{"id":37187,"date":"2023-10-25T17:00:23","date_gmt":"2023-10-25T21:00:23","guid":{"rendered":"https:\/\/www.cccc.org\/news_blogs\/?p=37187"},"modified":"2023-11-14T14:32:48","modified_gmt":"2023-11-14T19:32:48","slug":"court-decision-dont-make-charter-claims-too-early","status":"publish","type":"post","link":"https:\/\/www.cccc.org\/news_blogs\/legal\/2023\/10\/25\/court-decision-dont-make-charter-claims-too-early\/","title":{"rendered":"Court Decision: Don’t Make Charter Claims Too Early"},"content":{"rendered":"\n

UPDATE<\/strong>: this decision has been appealed to the Ontario Court of Appeal. We’ll be sure to keep you posted about any further decisions.<\/p>\n\n\n\n

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

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<\/a><\/em>, 2023 ONSC 5171. <\/p>\n\n\n\n

Summary<\/h2>\n\n\n\n

The Muslim Association of Canada (MAC) brought a Charter <\/em>challenge against the Canada Revenue Agency (CRA)\u2019s Review and Analysis Division (RAD) for its audit process and decision-making. MAC argued that its Charter<\/em> rights were violated as a result of a biased process. While \u201csympathetic to many\u201d of MAC\u2019s arguments, the judge dismissed MAC\u2019s Charter<\/em> 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.<\/p>\n\n\n\n

Background<\/h2>\n\n\n\n

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.<\/p>\n\n\n\n

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.<\/p>\n\n\n\n

RAD selected MAC for an audit. MAC argued that its Charter <\/em>freedom of religion, expression, association, and right to equality were infringed by the audit in three specific ways: RAD\u2019s risk-based assessment process was biased, RAD\u2019s Audit Referral Analysis relies on highly questionable sources, RAD\u2019s Audit and resulting Administrative Fairness Letter profoundly misunderstands Islam.<\/p>\n\n\n\n

Issues & Analysis<\/h2>\n\n\n\n

RAD\u2019s Risk-Based Assessment<\/h3>\n\n\n\n

MAC argued that RAD\u2019s 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.<\/p>\n\n\n\n

The judge reviewed three publications that \u201cidentify the risk of terrorist financing as foreign, and that violent Islamist extremism is the leading threat\u201d [24]. But this alone did not amount to a Charter <\/em>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.<\/p>\n\n\n\n

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].<\/p>\n\n\n\n

RAD\u2019s Audit Referral Analysis<\/h3>\n\n\n\n

MAC argued that RAD\u2019s Audit Referral Analysis referenced highly questionable sources, cited sources that promoted conspiracy theories, and individuals whose public comments are racist and Islamophobic.<\/p>\n\n\n\n

The judge agreed that there were very concerning elements within RAD\u2019s 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.<\/p>\n\n\n\n

However, \u201cthe quality of information needed to justify an investigation is substantially lower than the quality of evidence needed to make findings\u201d 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<\/em> breach [37].<\/p>\n\n\n\n

RAD\u2019s Audit & Administrative Fairness Letter<\/h3>\n\n\n\n

MAC argued that RAD\u2019s Audit (and resulting Administrative Fairness Letter, which sets out the detailed audit findings) improperly preferred documentary evidence over interview statements from MAC\u2019s 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.<\/p>\n\n\n\n

The judge did not find evidence in the record to show that RAD\u2019s preference for documentary evidence was based on a belief that Muslims are \u201cinherently unreliable\u201d \u2013 it is a common litigation practice to prefer documents over contradictory statements.<\/p>\n\n\n\n

In contrast, the judge expressed \u201cserious concerns\u201d with RAD\u2019s 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].<\/p>\n\n\n\n

Also problematic was RAD\u2019s characterization of \u201cyouth social activities\u201d and \u201cunstructured social or recreational activities\u201d as not incidental or ancillary to advancing religion. RAD specifically identified a \u201clarge youth Centre \u2026 [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\u201d [51]. The judge stated that \u201cproviding a forum for community and social cohesion is incidental to any religious organization\u201d and that religious organizations \u201cmust be able to offer some sense of community and enjoyment that goes beyond religious doctrine\u201d [53].<\/p>\n\n\n\n

Is the Charter <\/em>Challenge Premature?<\/h3>\n\n\n\n

Ultimately, the issue of prematurity decided the outcome of this case.<\/p>\n\n\n\n

Prematurity means that unless there are exceptional circumstances, a court will not hear a matter if it is part of \u201can ongoing administrative process\u201d [57]. In this case, a number of steps were still available to MAC:<\/p>\n\n\n\n