes beyond religious doctrine” [53].

Is the Charter Challenge Premature?

Ultimately, the issue of prematurity decided the outcome of this case.

Prematurity means that unless there are exceptional circumstances, a court will not hear a matter if it is part of “an ongoing administrative process” [57]. In this case, a number of steps were still available to MAC:

• Respond to the Administrative Fairness Letter
• Engage in dialogue with CRA
• Appeal to CRA’s Appeal Branch (if final decision unsatisfactory)
• Appeal further to Tax Court of Canada regarding financial penalties
• Appeal further to the Federal Court of Appeal regarding revocation

The judge rejected MAC’s argument that its case was different because it raised a Charter issue, finding that prematurity applies regardless of the “technical form” the court case may take [81]. In this case it was the “lack of a final [CRA] decision and the absence of benchmarks against which to measure CRA’s conduct” that resulted in the application being dismissed as premature [95].

Additional Comments

Even though the case was dismissed, the judge was careful to say that none of his findings were “intended to be binding on any future court” and should not be used to prevent MAC from raising the same issues in a future challenge [95].

Findings

The Superior Court dismissed MAC’s Charter challenge because it was premature. CRA’s administrative process needed to finish before MAC brought its challenge to a court.

Key Takeaways

There are a variety of interesting and relevant parts to this decision:

1. Even if the government’s process shows some evidence of bias, is long, and costly, a court will not intervene until the administrative process is complete.
2. It appears that the government’s definition of advancing religion may be unnecessarily narrow, reinforcing the need for three things:
   • CRA’s Advancement of Religion guidance to be published;
   • Clarity on the definition and scope of Advancement of Religion that is used in compliance and audit processes; and,
   • That advancement of religion be properly understood as far more broad than mere theological instruction;
3. There is a lack of publicly available standards in these processes, and/or a lack of standards presented in the evidence before the court.

The post Court Decision: Don’t Make Charter Claims Too Early appeared first on CCCC Blogs.

CCCC agrees that dishonesty is wrong but is concerned about the significant and serious issues this proposal raises – issues that would impact the entire charitable sector. Over the past year we’ve written several letters to Cabinet Ministers about this proposal, expressing concerns also shared by others in the charitable sector.

We’ve written again to the Minister of Finance by way of an open letter. This open letter reiterates a few of our key concerns and makes specific recommendations. The full text of the letter is below.

You can also watch a video interview between Karen Stiller at The EFC and Deina Warren of the CCCC as they discuss why Canadians need to be aware of these recent challenges to charitable status.

Open Letter to the Minister of Finance: Full Text

Dear Hon. Minister Freeland,

We understand that the Prime Minister’s mandate letter instructs you, as the Deputy Prime Minister and Minister of Finance, to introduce amendments to  the Income Tax Act (“ITA”) in order to “make anti-abortion organizations that provide dishonest counselling to pregnant women about their rights and options ineligible for charitable status” (“Mandate Letters”).

The Canadian Centre for Christian Charities (CCCC) believes in a transparent, accountable, and effective charitable sector. To be abundantly clear, as a Christian organization, CCCC agrees that dishonesty is wrong. We do not and would not support charities that conduct their activities in dishonest ways, regardless of their charitable purposes or objectives.

However, the proposal raises many significant and serious issues that would impact the entire charitable sector. Since we first raised concerns about this matter in our letter of November 24, 2021, we have asked for the government to engage stakeholders such as CCCC on this matter and have continued to make ourselves available for collaborative discussions about the proposed ITA amendments.

Unfortunately, we have not been taken up on our offer, nor have we received any reply that addresses this issue.

In the absence of an opportunity for collaborative discussion, we write this open letter to reiterate a few of our key concerns with the government’s proposal and to make specific recommendations.

Concerns

Concern #1: Politicizing charitable status

The Mandate Letters do not, on their face, seek to address “dishonest counselling” generally, but only that which is allegedly provided by organizations with a certain perspective. By singling out a subset of charities based on a position or beliefs about a particular issue, the proposal appears to be motivated solely by political considerations. As such, it is an unwarranted politicization of charitable status that puts all charities at risk.

Concern #2: Long-term Impact

If an organization’s charitable status is at risk simply because its views or beliefs are different than those of the government, all charities are at risk. It means that every time the government adopts a new view or political priority, or any time a new government is elected, charitable status for specific groups could be in jeopardy and charities may be singled out for additional monitoring or audits simply because they hold different views than the government.

