The Advancement of Religion as a Charitable Purpose in an Age of Religious Neutrality

Transcription

1 Oxford Journal of Law and Religion, 2017, 6, doi: /ojlr/rww063 Original article The Advancement of Religion as a Charitable Purpose in an Age of Religious Neutrality Kathryn Chan* ABSTRACT The common law has recognized trusts for the advancement of religion as charitable for as long as it has recognized the concepts of charity and trust. However, the rapid development of a constitutional duty of religious neutrality has left the so-called third head of charity increasingly vulnerable to arguments for its demise. In this article, I address some of the difficult questions raised by the conferral of legal and fiscal privileges on religious charities by (i) clarifying the constitutional parameters within which the validity of the third head of charity will eventually be addressed in Canada, and (ii) considering a instrumentalist justification for charity law s special treatment of the advancement of religion that may be consistent with those parameters. I close with a few comments on an objection that persons of faith may have to my instrumentalist account. 1. INTRODUCTION An uneasy silence presently surrounds the common law authorities on the advancement of religion as a charitable purpose. Since the Charity Commission for England and Wales issued its comprehensive decision on the Church of Scientology s application for charitable registration in 1999, there has been very little judicial or regulatory discussion of the law of charity s third head. 1 The few decisions that have been rendered have dealt with relatively discrete issues: whether an interest-free-mortgage lending scheme advances Biblical principles, 2 whether providing a place of spiritual retreat does the same. 3 The recent case law has not addressed contentious issues * Kathryn Chan, Assistant Professor, University of Victoria Faculty of Law, Victoria, British Columbia, Canada; kmchan@uvic.ca. This research was supported by the Centre for Studies in Religion and Society at the University of Victoria. The author thanks Blake Bromley, Patricia Cochran, Matthew Harding, Howard Kislowicz, Jeremy Webber and Scott Woodcock for their helpful comments, and Ashley MacDonald and Jeremy Henderson for their able research assistance. 1 Canada s charities regulator has been developing a policy on the advancement of religion since at least 2005: Terrance S Carter and Jennifer M Leddy, CRA s Proposed New Guidance on Advancement of Religion as a Charitable Purpose Presentation prepared for Canadian Council of Christian Charities 2009 Conference (29 September 2009) < accessed 30 January Liberty Trust v Charities Commission [2011] 3 NZLR 68 (HC). 3 Fuaran Foundation v Canada Customs and Revenue Agency (2004) FCA 181. VC The Author Published by Oxford University Press. All rights reserved. For Permissions, please journals.permissions@oup.com 112

2 Advancement of Religion in an Age of Religious Neutrality 113 related to the scope of charitable religion, nor the continuing problem as to what is meant in the advancement of religion by the conferment upon society of benefit. 4 The silence has been made more jarring by the clamor surrounding the growing number of international and domestic guarantees of freedom of conscience and religion. 5 In Canada, this clamor is currently focused around a number of important judicial decisions involving section 2(a) of the Canadian Charter of Rights and Freedoms, and its counterpart in Quebec. 6 While the Supreme Court of Canada originally described these provisions as protections against state coercion or compulsion in matters of conscience and faith, the Court s understanding of the interest protected by freedom of conscience and religion has undergone a well-documented shift from liberty to equal respect. 7 One result of this shift has been to expand the ban on state compulsion to include almost any form of state support for a religious practice. 8 The Court reinforced this shift in its recent Mouvement laïque decision, stating that the evolution of Canadian society has given rise to an unwritten duty of religious neutrality on the part of the state. 9 The fulfilment of this duty is assured, the Court has stated, when the state neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever The duty of religious neutrality is threatened, on the other hand, by state action that promote[s] the participation of certain believers or non-believers in public life to the detriment of others. 11 The combined effect of these two trends the rapid development of a constitutional duty of religious neutrality, on the one hand, and charity law s continued failure to meaningfully address the difficult issues raised by the third head, on the other is to leave the advancement of religion category increasingly vulnerable to arguments for its demise. Indeed, the voices favouring the abolition of the religious charity appear to be growing in strength, fueled by the increasingly anachronistic character of the common law position, and a number of high-profile conflicts involving religious charities that discriminate on the basis of sexual orientation. 12 In 2014, the non-profit Humanics Institute, whose objects included developing a sanctuary to promote values that are common to all religions in the world, raised section 2(a) of the Charter in its appeal against the Minister of National Revenue s refusal to register 4 Donovan Waters, The Advancement of Religion in a Pluralist Society (Part II): Abolishing the Public Benefit Element (2011) 17 Trusts & Trustees 729, See, for example, Human Rights Act 1998 (UK), sch 1, pt 1, art 9; Religious Freedom Restoration Act (Indiana). 6 See Quebec Charter, s 3. It is well established that ss 3 and 2 are interpreted according to the same principles: Mouvement laïque québécois v Saguenay (City) (2015) SCC 16 [68]. 7 Richard Moon, Government Support for Religious Practice in Richard Moon (ed), Law and Religious Pluralism in Canada (University of British Columbia Press 2008) 221. There have been other shifts, too: Benjamin L Berger, Religious Diversity, Education, and the Crisis in State Neutrality (2013) 29 Canadian Journal of Law and Society 103, Moon, ibid Mouvement laïque (n 6). 10 SL v Commission scolaire des Chènes (2012) SCC 7, [2012] 1 SCR 235 [32]. 11 Mouvement laïque (n 6) [76]. 12 On the anachronistic nature of the common law position, see Waters (n 4). Other abolitionist voices include Christine R Barker, Religion and Charity Law [1999] Juridical Review 30; Peter Edge, Charitable Status for the Advancement of Religion: An Abolitionist s View (1995/1996) 3 Charity Law & Practice Review 29.

