RELIGIOUS ORGANIZATIONS UNDER ATTACK?
by: C.Yvonne Chenier, Q.C.
In the past few weeks three or four legal decisions or news items have caught my attention. I do not know if it is a trend or not but it seems that more facets of the operations of religious organizations have been the subject of greater scrutiny in recent months. The following recent cases and events could be the beginnings of a groundswell converging into a greater force to attack organizations that operate on a religious basis.
The Christian Education Assistance Foundation
It has been reported that this Canadian organization is having some of its parents’ donations questioned by the CRA. Some of the parents who donate to this organization, which helps students attend religious schools, have received letters from CRA stating:
“It is CRA’s opinion that the intention of the School Support Program is merely a tax scheme to artificially maximize charitable donation receipts received by parents for private school tuition fees by improperly characterizing tuition payments by parents as grants.”
It may not be what is intended by the CRA but this initiative may cause parents across the country to scrutinize the donations they make to many institutions. My first reaction was if I donate to my local university, should I reconsider whether I should send my daughter to that university so as not to put my charitable tax receipt from the University in jeopardy? Or is it only in the case of a private, perhaps religious setting should one be concerned? In order to alleviate concerns from parents across the land, and those who advise them, some clarity is required from the Canada Revenue Agency as to what they are seeking in this matter. It is obvious that any personal benefit from a charity back to their donors is a no-no as far as the CRA is concerned however where is the line in the sand drawn? Some clarity (an new guidance perhaps) is required or else people will stop making donations to any organizations that they have a personal connection with in fear that years later potentially their tax receipt is denied and they have to pay taxes that they may owe even though their association with the organization may have ended years ago.
Trinity Western University
A well-respected university in British Columbia is proposing a law school be added to its offerings. Trinity Western University has been a registered charity since 1967 and describes its programs to the Canada Revenue Agency in its latest T3010 filing as follows:
“Trinity Western University is an independent Christian liberal arts and sciences university enrolling approximately 4,000 students. TWU offers 43 undergraduate degrees, ranging from the arts, media and culture, business, human kinetics, nursing and education to sciences and the humanities. TWU’s 16 graduate degree programs include counseling psychology, business, theology, linguistics, nursing and leadership, as well as interdisciplinary degrees in english, philosophy and history.”
TWU has a teachers college, a business school and a nursing school among other faculties. The only body that seems to be putting up a road block to the creation of the law school at TWU is the other law schools in Canada who object to the TWU Law School on the basis of its Christian beliefs and views of marriage. The TWU has already had this matter debated in front of the Supreme Court of Canada in the 2001 case Trinity Western University v. British Columbia College of Teachers where their proposed Teachers College was under attack for similar reason. In that case the Supreme Court of Canada emphasized that as long as a post-secondary institution meets accreditation requirements for its discipline and the graduates achieve the requirements for a profession then the school cannot be disqualified just because of its religious belief. It will be interesting to see if the case of their law school ends up going to court or if the other law schools across the country will see the light and perhaps refresh themselves on former Supreme Court of Canada cases where the issue was discussed. The Supreme Court is, after all, as we were taught in law school, the court of final resort.
Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales
Although this is a UK case, there may be foreshadowing for similar cases that may come before our Courts here in Canada. The laws there are a bit different; however the thought process could be quite the same. The Catholic Care case arose out of a situation in the UK where an adoption agency placed children for adoption with a practice of only placing children with adoptive parents who were heterosexual. Same-sex couples were not considered potential adoptive parents. Up until 2008 this practice was acceptable for this organization under UK law. However in 2008 the law changed to make that kind of practice illegal. In the UK at that time charities could apply for an exemption from this general discrimination prohibition if it was made clear that they were just following their “charitable instrument”. In other words, if their Memorandum of Association had the relevant charitable instrument charge making it explicit that they could discriminate in this manner then the organization would be able to do so. To come under the exemption the charity amended its objects to read as follows:
“The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals shall only be provided in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church.”
The Tribunal considering this issue dismissed their attempt to change their Memorandum of Association with the following words:
“The interest of promoting the traditional family on which the Charity relies has not been endorsed by the national authorities. As a result, in the context of assessing whether the Charity has made out a case of objective justification, I think that the view of the Charity that the traditional family should be promoted is not entitled to be given the same degree of weight as if it had been adopted by the national authorities….”
I understand that to mean that if the government says it is not acceptable to do something than quite simply a charitable organization cannot either. A scary thought indeed if you take it to its logical conclusion in Canada where many religious organizations thrive today based on foundations created years ago before the views of society and the laws as they caught up with these views started to change. It could be an interesting time ahead in our courts if issues like the one in the Catholic Care case arise here.
Finally, a recent word from our Supreme Court of Canada – Saskatchewan Human Rights Commission v Whatcott
We have just recently seen a unanimous decision of the Supreme Court of Canada in a case where they had to consider if a distribution of flyers infringed the hatred laws. Specifically they had to consider whether the restriction of distributing hatred material prohibited under s. 14(1)(b) of The Saskatchewan Human Rights Code, infringes s. 2(a) of the Canadian Charter of Rights and Freedoms (freedom of conscience and religion). The answer was yes. Secondly the court had to decide if the infringement is reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms. The Court held that “Section 14(1)(b) is a reasonable limit on freedom of expression and freedom of religion, demonstrably justified in a free and democratic society.”
It is too soon to ponder what this really means for freedom of religion in Canada vis-à-vis Canadian charities as this case did not relate to actions of a charity. However, the very succinct tone of the Canadian Charity of Rights and Freedom discussion by a unanimous Supreme Court of Canada does lead one to believe that when the courts deal with the consideration whether a charity infringing a right is reasonable or not and if so can it be demonstrably justified in a free and democratic society that there will be little or no dissent on the law, it will all be about the facts of the case. Let that be a lesson to all religious charities out there that they need to get their facts in order. Depending on their facts, our Canadian laws could either be seen, as those famous words once said about the Canadian Charter of Rights and Freedoms, either a shield to protect them or a sword to wound them.