Concern #3: Lack of Data

The Mandate Letters are troubling because of their vague assertions and unproven assumptions of dishonesty toward a specific subset of charities. The government must (a) clearly define what it means by the terms “dishonest,” “dishonest counselling,” and “anti-abortion organizations,” and (b) substantiate the basis for these allegations with objective data that would justify such drastic action as making organizations ineligible for charitable status.

Concern #4: Jeopardizes A Diverse Charitable Sector

Canada is a diverse and pluralistic nation. Its diversity is represented in many ways, including through the diversity of its charitable organizations. When it comes to all matters of conscience, belief, and non-belief it is incumbent on the government to neither “favour nor hinder any particular belief, and the same holds true for non-belief”(Mouvement laïque québécois v Saguenay (City), 2015 SCC 16 at para 72 [Saguenay]). It is very dangerous territory when a government wades into debates over matters of opinion, even those that are strongly held. One only need recall the scrutiny environmental charities endured, both federally and provincially, to see the danger of characterizing an opinion as “dishonest” simply because a government may disagree.

Concern #5: Charter Infringements

This proposal raises many potential Charter infringements. Here we highlight only two.

Freedom of expression ensures that everyone can express their thoughts, opinions, and beliefs, however unpopular or contrary to the mainstream (Irwin Toy Ltd. V Quebec (Attorney General), [1989]1 SCR 927at 968). Freedom to fully and openly express views on social and political issues is fundamental to democracy and therefore to all other Charter rights and freedoms. Restrictions that touch the core of social and political issues raise concerns about the “dangers inherent in state censorship of such debate” (R. v. Keegstra, [1990] 3 SCR 697 at 849).

Freedom of religion means the government must preserve a neutral public space where there is “true freedom to believe or not to believe.” Neutrality does not mean “the homogenization of private players in that space.” Rather, neutral public spaces “preserve and promote the multicultural heritage of Canadian society” (Saguenay at para 74). As one author has put it, “the state should be secular so that citizens do not have to be” (Paul Marshall, Institutional Religious Freedom: An Overview and Defense, Religions 12(5):365 at p 20, citing Cécile Laborde, Liberalism’s Religion (Cambridge: Harvard University Press) at 125.).

Recommendations

Recommendation #1: Existing Tools Are Sufficient

Canada Revenue Agency (CRA) has substantial tools at its disposal to address fraudulent actors and dishonest reporting that rightly fall within the parameters of the ITA – we encourage the government to review the robust compliance mechanisms currently available to CRA.

For example, CRA can review whether a charity’s activities align with the activities and purposes it identified during the registration process. This is a well-established, education-first, and procedurally fair process. Charities engaging in conduct that falls outside the scope of their approved purposes and activities would rightly merit scrutiny.

Further, dishonesty is already addressed in the ITA. Charities that make false statements in circumstances that amount to culpable conduct (s 149.1(4.1)(c), 168(1)(d) ITA) can lose charitable registration. Similarly, charities are prohibited from having directors, trustees, officers or like officials who, among other things, have been convicted of crimes involving financial dishonesty (s 149.1(1)).

These are just a few examples of how CRA ensures charities are operating in compliance with legal and regulatory requirements. If CRA’s existing tools are inadequate, the government must clearly state how and why these tools are insufficient.

Recommendation #2: Disclose Data

Decisions impacting the charitable sector should be evidence-based. As the Special Senate Committee on the Charitable Sector emphasized in its report, Catalyst for Change, data is necessary “to support the evidence base for decisions” within the sector. Similarly, the Advisory Committee on the Charitable Sector Data Working Group is focusing its work to support the “Government’s capacity to make evidence-based decisions on the issues and priorities of the sector.”

Changes that could implicate charitable registration are serious and significant. Any such changes must be evidence-based. We would therefore recommend that the government disclose the data on which it is relying for its proposed changes.

Conclusion

Should the government choose to push forward despite these concerns, we expect it will first demonstrate how any change would, at minimum, meet a variety of prerequisites such as transparency in purpose, legislative authority for its use, Charter compliance, alignment with CRA’s education-first compliance approach, procedural fairness, etc.

Nonetheless, we trust that, given the concerns about politicizing charitable status shared broadly across the charitable sector, and the existing compliance mechanisms available to CRA, the policy proposal set out in the Mandate Letters will not be pursued.

As always, CCCC remains available and willing to participate in meaningful and collaborative discussions on this issue. We look forward to hearing from and working with you.

