A person who represents themself, has a fool for a client

It’s being widely reported today that Canada’s Federal Court of Appeal has rejected the bid of the Church of Atheism of Central Canada to be recognized as a charity. As someone who’s called Canada’s charity law “antiquated and ill suited for modern purposes” and repeatedly called for modernization, this case is incredible frustrating for me – and should be equally so for all Canadian atheists.

First the facts: Christopher Bernier is a resident of McDonald’s Corner, Ontario (it’s kind of in the middle of nowhere). He founded a nonprofit called the ‘Church of Atheism of Central Canada’ in 2014 and registered the domain atheismcanada.com (the website is no longer active). It’s unclear if the church has or ever had any members. Bernier applied to the CRA for charitable status under the purpose of advancement of religion. His application was denied and he appealed to the Federal Court of Appeal.

To qualify as a charitable organization in Canada, you must meet criteria set out in case law that dates back to Elizabeth I. The present definition come from Pemsel from England’s House of Lords in 1891. That sets out the four “heads” of charity: Advancement of religion, advancement of education, relief of poverty and other purposes beneficial to the community. That last one is a catch-all for other things courts decide are charitable.

The CRA has a policy defining what “advancement of religion” means:

To advance religion in the charitable sense means to promote the spiritual teachings of a religious body and to maintain doctrines and spiritual observances on which those teachings are based. There must be an element of theistic worship, which means the worship of a deity or deities in the spiritual sense.

This policy is based on case law that is cited by Justice Rivoalen’s unanimous decision:

[10] For something to be a “religion” in the charitable sense under the Act, either the Courts must have recognized it as such in the past, or it must have the same fundamental characteristics as those recognized religions. These fundamental characteristics are not set out in a clear “test”. A review of the jurisprudence shows that fundamental characteristics of religion include that the followers have a faith in a higher power such as God, entity, or Supreme Being; that followers worship this higher power; and that the religion consists of a particular and comprehensive system of faith and worship (Syndicat Northcrest v. Amseleum, 2004 SCC 47 (CanLII), [2004] 2 S.C.R. 551, at paragraph 39).

Obviously, nothing about this policy or this test supports the idea of an atheist group qualifying. Hence why I’ve called it discriminatory.

It’s not clear exactly what Bernier argued before the court but he basically tried a smorgasbord of sections of the Charter to argue that point. Specifically he cited sections 2(a) (freedom of conscience and religion), 15 (equality) and 27 (the multicultural heritage of Canada). Justice Rivoalen quickly dismissed the latter two arguments as organizations don’t get equality rights and section 27 is a tool to interpret other sections and not a right in itself.

Bernier scores a point in that the court recognizes that section 2(a) “does protect the rights of atheists.” It continues, “Indeed, section 2 of the Charter protects the rights of the appellant’s members to practise their beliefs in Atheism and the Minister [of National Revenue] cannot interfere with the practice of these beliefs .” Nevertheless, the Justice Rivoalen goes on to conclude the interference in this case is “trivial or insubstantial” as he can keep being an atheist without charitable registration.

With that, Bernier’s Charter arguments are gone and it’s now just a matter of whether it was reasonable to reject his application. To do this, Justice Rivoalen applies the aforementioned (and hugely problematic) test to the Church of Atheism.

Bernier must have noted in his arguments that Buddhists are recognized as a religion and do not believe in a “Supreme Being” as Justice Rivoalen concedes this point and allows him to bypass the first two elements of the CRA’s test.

[21]  I agree with the appellant that the requirement that the belief system have faith in a higher Supreme Being or entity and reverence of said Supreme Being is not always required when considering the meaning of “religion”. The appellant rightfully pointed to Buddhism as being a recognized religion that does not believe in a Supreme Being or any entity at all (South Place Ethical Society, Barralet and Others v. A.G., [1980] 1 W.L.R. 1565, at page 1573).

However, he fails to pass the final part of the test: “that the religion consists of a particular and comprehensive system of faith and worship.” This is also where apparently the most face-palm inducing elements of Bernier’s arguments come through.

[23]  The Minister rejected the appellant’s claim that its doctrine of mainstream science fulfills the third element. Mainstream science is neither particularly specific nor precise. He found that the statement of the appellant that “[w]e believe…that our Ten Commandments of Energy are sacred texts because they were created by a wise human being who consists of pure, invisible Energy and has acknowledged Energy’s existence” provides no detailed information as to the particular and comprehensive system of faith and worship. He found that the appellant’s contention that there should not be a requirement that a religion have an authoritative book similar to the Bible was a further indication that the appellant does not have a comprehensive and particular system of faith and worship (Respondent’s Report on Objection, November 5, 2018, AB, Tab 7).

Seriously, talking about “Ten Commandments of Energy” and a worship of “mainstream science” really just makes atheists look bad. And not just because using “energy” in this way makes me cringe as a physicist.

This was pretty much the final nail need to bury Bernier’s case. But for extra measure Justice Rivoalen adds one more note:

There is no dispute that such registration is a privilege, not a right (Many Mansions Spiritual Center, Inc. v. Canada (National Revenue), 2019 FCA 189 (CanLII), at paragraph 6). The privilege of registration as a charity functions as an indirect tax subsidy to encourage the work of registered charities.

And it’s here where I’m most frustrated. As this is the clear admission by the Court that the government is privileging religious viewpoints over nonreligious ones, something that is in clear violation of the “state’s duty of religious neutrality.” This is also why I’m most annoyed at this entire case, as I think there is a stronger argument here that the preferential treatment of religious charities – and particularly theistic religions – is contrary to that duty.

Instead, it seems that in his zeal, Christopher Bernier and the Church of Atheism of Central Canada may have inadvertently done more harm as now that test case will also have to clear this precedent out of the way to proceed.

I’m all for people taking the initiative to challenge unjust and discriminatory laws – and charitable purposes are a special interest of mine – but for justice’s sake, get in touch with an existing group, get some pro-bono counsel and do it right.

—

The original quote from Abraham Lincoln used in the title has been updated for 2019.

Ian Bushfield is the executive director of the BC Humanist Association. He has a background in physics and non-profit management and grew up in Alberta.