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Church & the Law Update Reprinted by CARTER & ASSOCIATES Barristers, Solicitors & Trade-MarkAgent Volume 2, No. 5 March 22, 1999 CHURCH & THE LAW UPDATE Terrance S. Carter, B.A., LL.B. - Editor Updating churches and religious charities on recent legal Developments and riskmanagement considerations G. Definition of advancement of religion IN THIS ISSUE at law........................................................... 8 This issue of Church & the Law Update contains the following articles: IN THIS ISSUE...........................................1 EDITORS NOTE EDITORS NOTE ........................................ 1 Church & The Law Update is published without charge for distribution to churches, charities and not- 1. IS RELIGION PASSE AS A for-profit organizations across Canada and internationally. It is published approximately 3 times CHARITY? ................................................. 1 a year as legal developments occur. The format is designed to provide a combination of brief A. Introduction ......................................... 1 summaries of important developments as well as B. Historical Development of Charity Law feature commentaries. Where a more lengthy article 2 is available on a particular topic, copies can be obtained from our website at www.charitylaw.ca. C. Canada Today ..................................... 4 The information and articles contained in this Church D. Why is religion tax-assisted today?..... 5 & The Law Update are for information purposes only E. Limits to the concept of advancement of and do not constitute legal advice and readers are religion ........................................................ 6 therefore advised to seek legal counsel for specific F. Are Charter Challenges Likely?.......... 7 advice as required. 1. IS RELIGION PASSE AS A CHARITY? pursuit at law, and thus allows religious By: Carl Juneau, Assistant Director, organizations to issue tax receipts for Technical Interpretations and donations. Communications Section, Charities Division, Canada Customs and Revenue Some have suggested that the charitable Agency donation tax incentives should be directed at those organizations which serve the community-at-large rather than their own A. INTRODUCTION membership. These people say that there is something wrong with religious organizations getting tax-receipting My presentation today dwells on religion - privileges (1). more particularly, on whether the advancement of religion is a charitable 1 CARTER & ASSOCIATES Volume 2 No.5 March22, 1999 I propose to address this issue from a Detractors of the current definition of historical and a contemporary perspective, charity highlight the anachronism of the and to allow myself some gazing into the Preamble, and conclude that its venerable future. antiquity is the root of problems the sector faces today. The Preamble, they say, is not B. HISTORICAL DEVELOPMENT "in sync" with contemporary needs, it talks OF CHARITY LAW about things we don't relate to as Canadians, and in particular it does not support the Alot has been said recently about the consideration of certain types of definition of charity at law, and whether this organizations as charitable. Foremost among definition is suitable. This is of particular these types of excluded organizations are importance since, by being recognized as advocacy organizations, for instance. charities, community organizations gain Somewhere, the critics of the common-law access to certain tax advantages. definition of charity seem to have forgotten In this context, people have been reminded the fact that the partial restriction on of late how the legal concept of charity advocacy activities by charities does not evolved from a XVIth Century statute, the come from the Preamble, but from Statute of Charitable Uses, enacted under subsequent decisions by the courts - Elizabeth I, in 1601 (2). The Statute itself has principally in the XXth Century. died a death by degrees, finally being put to When these detractors make their claim for rest in England, by the Charities Act, 1960. tax assistance on behalf of the particular But its preamble - which enumerated a category of organizations they support, they series of purposes that were considered neglect to consider the spirit of the law and charitable - has survived as an example, its evolution through four centuries guiding the courts in the process of analogy following the Preamble's enactment. They to determine what is charitable and what is conveniently use the origins of the law in not. isolation, to convince the public of its The relief of aged, impotent and poor anachronism, when in reality, what is at people; the maintenance of sick and maimed issue today is not whether something is soldiers and mariners, schools of learning, charitable or "good", but whether, on a tax free schools and scholars in universities; the policy level, a given type of organization repair of bridges, ports havens, causeways, should be tax-subsidized by the state. The churches, sea-banks and highways; the question we have to ask ourselves today and education and preferment of orphans; the in the current debate is "Where