Sincerely,

Canadian Centre for Christian Charities

Interview with The EFC

The post Charitable Status: Open Letter to the Minister of Finance appeared first on CCCC Blogs.

The Bottom Line: CSJ Applicants Successful, Awarded Costs

Two religious organizations – BCM International and Redeemer University – successfully challenged their 2019 Canada Summer Jobs rejections. In both cases the Federal Court held that the government process was unfair to the applicant organizations and that alone would have been sufficient to find in their favour. But the Court went further in the BCM decision and found the denial unreasonable. Because the issue could be decided on procedural grounds, the Court did not make a decision on the various Charter claims.

In terms of a remedy, there was no option to send the applications back for re-assessment. Instead, the Court issued declarations that the government breached its procedural fairness obligations and awarded costs to the applicants.

The Procedure Was Unfair

An administrative decision maker has a duty of fairness. What fairness demands will depend on the facts of specific circumstances. Procedural fairness ensures that decisions are made in a fair and open procedure, knowing what the issue is (e.g. “the case to be met”), with an opportunity for participation – providing evidence, putting forward views – and having it all properly considered by the decision maker.

In both cases, the procedure was unfair. BCM was not given notice of the issues and was not given a chance to provide evidence. It could not have known it was going to be deemed “ineligible because it allegedly discriminates on the basis of prohibited grounds.”

Similarly, Redeemer was not given notice of the case to be met or an opportunity to provide relevant evidence. Nothing in the Minister’s letter shows the Minister believed Redeemer unlawfully discriminated or that the Minister had any issue with Redeemer’s policies. The Court held that the letter “was not … a genuine attempt to seek clarification or further information. […] Sending the letter was simply going through the motions to appear to be fair, not an exercise in fairness itself.”

The BCM Denial Was Unreasonable

For BCM, the Minister never actually assessed whether the project discriminated contrary to applicable laws. In “an after-the-fact attempt at justifying the decision” the government contended that a 2018 BCM summer camp staff application asked employees to divulge their beliefs about sexuality. According to the government, this was sufficient to raise concerns about BCM discriminating.

The Court disagreed. It found there was nothing in the record to show this was the basis for excluding BCM. And if there had been, it would “clearly engage BCM’s Charter interests.”  The decision did not show how BCM purportedly discriminates and it was unreasonable for the Minister to reject its application.

The Charter Claims

Even though the Charter issues weren’t addressed, one of the two judgments made an important comment: just because it wasn’t necessary to make a decision on the Charter questions, the government “should take no comfort from this conclusion.” Why? There was no evidence that they had “made any overt attempt” to consider the organization’s religious freedom, freedom of expression or freedom of association. The Court gave what appears to be a caution to the government, noting that

…should it be established in another case that officials discriminated in administering funding programs against faith-based institutions because of the sincerely held religious beliefs of their community, a finding of a Charter violation may well result. Such institutions must be treated not just with procedural fairness but also with respect for their Charter-protected rights.

This pair of decisions brings great news for religious CSJ applicants. The Court set out how procedural fairness standards apply in the CSJ context to ensure fair and reasonable decisions moving forward. This requires transparency in the decision-making process, an opportunity to provide relevant evidence, and a decision that shows the government actually assessed whether projects discriminate based on applicable laws by clearly indicating how the applicant discriminates.

CSJ Concerns Vindicated

CCCC is pleased to see this positive outcome. After many years of speaking out on CSJ issues through blogs, op-eds, academic papers, meeting with political leaders, and coordinating with other organizations to collectively advocate, CCCC welcomes these court decisions. They affirm the CSJ application process was, in these cases, unfair. The decisions bring a measure of justice and vindication to religious CSJ applicants and sets clear expectations for fairness in the future.

Both decisions are available online: BCM International Canada Inc. v Canada (Employment, Workforce Development and Labour), 2021 FC 687 and Redeemer University College v Canada (Employment, Workforce Development and Labour), 2021 FC 686.

We’ll post more on the decisions and their significance – stay tuned!

The post A Win for Religious Organizations Challenging Canada Summer Job Rejections appeared first on CCCC Blogs.

With severe restrictions on liberty that are in a constant state of flux, it’s not surprising to find a lot of people wondering “what about our Charter rights?” In this post, we’re going to look at the Charter and how it works: what rights it protects, and how courts consider Charter rights claims.