3 114 Oxford Journal of Law and Religion it as a charitable organization. 13 The Federal Court of Appeal dismissed the Humanics Institute appeal in brief reasons that are difficult to discern. 14 However, it is entirely plausible that another non-profit organization constituted to pursue multireligious, humanist, or more advertently secular purposes will eventually mount a strong human rights challenge to its exclusion from registered charity status. 15 In light of the significant fiscal and reputational benefits of charitable registration, 16 it is also plausible that, in Canada, such a group could establish at least a prima facie infringement of an interest protected by section 2(a). Ironically, perhaps, the prospect of this kind of modern challenge to the law of charity s third head pushes us back towards a very old question: what is the public benefit of advancing religion? Anglo-Commonwealth courts and legislatures have avoided this question for a very long time, doing so with a studiousness that reflects both the question s difficulty and a fear of what we could lose if religious charities ceased to exist. If we are to defend the position that the advancement of religion should remain a charitable purpose in the 21st century, however, we must seek to identify justiciable and compelling reasons for its inclusion. In Canada, this is not simply a question of academic interest; any thorough judicial assessment of the constitutionality of the third head of charity will take as its point of departure the objective of bestowing charitable status upon religious institutions. To assert, without more, that the public benefit of such institutions has always been assumed is unlikely to suffice. In an age of religious neutrality, the age-old questions about the public benefit of religion must be reformulated and re-asked: is it possible to identify a rationale for recognizing religion as a charitable purpose that would survive constitutional scrutiny? Is it possible to articulate the conceptual public benefit of religion in constitutionally neutral terms? The project of this article is to explore these questions about the law of charity s third head. In keeping with the complex nature of the inquiry, and the contextspecific nature of judicial rulings on Charter rights, I do not propose to offer a definitive opinion on whether the conferral of legal privileges on religious charities in Canada is inconsistent with the Canadian and Quebec Charters. My more modest goals are: (i) to clarify the constitutional parameters within which the validity of the third head of charity will eventually be addressed in Canada and (ii) to consider a justification for charity law s special treatment of the advancement of religion that may be consistent with those parameters. I pursue these two goals, respectively, in Sections 2 and 3 of this work. I close with a few comments on an objection that persons of faith may have to my account. 13 The objects of the Humanics Institute are not included in the Federal Court of Appeal judgment but are listed in its leave application to the Supreme Court of Canada: Humanics Institute and MNR (Memorandum of Argument of the Applicant, para 4). 14 Humanics Institute v MNR (2014) FCA 265. The Institute s application for leave to appeal was dismissed. 15 In Canada, two potential litigants are Mouvement laïque québécois, the successful appellant in the aforementioned section 2(a) case, and the Canadian Secular Alliance, which has previously recommended to the Standing Committee on Finance that the Government of Canada remove the advancement of religion as an eligible charitable activity: Submission to the Standing Committee on Finance re: Tax Incentives for Charitable Donations (9 February 2012) < mission-to-the-standing-committee-on-finance-9feb2012.pdf> accessed 30 January In Canada, these include exemption from income tax and the ability to offer tax benefits to prospective donors: Vancouver Society for Immigrant and Visible Minority Women v MNR [1999] 1 SCR 10 [128].

