Charity, Religion, and the Law
Charity, Religion, and the Law
Next: Freedom to Hate?
There are four categories of “charitable purpose” in order to become eligible for registration as a registered charitable organization in Canada: relief of poverty, advancement of education, advancement of religion, or certain other purposes beneficial to the community in a way the law regards as charitable. [1] For the most part, these four categories are inherited from Great Britain, so there are some crossovers between the two countries. [2]
Hence, once a religion has received recognition from Canada Revenue Agency to be a registered charitable organization, it does not need to engage in other charitable programs – it only needs to advance religion.
However, this does not mean that a religion in Canada can do whatever it wants simply because it is a religion. Canada does not have an overriding “First Amendment” as does the United States.
A very important factor is this: if the organization causes harm, or has practices that are contrary to public policy, then its status will be denied or revoked.
Scientology
An example of this is the refusal of Scientology by the U.K. and Canada (also demonstrates the crossover between the U.K. and Canada. By contrast Scientology has registered charitable status in the U.S. and in Australia):
The test for benefit
Challenging the presumption
Benefit under the first three heads of charity is presumed once an applicant organization establishes at law that the proposed purposes meet the legal requirements to enable such purposes to fall within one or more of those categories. Once an applicant establishes that the purpose or purposes is intended to either relieve poverty, advance education, or advance religion, within the parameters required by law, the presumption arises. The presumption, however, may be nonetheless rebutted by concerns raised.
In their decision on the Church of Scientology, the Charity Commissioners concluded that the presumption in that case was rebutted by a number of circumstances and that they would take a wide view of public benefit and consider a number of different factors, including: the fact that Scientology was a new religion; that there was public concern about Scientology generally; and, that there was expressed judicial concern about some of its practices both in the U.K. and abroad. They rejected the argument that, in order to displace the presumption of public benefit, it must be shown that the gift is detrimental to the community. [Footnote: Decision of the Charity Commissioners made (17 November 1999). Application for Registration as a Charity by the Church of Scientology (England and Wales), supra note 35 at 41]
Guidance regarding harm and public policy can be found within the following CRA publications:
Canada Revenue Agency:
General requirements for charitable registration
Guidance -Reference number -CG-017 – Issued – November 2, 2012
Prohibited or illegal activities (Link)
8. Purposes and activities that are illegal in Canada or contrary to Canadian public policy are prohibited. For more information, see Policy summary CPS-024, Guidelines for registering a charity: Meeting the public benefit test, Guidance CG-002, Canadian registered charities carrying on activities outside Canada, and Guidance CG-004, Using an intermediary to carry on activities within Canada.
Public policy – Summary policy – Date June 9, 2003 – Reference number CSP-P13
Policy statement
The courts have held that an organization is not charitable in law if its activities are contrary to public policy.
Guidelines for registering a charity:
Meeting the public benefit test
Policy statement – Reference number – CPS-024 – Effective date – March 10, 2006
2.0 The fundamentals of charity
Finally, the following other factors would likely prevent an organization from being registered:
the organization is set up for illegal purposes or for purposes that are contrary to public policy
3.0 The test for public benefit –
The “benefit” aspect of the test concerns whether the charitable purpose under consideration is directed towards achieving a universal good that is not harmful to the public.
3.1 The meaning of benefit –
the existence of any harmful impact of the undertaking
3.1.2 Basic requirements
Requirement that there be a net benefit for the public –
The charitable purposes of some organizations may result in a benefit to the public, while at the same time produce some negative effect. Where such a conflict occurs, the public benefit, shown to arise from the charitable purpose, is typically evaluated against any harm that may also arise from the proposed activity. (Footnote) In determining charitable purpose, we are looking to ensure that a substantial net benefit results.
3.2.2 Restricting or focusing benefit to a specific group of beneficiaries
Organizations with purposes that are discriminatory or based on notions of racism, may, depending on the nature of the discriminatory purpose, offend the norms in the Canadian Charter of Rights and Freedoms. They may also be in contravention of the various human rights regimes either federally or provincially, or contrary to public policy as expressed in those constitutional and legislative regimes.
Canadian registered charities carrying out activities outside Canada
Guidance – Reference number – CG-002 – Issued – July 8, 2010
4. What is charitable in Canada and abroad?
The courts have also established that a charity’s purposes and activities must not violate officially declared and implemented Canadian public policy.
4.1 Do charities have to follow the local laws of countries they operate in?
Being aware of local laws and their application will help make sure that the public benefit provided by a charity’s activities is not offset by harm that may result to those carrying on the activities, to the charity’s beneficiaries, or to anyone else.
4.2 What if a charity’s activity puts people at risk?
If a charity or applicant’s activity exposes anyone to the risk of harm, it may affect its charitable status.
If an organization’s activity is likely to result in harm to the charity’s staff, the beneficiaries of its programs, or any other person, this harm is taken into consideration when assessing whether the public benefit test is met.
However, the CRA will usually look at the following types of factors to establish whether a charity is doing enough to evaluate and manage the level of benefit to risk:
the likelihood and nature of harm to anyone delivering the activity, receiving the benefit, or otherwise affected
Public policy dialogue and development activities by charities
Guidance – Reference number – CG-027 – Issued – January 21, 2019
Disseminating opinions – charities may express opinions on matters related to their charitable purposes to participate in developing public policy, as long as they draw on research and evidence and are not contrary to hate speech laws or other legitimate restrictions on freedom of expression.
Parliament has constitutional jurisdiction over charities.
Next: Freedom to Hate?
https://www.canada.ca/en/revenue-agency/services/charities-giving/charities/applying-registration/charitable-purposes.html ↑
See Appendix A – The legal foundation for the common law definition of charity – https://www.canada.ca/en/revenue-agency/services/charities-giving/charities/policies-guidance/policy-statement-024-guidelines-registering-a-charity-meeting-public-benefit-test.html#toc15 ↑