We’ve created a space in The Green for Christian leaders who want to talk about these issues – pandemic restrictions, religious freedom, conflicting opinions, uncertainty. Share your thoughts in a space where people are committed to listening well and respecting each other. Please join in!

Now, as you get started with Charter Rights 101, I’ll warn you in advance that this post is longer than usual, so you’re going need a few minutes.

Protected Rights

The Charter is part of our constitution. As a constitutional document it is ‘supreme’ in that all other laws must be consistent with the Charter. And while our constitution – and Charter – are Canada’s ‘supreme’ documents, the Charter actually begins with a preamble recognizing that Canada is “founded on principles that recognize the supremacy of God and the rule of law.” But before you start planning out a religious freedom claim with this statement in mind, you should know that the Supreme Court of Canada explains it as simply being an articulation of the “political theory on which the Charter’s protections are based.”

What are those protections? The Charter protects seven broad categories of rights:

• Fundamental freedoms: freedom of conscience and religion; thought, belief, opinion and expression; peaceful assembly; and association.
• Democratic rights: the right to vote, a five-year maximum term for legislative bodies (with exceptions for war, invasion or insurrection) and a minimum once-per-12 months meeting of legislative bodies.
• Mobility rights: citizens have the right to enter, remain in or leave Canada; to move from province to province and to look for work in any province.
• Legal rights: apply most directly to interactions with the justice system and include rights like knowing why you’re being arrested, the right to counsel, to not be arbitrarily detained, to be protected against unreasonable searches, to be tried within a reasonable period of time, and to the rights of life, liberty and security of the person.
• Equality rights: provide for equal protection and benefit of the law without discrimination on the basis of certain, listed (and unlisted but added through court decisions) characteristics like race, colour, religion, sex, disability.
• Language rights: entrench English and French as the official languages of Canada. Related, citizens have the right for their children to be educated in the minority language in a province.

Application of Rights

The Charter applies to the federal and provincial governments. It doesn’t apply to your neighbour. “Government” includes legislation, direct government actors, and government actors by virtue of legislative control/authority. If the government decided to close religious private schools but not public schools and not other private schools, that would raise Charter claims. If your neighbour vehemently opposes religious schools, thinks they should all be permanently closed and publicly promotes that view, that would not raise a Charter claim.  

It also doesn’t usually apply to private entities.* Business owners, non-government service providers and employers are not obliged to adhere to the Charter. They are obliged to follow human rights codes. These codes or acts often provide similar protections and are usually informed by how we understand Charter rights, but the general rule is that you can’t make a Charter rights claim against a non-government entity.

*There are some grey, “middle ground” areas. If an entity exercises government functions or implements government programs, the Charter would apply. It’s a context-specific question that looks at the nature of the activity to decide whether it is truly governmental in nature. For example, the Charter has not been applied to a university’s mandatory retirement policy, but has been applied to a university’s regulation of freedom of expression by students on university grounds.

Claiming Rights

Whoever is claiming a Charter right has to prove that the right has been infringed. For example, a religious freedom claimant  needs to show that (1) she sincerely believes in a belief or practice that has a nexus with religion and (2) the law or rule interferes with her ability to act in accordance with her beliefs in a way that is more than trivial or insubstantial. That means the beliefs or practice must reasonably or actually be threatened.

Other rights have other tests. The test for an infringement of religious freedom is not the same as, for example, the test for expression or equality.

But just proving an infringement doesn’t end the analysis. If the right has been infringed, the obligation (or “onus”) shifts to the government to try and show that the infringement is justified. This is necessary because no right is – or can be – absolute.

Justifying Rights Infringements

Section 1 of the Charter allows Charter rights to be infringed when the limits are “prescribed by law” and “can be demonstrably justified in a free and democratic society.”

What does that mean? In a 1986 decision known as Oakes, the Supreme Court of Canada set out a test to practically apply section 1 and figure out whether rights infringements can be justified. The Oakes test has a few parts and we’ll quickly walk through each (volumes could be written on each component, so what follows here is only an overview!).

Step One: Is the limit prescribed by law?

What does it mean for a limit to be prescribed by law? This part of the test basically asks first, whether the limit is authorized by law, as opposed to being arbitrary; and second, whether the limit is precise, accessible, and clear enough so that people can regulate their conduct.

This isn’t a high hurdle to pass and to fail the law or rule limiting the right would have to be so obscure that it is “incapable of interpretation with any degree of precision.”

Step Two: Is the limit reasonable?