4 Advancement of Religion in an Age of Religious Neutrality THE ADVANCEMENT OF RELIGION: SETTING THE PARAMETERS A. The Common Law Parameters The common law has recognized trusts for the advancement of religion as charitable for as long as it has recognized the concepts of charity and trust. This recognition has conferred a variety of significant advantages on religious institutions, ranging from the ancient exemptions from the rule against perpetuities to the tax benefits of the present day. Piety and charity were effectively synonymous concepts in medieval Europe, although testamentary evidence suggests that the English understood pious causes to include not only religious gifts for the saying of masses and church repair, but also gifts for poverty relief and a variety of public works. 17 When the Elizabethan Parliament passed its famous Statute of Charitable Uses of 1601, the advancement of religion was not one of the good, godly and charitable uses listed in the preamble. 18 Nevertheless, trusts for the advancement of religion remained within the charities jurisdiction of the Chancery courts, and were soon conceded to be within the equity of the Statute. 19 Throughout the Tudor period and beyond, they were used to support the building and repair of houses of worship, the maintenance of preachers, and the carrying on of various religious practices. 20 As the law of charities evolved in Chancery, there emerged a consensus that in order to be recognized as a charity at common law, an institution or trust must meet two criteria: it must be constituted exclusively for charitable purposes, and it must be for the public benefit. In 1891, in the seminal Pemsel decision, the House of Lords identified four particular purposes, or sets of purposes, as charitable: the relief of poverty, the advancement of education, the advancement of religion, and a residual category of other purposes beneficial to the community, not falling under any of the preceding heads. 21 The common law continues to consider an institution whose purposes fall within one of these heads of charity to have met the first criterion for charitable status. Institutions whose purposes fall within the first three heads of charity are assumed to also meet the second criterion, while fourth head institutions must demonstrate their public benefit to the court. 22 Today, the law on the advancement of religion as a charitable purpose is complex and increasingly variable, due to the recent proliferation of charity law statutes in jurisdictions such as England and Wales, Scotland, Ireland, Northern Ireland, and Australia. Each of these jurisdictions now has a distinctive statutory list of charitable purposes, which has replaced the common law as the starting point for the legal 17 Gareth H Jones, History of the Law of Charity, (Cambridge University Press 1969) 4; see also Kathryn Chan, Taxing Charities/Imposer les Organismes de Bienfaisance: Harmonization and Dissonance in Canadian Charity Law (2007) 55(3) Canadian Tax Journal This omission is reflective of the fact that England had only one lawful church in 1601, which was tasked with supervising its own work. My thanks to an anonymous reviewer for pointing this out. 19 Hubert Picarda, The Law and Practice Relating to Charities (4th edn, Bloomsbury Professional 2010) For a review, see FH Newark, Public Benefit and Religious Trusts (1946) 62 Law Quarterly Review Commissioners for Special Purposes of Income Tax v Pemsel [1891] AC There is some debate over whether the public benefit of such institutions is presumed or simply assumed, but the overall effect is largely the same: cf R (Independent Schools Council) v Charity Commission [2011] UKUT 421 (TCC), [2012] Ch 214 [67] [68]; and Vancouver Society (n 16) [41].

5 116 Oxford Journal of Law and Religion definition of charity. These lists depart to varying extents (though never dramatically) from the common law concept of charity, and in some cases assign the concept of religion a specific scope. 23 Each reformed charity law regime also now has a distinctive statutory and regulatory approach to the public benefit criterion. 24 These approaches vary widely, and have significantly diversified the law on the public benefit of religious institutions. Ireland and Australia now presume the purpose of advancing religion to be for the public benefit, 25 for example, while Northern Ireland and England and Wales do not. 26 Despite the diversification that has resulted from statutory reform, there remains enough commonality between common law regimes of charity regulation to make the prospect of a human rights challenge to the charitable status of religious charities in any particular common law jurisdiction a matter of broader common law interest. Three points appear particularly relevant. First, throughout the common law world, the advancement of religion continues to be recognized as a charitable purpose. Second, even in jurisdictions with a statutory presumption of public benefit, charity regulators and opposing parties continue to have the ability to rebut the assertion that a religious gift or institution is for the public benefit. 27 Finally, even in jurisdictions with a statutory definition of charity, the common law authorities on the advancement of religion continue to be an important referent for the category s meaning and scope. 28 In jurisdictions without a statutory definition, of course, the common law authorities play an even more fundamental role. In order to be recognized as a charity for the advancement of religion at common law, an institution must both advance religion, and advance religion. An institution is understood to advance religion within the meaning of the common law of charities if it involves the promotion of spiritual teaching in a wide sense, and the maintenance of the doctrines in which it rests, and the observances that serve to promote and manifest it. 29 In Canada, the Federal Court of Appeal has added that a charity s efforts to promote religion must be positive and targeted : it is not enough to make available a place where religious thought may be pursued. 30 While there is undoubtedly significant practical overlap between the spiritual, educational, and poverty relief 23 See eg Charities Act 2011 (England and Wales) s. 3(2). 24 Charities and Trustee Investment (Scotland) Act 2005, s 7; Charities Act (Northern Ireland) 2008, s 2; Charities Act 2009 (Ireland) s 3; Charities Act 2011 (England and Wales) s 3; Charities Act 2013 (Australia) s 12. For further discussion of these provisions, see K O Halloran, Religion, Charity and Human Rights (Cambridge University Press 2014). 25 Charities Act 2009 (Ireland) s 3(4) and (5); Charities Act 2013 (Australia) s 7(e). 26 Charities Act (Northern Ireland) 2008, s 3(2); Charities Act 2011 (England and Wales) s 4(2). The latter provision prompted a particularly vigorous debate about the English public benefit requirement, and whether and how it modified the common law presumption of public benefit. The Upper Tribunal (UK) has since opined that the common law never in fact presumed institutions falling within the first three heads of charity to be for the public benefit, so the Statute did not substantially change the law: R Independent Schools Council (n 22) [67] [68]. 27 See eg Charities Act 2013 (Australia) s 7. The limited exception to this is the Irish Statute, which requires the consent of the Attorney General before the regulator can determine that a gift for the advancement of religion is not for the public benefit: Charities Act 2009 (Ireland) s 3(5). 28 Charities Act 2011 (England and Wales) s 3(3). 29 Keren Kayemeth Le Jisroel Ltd v IRC [1931] 2 KB 465 (CA). 30 Fuaran Foundation (n 3) para 15.