does that relief, stock or maintenance of houses of leave religion?" correction; the marriages of poor maids, the Needless to say, the detractors of the supportation, aid and help of young definition of charity as applied currently, are tradesmen, handicraftsmen and persons very much in favour of statutory decayed; the relief or redemption of intervention to re-orient the concept of tax- prisoners or captives; and the aid or ease of assisted charity in Canada. But given the any poor inhabitants concerning payment of breadth of the charitable sector, given the fifteens, setting out of soldiers and other bread-and-butter issues that most taxes. community organizations have to face, given the lack of general knowledge and 2 CARTER & ASSOCIATES Volume 2 No.5 March22, 1999 understanding of the sector, and given the Poor people and prisoners, to find them range of emotions that people attach to their food; personal charity, I can just imagine the kinds of debates that such statutory amendment And set scholars to school, or some other could provoke in the sector, in Parliament, craft; andinthepress. Relieve poor religious, and lower rents or (4) Well, I have news for the detractors of the taxes. current definition of charity: the legal For those of you who are familiar with the concept of charity has much stranger and Preamble to the Statute of Charitable Uses much older origins. It is likely found it in a 1601, the Preamble bears an uncanny poem - a poem written long before resemblance to the verses above. The Christopher Columbus, long before the enumeration of charitable objects is indeed Reformation, long before the religious so close that it is difficult to believe that the conflicts under the Tudor monarchy, and draftsmen of the Preamble did not draw on long before the Statute of Charitable Uses (5) them. 1601. The first version of the poem apparently dates from 1362. The poem is by What is interesting from a religious William Langland, and it is called The perspective however is that, with the Vision of Piers Plowman (3).Init,aplowman exception of the repair of churches in the has a dream in which he searches for Truth, Preamble and assistance to mendicant and in one part of the poem, Truth religious orders in Piers Plowman,religion personified advises anxious and rich is not mentioned. Doomsayers mention this merchants to obtain the remission of their as a harbinger of things to come. Students of sins by devoting their wealth to charitable the Preamble have suggested that the purposes in the following manner: notable absence of religion from the list is because of turbulent background of Tudor But under his secret seal, Truth sent them a England, where the monarchy vacillated in letter terms of its religious support, and where religious lands and assets of the former That they should buy boldly, what they liked church were confiscated into the Royal best; Treasury at the whim of the King (6).Butthat And afterwards sell again; and save their does not explain the near-absence of religion profits in the excerpt from Piers Plowman, written at least a full century before Henry VIII and Therewith to amend hospitals; and the English Reformation, at a time when the miserable folk help; profile of religious giving was much higher. Indeed, in the Middle Ages, as now, gifts to To repair rotten roads, where plainly religious institutions were commonplace. required; This is likely why they were essentially left out of the enumeration in Piers Plowman And to build up bridges that were broken and, together with the aforementioned down; concern about the monarchy's ability to Help maidens to marry, or make of them confiscate the holdings of religious nuns; institutions, also out of the Preamble.Itwas acknowledged implicitly that giving for pious purposes to religious institutions was 3 CARTER & ASSOCIATES Volume 2 No.5 March22, 1999 an already long-established form of charity. The Victoria Buddhist Dharma Society The exhortation found in Piers Plowman is that, in addition to the support given to The Zoroastrian Society of Ontario religious institutions, rich people should try The Islamic Society of Niagara Peninsula to improve the lot of those less fortunate than them, or of the community in general, New Age International through other avenues. This appeal for a particular kind of giving, with more The Universal Cosmic Light Society emphasis on social needs, parallels the first faint stirrings of the secular Renaissance and The Spiritualist Church of Divine Guidance the increasing prosperity and the growth of And we know there are many other the merchant classes in the later Middle organizations out there which consider Ages, along with the community concerns themselves to be religious bodies and which that came with it. may or may not qualify for registration. A recent Globe and Mail article mentions the C. CANADA TODAY Temple of Priapus; the Hermetic Order of the Silver Sword, and the Congregationalist (8) Canada today also faces social change. Witchcraft Association .Wealso remember the now infamous Order of the However, the situation is very different from (9) William Langland's time.
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