This step has a number of sub-steps.

Is the objective pressing and substantial?

This asks whether the objective of the law or rule is sufficiently important to justify overriding a constitutionally protected right or freedom. At this stage the consequences aren’t yet taken into account. It simply asks what the law is trying to accomplish and could that be important enough that rights would need to acquiesce.

Is the limit rationally connected to the objective?

Another way to phrase this is whether the law is carefully designed to achieve the objective (which is pressing and substantial). There must be a causal connection between the infringement and the benefit sought, asking whether the rights-limiting measure can further the objective.

Is the limit minimally impairing?

Another way to phrase this is whether the law impairs the Charter right as little as possible. It doesn’t have to be perfect, but the government would have to provide an explanation if a significantly less intrusive and equally effective measure was not chosen.

Is there proportionality?

Another way to phrase this is whether the overall effect of the law on the claimants is disproportionate to the objective. Is the harm from infringing the right outweighed by the benefits associated with the rule in a proportional way?

Claiming & Justifying Rights Infringements: An Example

Let’s take the steps outlined above and go through them in a real case. In Taylor v Newfoundland and Labrador, Kim Taylor, along with the Canadian Civil Liberties Association (CCLA), challenged COVID-19 related travel bans.

Section s 28(1)(h) of the Public Health Protection and Promotion Act (PHPPA) authorizes the Chief Medical Officer to restrict travel to the province. In April 2020, a “Special Measures Order” was issued that limited entry to residents, asymptomatic workers and those in extenuating circumstances, with a second “Special Measures Order” modestly expanding the list of circumstances considered extenuating.

Taylor sought an exemption after her mother unexpectedly passed away. She made arrangements to self-isolate for 14 days after arriving in Newfoundland from her residence in Halifax, Nova Scotia, and for the funeral to take place after that period. Her request was denied. She submitted a request for reconsideration, and she was ultimately granted entry, but only after the funeral had taken place.

In the court challenge, Taylor argued two things. First, that s 28(1)(h) of the PHPPA was outside the province’s scope of constitutional authority and that by restricting all travel it violated her s 6 Charter right to mobility. Second, that the province’s decision to deny her entry to attend her mother’s funeral violated her s 7 Charter rights to life, liberty and security of the person. The CCLA also tried to challenge investigative and enforcement provisions but the court did not give CCLA standing (the right to) challenge those additional sections.

Claiming the Right

After reviewing the history of s 6 mobility rights in Canadian court decisions, the court in this case found the claim was to “a simple right of mobility” to travel within Canada and that Taylor’s right was infringed when she was denied entry. Section 6 is a “right of action,” the “right to choose,” the “right to travel for livelihood or residence,” the “right to come and go” as one pleases. Section 6 does not limit mobility rights to a certain part of Canada or to someone’s province of residence. And, the court asked rhetorically, how does someone exercise this right “without the ability to traverse provincial and territorial boundaries?”

Section 7 of the Charter protects the life, liberty and security of the person. Underlying liberty and security of the person is a concern for the protection of autonomy and dignity; the right to make fundamental personal choices free from state interference.

The court disagreed that Taylor’s s 7 rights were infringed because the rights usually protected under this section “are qualitatively different” than the choice to attend a family funeral. Taylor was unable to demonstrate an infringement of her s 7 rights.

Justifying the Infringement

In this case, the s 7 rights didn’t move on to the justification stage because the court disagreed they were violated. The s 6 rights were violated, and the question then became whether that violation was justified.

Step One: Is the limit prescribed by law?

The PHHPA is a piece of legislation, which makes the answer here an easy “yes”.

Step Two: Is the limit reasonable?

Is the objective pressing and substantial?

The court held that the objective of the travel ban was “to prevent the spread of COVID-19 in the province” and that “the existence of COVID-19 as a public health emergency is beyond question.”

Is the limit rationally connected to the objective?

Taylor argued that the government failed to show why the requirement for self-isolation was insufficient to address its concern, noting that the government had “already been successful at flattening the curve.” The government used modeling to justify its policy and decision. While the government is supposed to bear the burden of proof to justify rights limitations, the court commented that “no evidence has been adduced to counter [the government’s] conclusion” or question the modeling methodology. Based on the uncontradicted evidence, the court held it was “beyond argument” that the restriction was an effective means to meet the objective.

Is the minimally impairing?