6 Advancement of Religion in an Age of Religious Neutrality 117 work of many religious institutions, the common law does not require religious charities to address the physical needs of the poor or to educate the young. As the House of Lords confirmed in Pemsel, the common law conception of charity encompasses the relief of purely spiritual needs, and it is charitable to propagate religion for the rich as well as the poor. 31 The requirement that an institution advance religion in order to benefit from charitable status represents a more controversial limitation to the law of charity s third head. The common law charities tradition came of age in post-reformation England, a place and time characterized by the spread of new beliefs, the changing religious allegiances of reigning monarchs, and widespread sectarian violence. 32 Within this historical context, charity law functioned to support the Established Church and the religions that were approved by the temporal powers. 33 Trusts for nonconformist religious purposes were routinely identified as illegal superstitious uses, and either struck down as void or applied cy-près. 34 With the development of religious toleration statutes, and eventually human rights law, charity law gradually became less sectarian in character. Today, the official position is that the law does not... favour one religion over another. 35 Nevertheless, certain boundaries are inevitably set by the definition of religion itself. While the common law has never proffered a comprehensive definition of charitable religion, the tradition has historically confined the term to belief systems that recognize a supreme deity. It has also refused admittance to belief systems that are agnostic or hostile towards religion. The promotion of secularism and the discouragement of supernatural belief have been excluded from the third head of charity, 36 as have the study of comparative religion, philosophy and science, and the investigation of the unexplained law of nature and the powers latent in man. 37 In the wellknown case of Re South Place Ethical Society, the English Chancery Court held that religion required faith in a god and worship of that god and concluded that the objects of an ethical society did not advance religion, since man s relations with man must be distinguished from man s relations with God. 38 Trusts for the advancement of non-religious beliefs are sometimes identified as charitable under the fourth head of charity on the basis that they tend to promote the moral or spiritual welfare of the community. As we have seen, however, the charitable nature of such trusts is not assumed; the court must be persuaded on the evidence of the trust s moral worth, that it benefits the public and is within the spirit and intendment of the Preamble to the Statute of Charitable Uses of For a discussion, see E Blake Bromley and Kathryn Bromley, John Pemsel Goes to the Supreme Court in 2001: The Historical Context in England (1999) 6 Charity Law & Practice Review 1, In R v Big M Drug Mart Ltd [1985] 1 SCR 295, (1985) 18 DLR (4th) 321 [Big M cited to DLR] 339. Dickson J identified this era as the historical context for section 2(a) of the Charter. 33 Newark (n 20) 235; see also Bromley and Bromley (n 31). 34 Jones (n 17) Varsani v Jesani [1998] 3 All ER 273 (HL) [30]. 36 [1917] AC 406 (HL) ; see also Thornton v Howe (1862) 31 Beav 14, Wood v R [1977] 6 WWR 273 (Alta SC); see also Cameron v Church of Christ, Scientist [1918] 57 SCR 298 [11]. 38 [1980] 1 WLR 1565 (Ch) See, for example, Re Price (1943) Ch 422; Re South Place Ethical Society [1980] 3 All ER 918.

7 118 Oxford Journal of Law and Religion Several Anglo-Commonwealth jurisdictions have in recent years witnessed a movement away from the common law s narrowly circumscribed understanding of religion and towards a more inclusive approach. Some of this movement has been accomplished by legislative bodies: the Charities Act 2011 (UK), for example, defines religion to include religions that involve belief in more than one god, and religions that do not involve belief in a god. 40 Judicial bodies have also moved towards a more inclusive approach: following earlier Australian and American precedents, the UK Supreme Court has recently reinterpreted the term religion in the Places of Worship Registration Act 1855 to include a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind s place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives The English approach to the advancement of religion is thus significantly broader than it used to be, though it continues to exclude belief systems that explain the universe solely in terms of the human senses and science. 42 Canada Revenue Agency s publications on the requirements for charitable status, on the other hand, continue to reflect the traditional common law position, identifying religion s three key attributes as faith in a higher unseen power such as a God, Supreme Being, or Entity; worship or reverence; and a particular and comprehensive system of doctrines and observances. 43 Indeed, having not submitted its conception of charitable religion to substantial judicial or legislative interrogation, Canadian charity law presently has one of the narrowest understandings of religion in the Anglo- Commonwealth world. As to the rule that an institution must be for the public benefit to be charitable, this has always represented an even greater challenge for the law of charities third head. The courts have occasionally considered the demonstrable public benefit of specific religious charities, articulating principles that address whether a particular purpose that prima facie advances religion is, in fact, a charitable purpose. 44 It is in this context that it has been established that the performance of religious rites is not charitable when conducted in private, 45 and that the alleged spiritual benefits of intercessory prayer do not satisfy the public benefit test, since they are manifestly not susceptible of proof. 46 Apart from these well-known limitations, however, the common law says remarkably little about when and on what basis a purpose that advances religion will meet the public benefit test. Most often, the courts have either assumed that religious trusts are for the public benefit, or expressed an extremely vague idea of the public benefit of a particular religious trust Charities Act 2011 (UK) s 3(2)(a). The Northern Irish Statute defines religion even more broadly: Charities Act (Northern Ireland) 2008, s 2(3)(a). 41 R (Hodkin and another) v Registrar General of Births, Deaths and Marriages [2013] UKSC 77 [51], [57]. 42 ibid [57]. 43 CRA Guidance CG-019, How to Draft Purposes for Charitable Registration (25 July 2013) [34]. 44 Jonathan Garton, Public Benefit in Charity Law (Oxford University Press 2013) vii. 45 Re Hetherington [1990] Ch 1 (Ch). 46 Gilmour v Coats [1949] AC 426 (HL) Newark (n 20) 235. For a useful review of the early case law on trusts for religious purposes, see Matthew Harding, Trusts for Religious Purposes and the Question of Public Benefit (2008) 71 Modern Law Review 159,