The court accepted that a “pandemic is not a magic wand which can be waved to make constitutional rights disappear” or immunize a decision of the Chief Medical Officer from review. However, the court also found that even though other measures were taken, based on the evidence presented, none of them were effective substitutes for the travel ban. The travel ban was “integral” to “wrestling this disease into submission” and it satisfied “the least drastic means component” of the test.

Is there proportionality?

In a perfunctory analysis on this point, the court found “while restrictions on personal travel may cause mental anguish to some, and certainly did so in the case of Ms. Taylor, the collective benefit to the population as a whole must prevail.”

In the end, the government succeeded in justifying the rights violation. Ms. Taylor’s application was dismissed.

Conclusion

And that, patient readers, in a nutshell is how a real-life Charter rights claim was analyzed. What can we learn? Evidence is exceedingly important, and even though a claimant doesn’t bear the burden of disproving a justification, leaving evidence uncontradicted will not help your case.

Charter challenges are always, well, a challenge. But from this example we learn that in the context of COVID-19 claimants have an even greater uphill battle. It may be clear that certain Charter rights, from association to mobility, are infringed by government regulations. On the question of religious freedom under COVID restrictions, see Professor Brian Bird’s recent column in the Vancouver Sun. Establishing an infringement is only the first step in making a Charter claim – it doesn’t necessarily mean that the courts will grant a remedy or overturn restrictions. The more difficult task is to demonstrate whether the infringement is justified in a free and democratic society given the deference of courts to public health officials, and the weight given to government objectives during the pandemic.

Join the Conversation!

We would love to hear how you are wrestling with the questions around pandemic restrictions and religious freedoms. And we would love to hear how you are continuing to deliver the Gospel during pandemic restrictions. 

We’ve created a space in The Green for Christian leaders who are willing to talk to each other, listen to each other, and develop a respectful and stimulating dialogue. Please joins us! We would love to hear your questions and have you share your ideas.

The post Charter Rights 101 appeared first on CCCC Blogs.

The federal government is asking for your feedback about expanding access to “medical assistance in dying” (MAID), a euphemism for euthanasia or assisted suicide. Whichever term you choose, we are talking about the intentional killing of human beings, a matter of serious concern for the Christian.

Why now? What has prompted the online questionnaire? According to the website there are two main drivers: first, the Truchon v Attorney General of Canada[1]decision from September 2019; and second, the upcoming MAID review this summer.

In Truchon the Quebec Superior Court heard a constitutional challenge to the requirement that death be reasonably foreseeable to be eligible for MAID. That is only one of several criteria a patient must meet in order to be eligible. Currently, the patient must:

• Be at least 18 years old
• Have a grievous and irremediable medical condition (further defined as summarized below)
• Have made a voluntary request
• Give informed consent, even after being told about alternative options, including palliative care

It is the further definition of a “grievous and irremediable” condition that requires reasonable foreseeability of death. In addition, the patient must:

• Have a serious and incurable illness, disease or disability
• Be in an advanced state of irreversible decline in capability
• Experience, as a result of the illness, disease or disability, enduring physical or psychological suffering that is intolerable to them and that cannot be relieved under conditions he or she deems acceptable

The court declared reasonable foreseeability of death an unconstitutional requirement.

Although the court claimed to “fully understand” warnings about the danger related to social normalization of MAID and the societal perception of the value of people with physical or intellectual disabilities, it  concluded that “we cannot, in the name of protecting certain persons from themselves or of socially affirming the value of life, deny medical assistance in dying” to entire groups of people.[2]

The court also held that the negative effects of requiring reasonable foreseeability of death were “by far greater than the expected benefits to society as a whole” if a foreseeable death was not required. That requirement was held to violate the Charter, principles of self-determination, dignity and autonomy. To hold otherwise would be “forcing” people to “continue a life that no longer has any meaning.”[3]

I pause here to note that even as the Quebec court held that “forcing” people to live offends the Charter, an Ontario court last year held that forcing physicians to participate by referring patients for MAID does not offend the Charter.[4] This is a dangerous convergence: expanding state-authorized euthanasia while at the same time restricting conscientious objection.

Instead of appealing the decision (which it could have done), the federal government chose to let the decision stand. The ruling, and the elimination of reasonable foreseeability, will come into effect on March 11, 2020. As noted on the questionnaire website, “while this ruling only applies in the province of Quebec, the Government of Canada has accepted the ruling and has committed to changing the MAID law for the whole country.”

In what I think is a key phrase about the context and objectives of the questionnaire, the site explains: “updating Canada’s MAID law will expand eligibility for MAID beyond people who are nearing the end of life, and could possibly result in other changes.”

So, while this consultation is important, the government clearly made its decision about expanding MAID when it refused to appeal the Truchon decision. Now it is not a matter of whether eligibility will be expanded, but how far and what “safeguards” will be implemented.

Those questions will be essential for the MAID review this summer. The review is a requirement of the 2016 changes to the Criminal Code that created an exemption for MAID, as described above. It is important to observe that with this single legislative change, what was a criminal offence was transformed into a legal act; proponents would go further and say that MAID is not only legal, but moral, ethical, and good.

In terms of the review, the 2016 amendments directed one or more independent reviews to consider MAID requests for:

• Mature minors – children who are considered mature enough to consent to their own medical treatment
• Advance requests – where at the time of death the patient would not have the capacity to consent
• Mental illness – where mental illness is the sole underlying medical condition

The Canadian Council of Academies has already completed a review of these topics and released three final reports in December 2018. Each of these justify a lengthy discussion on their own, but that will have to await a future post.

As one of my CCCC’s colleagues observed, it is heartbreaking to see courts reflect and affirm the notion that life is meaningless for people with disability or illness; that suffering is meaningless; that suffering is to be avoided at all costs even if it undermines the inherent worth of each human being. It is also heartbreaking to see that we are quickly moving so quickly to expand MAID.

Dr. Kerry Bowman, a Clinical Ethicist at Mount Sinai Hospital who is generally supportive of MAID, recently expressed concern in a media interview that, “the day will come when we’ll see a person in a wheelchair, with whatever disability, and rather than think, ‘Can I be of any help to them?’ we’re going to think, ‘Why would they do that to other people and to society? Why wouldn’t that person move on?’”

As Christians we know that our worth is not contingent on utilitarian measures of what we can contribute, how our physical bodies function, our degree of happiness, or any other human metric we may develop. It is based on the fact that we are created in the image of God. We also recognize that Christ suffered for us; it is by his wounds we are healed. Our nation needs a message of healing and hope more than ever. Make your voice heard – complete the questionnaire and take the opportunity to provide important feedback about the value of life and the concerns you have.

The MAID questionnaire is open until Monday, January 27, 2020 at 11:59 p.m. (PST).

If you’re looking for more, here are a few additional resources to inform you on the issue of MAID, its expansion, conscience rights, and how you can engage on this issue beyond the questionnaire:

Barry Bussey, “The Right of Religious Hospitals to Refuse Physician-Assisted Suicide” (2018) 85 SCLR (2d)

Derek Ross and Deina Warren, “Religious Equality: Restoring Section 15’s Hollowed Ground” (2019) 91 SCLR (2d)

Barry Bussey, “Getting Serious About Conscience Rights”

Christian Legal Fellowship, Background Paper “Euthanasia and Physician-Assisted Suicide in the Case of Mature Minors, Advance Requests, and Mental Illness: Legal, Ethical, Cultural, and Clinical Considerations” (6 October 2017)

Christian Legal Fellowship, Submission to the Canadian Council of Academies on Medical Assistance in Dying in Canada (6 October 2017)

Evangelical Fellowship of Canada, Submission to the Canadian Council of Academies on Medical Assistance in Dying in Canada (3 October 2017)

Evangelical Fellowship of Canada, Briefing Notes on Euthanasia and Assisted Suicide (April 2016)

Evangelical Fellowship of Canada, sample letter to the Minister of Justice

[1] 2019 QCCS 3792

[2] Ibid, at paras 304-310

[3] Ibid, at paras 625-638

[4] For more on the CMDS v CPSO decision, see my Horizons column CCCC Bulletin (2019:3)

The post Euthanasia: Tell the Government what You Think appeared first on CCCC Blogs.

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!

The post Atheist Church Denied Registered Charitable Status appeared first on CCCC Blogs.

After a gruelling period of legal wrangling that involved multiple court hearings in British Columbia, Ontario, and Nova Scotia and that culminated at the Supreme Court of Canada (SCC), TWU has been forced to remove the mandatory requirement that students sign its Community Covenant in order to avoid the legal harassment of professional accrediting bodies such as the law societies. However, if you listen to some law professors and legal advocates, that’s still not good enough – they are now wanting to move the goal posts by insisting further changes.