8 Advancement of Religion in an Age of Religious Neutrality 119 The common law tradition also says relatively little about the conceptual public benefit of the third head, leaving open the question of why the advancement of religion is a charitable purpose at all. 48 This silence is not unique to the third head, of course; as we have seen, the common law has also historically considered it selfevident that trusts for the relief of poverty and the advancement of education generally benefit the public and are prima facie charitable. Nevertheless, it is striking to what degree the Anglo-Commonwealth courts have managed to avoid articulating how the public benefits from the advancement of religion. 49 The case law makes occasional reference to the edifying effects of collective participation in religious celebrations, and the manner in which religious beliefs may take man outside his own petty cares. 50 For the most part, however, the English common law tradition simply assumes that it is good for man to have and to practice a religion. 51 As the Chancery Court stated in Neville Estates v Madden: As between different religions the law stands neutral, but it assumes that any religion is at least likely to be better than none. 52 B. The Constitutional Parameters Read from the vantage point of a constitutional democracy committed to religious neutrality, the common law jurisprudence on trusts for religious purposes raises a number of red flags. From its historical alignment of religion with the objects of the Established Church, to its continued association with a theistic conception of religion, to its assumption that it is better for persons to embrace a religion than not, the law on the advancement of religion seems a very problematic body of law for Canadian governments to be relying upon in conferring a privileged fiscal and legal status on certain (but not other) non-profit organizations. It seems inevitable that some change is needed; the question is how much and what form such change should take. Must the whole category be abolished, as some would suggest? In order to make those determinations, we need a closer understanding of the constitutional parameters within which the third head will ultimately be judged. The first thing to note is that there are a variety of ways in which the constitutionality of the advancement of religion category could come before a court in Canada, and that the precise form of the dispute will affect the manner of the application of the Canadian Charter of Rights and Freedoms, the form of the analysis, and the applicable standard of review. If a party were to challenge the inclusion of the advancement on religion in the Ontario Charities Accounting Act s definition of a charitable purpose on the basis that it limited an interest protected by section 2(a), for 48 Picarda (n 19) 101. Garton discusses the concept of conceptual public benefit in Garton (n 44) vii, Picarda s review of the case law suggests the American courts have been less hesitant than English courts about identifying the general benefits of advancing religion: Picarda, ibid Re Hetherington (n 45) 12; Holmes v A-G, The Times (12 February 1981). My thanks to an anonymous review for pointing these cases out. 51 Gilmour v Coats (n 46) Neville Estates Ltd v Madden [1962] Ch 832, 853. These statements do not appear to have been specifically adopted in Canada, though both Gilmour v Coats and Neville Estates have been cited by Canadian courts.

9 120 Oxford Journal of Law and Religion example, the judicial analysis would follow the well-known framework set out in Rv Oakes: the contesting party would seek to establish a prima facie infringement of a Charter right, following which the government would seek to defend the law under section one of the Charter on the basis that it reflected a pressing and substantial governmental objective, and that the means chosen to pursue this objective were reasonable and demonstrably justified. 53 If a party were to challenge the common law definition of charity in the context of a dispute between private parties, on the other hand, the court would weigh the principles underlying that definition against generally framed Charter values, to determine whether some modification of the common law was necessary. 54 However, if, as seems most likely, the constitutionality of the advancement of religion arises because a party objects to the Minister of National Revenue s reliance on the common law definition of charity to deny registered charity status to that party under the Income Tax Act, it is not entirely clear what form the court s analysis might take. Administrative officers that have the jurisdiction to decide questions of law arising under a statutory provision are presumed to also have jurisdiction to determine the constitutional validity of that provision, 55 and the standard of review for such a determination is correctness. 56 However, the Supreme Court of Canada has yet to agree on the appropriate standard of review when an administrative agency exercises its discretion in a way that violates the Charter. 57 In recent cases involving such discretionary decisions, some members of the Court have applied the Oakes framework, while others have applied an administrative law standard of reasonableness to determine, more flexibly, whether the decision reflects a proportionate balancing of the Charter protections at play. 58 If the Minister of National Revenue s refusal to register an organization as a religious charity was framed as a discretionary decision based on common law principles, it is unclear which of these standards of review would apply. 59 This uncertainty admittedly adds another layer of complexity to the analysis of the constitutionality of recognizing the advancement of religion as a charitable purpose. However, the Supreme Court of Canada has been careful to play down the differences between these competing standards of review, emphasizing that both tests contemplate giving a margin of appreciation or deference to administrative and legislative bodies in balancing Charter values against broader [statutory] objectives. 60 Despite the shifting nature of the relationship between the Charter, the courts, and administrative agencies, therefore, it seems possible to extract from the case law a number of guiding principles to inform our analysis of the third head of charity. 53 [1986] 1 SCR 103 [73]. 54 Hill v Church of Scientology of Toronto [1995] 2 SCR 1130 [97]; Grant v Torstar [2009] 3 SCR 640 [44]. 55 Martin v Nova Scotia (WCB) [2003] 2 SCR 504 [3], [48]. 56 New Brunswick (Board of Management) v Dunsmuir [2008] 1 SCR 190 [58] [59]; Martin, ibid [31]. 57 For a discussion, see A Wayne MacKay, Evolving Fundamental Principles and Merging Public Law Silos: The Reshaping of Canada s Constitutional Landscape in Errol P Mendes and Stéphane Beaulac (eds), Canadian Charter of Rights and Freedoms (5th edn, LexisNexis 2013). 58 Doré v Barreau du Québec [2012] 1 SCR 395 [57]. 59 Doré, ibid [29] [30]; see also MacKay (n 57) Doré, ibid [57]; see also Loyola High School v Quebec (Attorney General) (2015) SCC 12 [40] [41] (Doré s proportionality analysis works the same justificatory muscles as the Oakes test).