After all, the Covenant is an anachronistic throwback to a time when religious institutions were, well, religious institutions. This is the twenty-first century, and religious “pluralism” and “diversity” now mean we must all have the same views. We are so much more tolerant than we once were – so tolerant that any difference or dissent is intolerable.

The evangelical Christian community has seen first-hand what it looks like when the promise of a Charter right to religious freedom is undermined by the very profession that claims to be guardians of minority rights. Consider just how well TWU was treated by the legal system.

In 2001, the SCC ruled that TWU’s Charter right was denied when its education degree was not accredited because of its Covenant. Rather than recognizing the 2001 decision as a binding precedent, as is the norm, the 2018 Court barely mentioned it. That was then. This is now.

TWU is a private entity and therefore should be protected by the Charter, but the SCC said that the law societies could self-define the “public interest,” so it was reasonable for them to refuse TWU accreditation because the Covenant was “degrading and disrespectful”.

TWU’s Covenant does not violate human rights legislation, but the SCC devised its own test, saying the Covenant violates the ambiguous and undefined notion of “Charter values” (which dissenting Justices Côté and Brown condemned as the “idiosyncrasies of the judicial mind”). In other words, the SCC’s treatment of TWU no longer depends on the Charter or the rule of law but on the anti-religious sentiments of the legal elite. I’ve spoken before about the growing revolution in the legal community against the law’s traditional accommodation of religion. Religious communities who advocate the traditional marriage of one man and one woman are, at worst, hateful and at best, passé – their beliefs are not on the “right side of history.”

Notice how the Charter of Rights and Freedoms, a prior SCC decision, and exemption from human rights legislation are no longer adequate legal currency to ensure that religious freedom in this case exists in Canada. Now that TWU has removed the mandatory nature of the Covenant for students, the goal post has moved yet again. There is a call for an added dimension: remove the requirement for faculty and staff. Some are also suggesting having a law school that favours Christian applicants is a problem. It seems the concept of a private, religious school is foreign even though such universities pre-date Confederation in 1867. However, even if TWU were to follow through on these new demands it is highly unlikely that that would be sufficient to satisfy opponents – at least not until TWU is no longer a religious institution but one that mirrors all the other public universities in the country. So, what’s the point of the Charter’s protection of religious freedom?  And, can we really call ourselves a multicultural, plural society if we do not allow the diversity that Christian universities bring?

Indeed, the legal revolutionaries are insisting that any religious university that wishes to have a law school must pass the ultimate test: is it in sync with the prevailing views of a legal community which has come to accept the “rule of justice” rather than the “rule of law”?  “Justice” in this new era is defined on a case-by-case basis as determined by the academic and the assumed popular opinions of the day. We should be under no illusions: current legal academics have the monopoly on legal education and they are loathe to allow space for a Christian university. They want it all.  And so far, they have it all. TWU represents a threat to their hegemony.

If ever we need a Christian law school, it is now. We have seen the extent to which the legal elites maligned the Christian community in the TWU law school case. The profession is clearly in need of more young lawyers who respect and understand religious diversity and civil debate. Should TWU, that irritating crack in the legal ice rink, file another application for their law school, we will see just how tolerant the legal community is. I hope TWU does file a new application (and, if they don’t, we need another Christian university to take up the cause).

One way or another it is time that the legal profession recognizes its responsibility in allowing for the full extent of the promise of religious freedom in the Charter. That freedom can only be temporarily frustrated. I am hopeful that eventually Canada will join with the other liberal democracies that practice English Common Law, such as Australia and the United States, and allow Christians to have their law school. That will be a positive move that respects diversity and will encourage open, honest and full debate within the legal academic context as together we all participate in understanding what it means to be a free and democratic society – one that does not keep shifting the goal posts.

The post Shifting Goal Posts appeared first on CCCC Blogs.

Last Friday’s Supreme Court of Canada (SCC) decisions on Trinity Western University call for freedom-loving Canadians to courageously stand up and demand change to legislation governing the law societies in this country.

We need our legislatures to ensure that court decisions that impinge upon or remove the right of freedom of religion are nullified. Critics say religious freedom amounts to the “right to discriminate”. However, it is time that the dissenting decision of Justices Côté and Brown be implemented legislatively to further not discrimination, but accommodation of religion. Their dissent is a reiteration of the right that already exists in our Charter document as the fundamental freedom of “conscience and religion.”

The Supreme Court of Canada limited that right on June 15, and now citizens must demand it be restored.

Read the rest of this article here.

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