10 Advancement of Religion in an Age of Religious Neutrality 121 First, if the purpose of the law in question is characterized as a religious purpose, the law will almost certainly be held invalid. While both the purpose and effect of a law are relevant in determining its constitutionality, legislative purpose is the initial test of constitutional validity. 61 A law that fails the purpose test will not be saved because it has innocuous effects, nor will the state be able to justify its existence under section one. 62 Until recently, the bar for finding an unconstitutional purpose appeared to be set quite high: in Big M, the leading authority, the statutory purpose that caused the government to lose its Charter argument was the compulsion of sabbatical observance. 63 In Mouvement laïque, however, the Supreme Court of Canada held that a law to which to the Charter applies will be inoperative if its purpose is religious and therefore cannot be reconciled with the state s duty of neutrality. The Court construed the duty of neutrality strictly, suggesting that the range of purposes that are irreconcilable with that duty may be broad: If the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality... The legislative objective cannot be to impose or favour, or to express or profess, one belief to the exclusion of all others. 64 If the purpose of identifying the advancement of religion as a charitable purpose is characterized as being to support certain belief systems on the basis that they are intrinsically valuable or that they are part of Canada s historical heritage, therefore, it is likely to be unconstitutional; this conclusion will not be mitigated by the category s actual impact on religious freedoms, nor any possible justification under section one. 65 Second, even if the purpose of recognizing the advancement of religion as charitable is not itself religious, the recognition may violate the Charter if it has the effect of interfering with someone s religious beliefs or practices in a manner that is more than trivial or insubstantial. In the present Canadian context, this issue is most likely to be decided in the context of a claim that the Minister of National Revenue s refusal to register a secular or fringe religious group as a charity under the Income Tax Act has interfered with the religious freedom of its adherents. Fifteen years ago, such a constitutional challenge to the Minister s decision to confer tax benefits on only certain religious charities would have been unlikely to succeed, since an element of state compulsion was required to offend section 2(a). 66 A 2004 decision of the Supreme Court of Canada seemed to further undermine the case of the atheistic societies, as the Court held that the Charter guarantee of freedom of religion 61 Big M (n 32) 321, Big M, ibid Big M, ibid 351, Mouvement laïque (n 6) [78] [81]. 65 Big M (n 32) Kathryn Bromley, The Advancement of Religion in the Age of Fundamental Human Rights (2001) 7 Charity Law and Practice Review 39, 48.

11 122 Oxford Journal of Law and Religion protected only beliefs and practices rooted in religion, as opposed to those that are secular, socially based, or conscientiously held. 67 The jurisprudential developments of the last decade have increased the odds of success for a constitutional challenge to a decision of the Minister. Several developments seem relevant. First, the general threshold for establishing a section 2(a) violation has been set quite low, with the result that most disputes over the intersection of government regulation and religious practices are decided at the section one justification stage. Second, the Court appears to have moved away from the view that there is a qualitative difference between religious and conscientious claims: Mouvement laïque states that for the purposes of protections afforded by the charters, the concepts of belief and religion encompass non-belief, atheism, and agnosticism. 68 Third, as earlier noted, the concepts of religious liberty and religious equality have increasingly elided, to the point that many section 2(a) claims are now articulated in the language of discrimination. 69 Finally, having originally left open the extent to which the Charter allows for State financial support for, or preferential treatment of particular religious institutions, 70 the Supreme Court of Canada has become increasingly clear that state sponsorship of one religious tradition breaches the state s duty of neutrality, and is both discriminatory and destructive of religious freedom. 71 The Court has not yet assessed the scope of the duty of neutrality against an established regime of tax privileges, and opinions vary on the extent to which tax exemptions and deductions for charity should be regarded as state aid. 72 However, it is certainly arguable that in bestowing fiscal and reputational advantages on religious institutions that meet the common law criteria for charitable status, the Crown breaches its duty not to create a preferential public space that favours certain religious groups. 73 Assuming that the advancement of religion category does impose a non-trivial burden on the section 2(a) rights of certain persons who apply and are denied charitable registration, it will still be open to the state to justify the unconstitutional effect under section one of the Charter. This possibility, however, is bounded by a third principle: the third head of charity will only be justified if government can identify some rationale for its existence, and that rationale represents an objective of sufficient importance to warrant overriding a constitutionally protected right or freedom. 74 This is because under section one of the Charter, a government that wishes to justify a limit on a Charter right must first identify the pressing and substantial objective that the right-limiting measure is designed to serve. 75 The courts have 67 Syndicat Northcrest c Amselem [2004] 2 SCR 551 [39]. It was not clear whether this affected freedom of conscience claims, but until Mouvement laïque religious claims dominated the s 2(a) jurisprudence. 68 Mouvement laïque (n 6) [70]. 69 See eg Mouvement laïque (n 6) [64] ( Sponsorship of one religious tradition by the state in breach of its duty of neutrality amounts to discrimination against all other such traditions. ). 70 Big M (n 32) SL v Commission scolaire des Chènes (n 10) [17]; Mouvement laïque (n 6) [64], [80]. 72 See eg Miranda Perry Fleischer, Theorizing the Charitable Tax Subsidies: The Role of Distributive Justice (2010) 87 Washington University Law Review Mouvement laïque (n 6) [64]. 74 Oakes (n 53) 73 citing Big M (n 32) 352.e. 75 Vriend v Alberta [1998] 1 SCR 493 [110].

12 Advancement of Religion in an Age of Religious Neutrality 123 generally accorded a high degree of deference to legislative articulations of pressing and substantial objectives. 76 However, the onus of justifying a Charter infringement rests on government: if the Crown makes no submissions on this issue, or offers only vague explanations of why the Income Tax Act provisions are worded so as to incorporate the common law definition of charity into the registered charity regime, its justificatory arguments will fail. 77 Finally, assuming that there is a sufficiently important rationale for identifying the advancement of religion as a prima facie charitable purpose under the registered charity regime, that rationale must be one that the courts are competent to assess. In the context of the advancement of religion, this presents a significant challenge. We know from the charities case law that the courts will not adjudicate on the alleged spiritual benefits of religious belief and practice. 78 We know from the constitutional case law that the courts will not adjudicate on the veracity of religious doctrines, nor comment on the validity of religious practices. 79 In the context of a Charter challenge to the third head of charity, the effect of these judicial no-go zones is to reduce the justificatory arguments available to the Crown. If the Crown is to justify its reliance on the common law of charity as the basis for the distribution of legal benefits and burdens to religious institutions, it must be able to do so in terms that do not depend on the truth value of religion and are susceptible of proof. 3. THE PUBLIC BENEFIT OF ADVANCING RELIGION IN AN AGE OF RELIGIOUS NEUTRALITY Based on the foregoing review of the parameters of a section 2(a) analysis, it appears that our first order of business in considering the future of the advancement of religion as a charitable purpose must be to evaluate whether there are judicially cognizable and constitutionally compelling reasons for the existence of the category. In the context of a constitutional challenge to the registered charity regime, this issue is likely to be approached as one of statutory interpretation: the question will be whether the Parliament of Canada was in fact pursuing any cognizable, constitutionally neutral, pressing and substantial objective when it implicitly incorporated the common law on the advancement of religion into the Income Tax Act s registered charity provisions. 80 However, the broader normative issue is whether there are any cognizable, constitutionally neutral, pressing and substantial reasons for identifying 76 Errol P Mendes, Section 1 of the Charter after 30 Years: The Soul or the Dagger at Its Heart? in Errol P Mendes and Stéphane Beaulac (eds), The Canadian Charter of Rights and Freedoms (5th edn, LexisNexis Canada Inc 2014) Vriend (n 75) paras It seems likely that this principle would apply in a similar form under either the Oakes or the Doré test: Doré (n 58) [55]. 78 Gilmour v Coats (n 46). Cf O Hanlon v Logue [1906] 1 IR 275, where the Chief Baron of Ireland concluded that the spiritual benefit of an act of divine service must be ascertained according to the doctrines of the religion in question. 79 Amselem (n 67) [51]. For a recent articulation of this principle in England, see Khaira & Ors v Shergill & Ors [2012] EWCA Civ 983 [14] [26]. 80 A court would base its assessment of the government s statutory objective on the terms of the registered charity provisions and extrinsic evidence of the legislature s intent: R v Morgentaler [1993] 3 SCR 463.

13 124 Oxford Journal of Law and Religion the advancement of religion as a prima facie charitable object in contemporary Canadian law. I focus on the broader issue in this work. 81 Opinions will inevitably vary on this difficult normative issue. One need not regard the status quo as desirable, however, to consider the exercise worthwhile. For whether we are to retain the advancement of religion category in its existing formulation, expand it to include certain analogous, atheistic beliefs, or move towards its abolition, we need to do so in light of the rationales for the category s existence. My own view is that the advancement of religion should continue to be recognized as a prima facie charitable purpose in Canada, 82 in part because the strong normative universes of religion tend to encourage the transfer of charitable resources to (religious and non-religious) charitable objects in ways that the weaker normative universe of the civic community does not. In this part, I defend the view that this tendency benefits the public and merits consideration as one justification for charity law s special treatment of religious purposes in a modern constitutional state. A. A Liberal Perspective on the Public Benefit of Religion The task of identifying judicially cognizable, constitutionally neutral, pressing and substantial rationales for treating the advancement of religion as a prima facie charitable object is a complex one. Two related inquiries present themselves. First, how does the public benefit from the advancement of religion? Second, what is the justification for identifying the advancement of religion as a distinct type of charitable purpose, while not conferring the same status on the advancement of secular belief? Matthew Harding has advanced our thinking on both of these questions in recent work that evaluates charity law s treatment of religious purposes from a liberal perspective. 83 Basing himself on the philosophy of Joseph Raz, Harding asserts that the promotion of charitable purposes is justifiable in a liberal state to the extent that such purposes contribute to conditions under which citizens may realize the ideal of personal autonomy, in the sense of self-direction, in their lives. He identifies a number of private and public goods associated with the advancement of religion, in order to evaluate whether the third head of charity meets this justificatory standard. First, Harding claims, purposes related to the maintenance of religious beliefs offer private goods in the form of spiritual, emotional and intellectual resources...to people who are searching for answers to ethical and existential questions. These resources, which include the unique phenomenon of faith, may contribute to the development of inner capacities and constitute options for autonomous choice. 84 Second, 81 There are several reasons for focusing on the broader issue. First, the privileged legal status of religious charities may arise in the political sphere. Second, even if the issue arises first in the judicial sphere, the negligible amount of Parliamentary debate on the role of the common law of charities within the Income Tax Act may cause the courts to veer towards the normative question. 82 I would argue that within the present Canadian regulatory paradigm, the presumption of public benefit should remain in place for religious charities: for an Australian argument to this effect, see Brian Lucas and Anne Robinson, Religion as a Head of Charity in Myles McGregor-Lowndes and Kerry O Halloran (eds), Modernising Charity Law: Recent Developments and Future Directions (Edward Elgar 2010) Matthew Harding, Religion and the Law of Charity: A Liberal Perspective (2014) 29 Journal of Law and Religion 23; Matthew Harding, Charity Law and the Liberal State (Cambridge University Press 2014). 84 Harding, Charity Law and the Liberal State, ibid, citing Timothy Macklem, Faith as a Secular Value (2000) 45 McGill Law Journal 1.

14 Advancement of Religion in an Age of Religious Neutrality 125 purposes related to the maintenance of religious practices generate private goods associated with belonging to religious communities, including collective participation in celebrations and rites. Third, the pursuit of religious purposes by a wide variety of communities may further religious diversity, which Harding and Raz identify as a public good. 85 Harding also makes brief mention of the ethical and moral teachings that lead religious people to establish programmes for purposes such as poor relief and healthcare, but sets these aside on the basis that the goods that these teachings generate are not directly related to religious belief. 86 To the extent that these private and public goods contribute to the conditions of autonomy, Harding argues, they may provide a justification for identifying the advancement of religion as charitable in a liberal state. However, it remains problematic to single out religion as a distinct type of prima facie charitable purpose, because almost all of the goods associated with religion are also associated with secular beliefs and practices that are functionally similar to religion. 87 Harding takes the view that the unique contribution of faith to the epistemic lives of religious adherents may not be of sufficient weight to justify the advancement of religion s special status. 88 Two other justifications, he suggests, may have more potential from a liberal perspective. A first is that religion uniquely combines a range of private goods worldview, community, a connection to the transcendent in a way that distinguishes it from secular belief and makes a special contribution to the conditions of autonomy. A second argument is that an autonomy-inspired ideal of public reason may demand that the practical reasoning of state officials reflect the social and cultural meanings that have attached to the term religion over time. Ultimately, Harding does not assess the strength of these justifications, concluding only that many, but not all, of the traditional liberal anxieties about singling out the advancement of religion as a prima facie charitable purpose may be unfounded from the perspective of autonomy-based liberalism. 89 Harding s liberal analysis of the third head of charity provides a valuable starting point for thinking through the place of the advancement of religion in a constitutional democracy committed to religious neutrality. In particular, Harding s identification of autonomy-promoting goods generated by religion spiritual and intellectual resources, communal rituals, and religious diversity offers a promising point of departure for identifying pressing and substantial objectives for the category s existence in Canada. 90 As Harding acknowledges, however, it is charity law s 85 ibid 152. Harding allows that religious purposes may, under certain conditions, also contribute to social order and stability (a public good) through their ethical and moral teachings. However, Harding is less comfortable with this argument, both because of the prevalence of sectarian conflict and because social order is sometimes at odds with autonomy. 86 ibid ibid ibid. 89 ibid Under the Canadian Charter, the objective of promoting the advancement of religion must ultimately be assessed against the underlying values and principles of Canada s free and democratic society, which include respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society : see Oakes (n 53) [67]. However, goods that contribute to the conditions of autonomy are likely also to be consistent with these values.