National Post “Pray away the gay’: Conversion therapy groups face heat over charity status”

October 07, 2012 | By: .(JavaScript must be enabled to view this email address) Mark Blumberg
Topics: News, What's New from the Charities Directorate of CRA, Canadian Charity Law, Ethics and Canadian Charities

Sarah Boesveld of the National Post on Oct 6, 2012 wrote an article “Pray away the gay’: Conversion therapy groups face heat over charity status” which discusses how California has banned “conversion therapy”  out of “concerns of LGBT groups who said the programs can cause depression and suicide in young people often coerced into the treatment.”

There is widespread misconception that religious registered charities can do whatever they want as long as it relates to their religion.  If you want to set up a religious group in Canada without charitable status then you can do just about anything as long as it is within the law.  If you decide to pursue registered charity status under the Income Tax Act (Canada) then you are agreeing to comply with certain additional requirements.  Many religious groups don’t want the additional requirements and don’t seek registered charity status. 

In 2009 the CRA released a draft “CONSULTATION ON PROPOSED GUIDANCE ON ADVANCEMENT OF RELIGION AS A CHARITABLE PURPOSE”.  The draft was delivered by Terry de March, the then Director General of the CRA Charities Directorate, at a conference in Australia.  It provides some clues as to the CRA’s views on registered charities under the religion category.  Here is a link to my page on that draft consultation document with a copy of the draft.  http://www.globalphilanthropy.ca/index.php/blog/comments/draft_consulation_on_proposed_guidance_on_advancement_of_religion_as_a_char/

I would suggest that Canadian registered charities that are involved with religion review the draft.  It may not be CRA’s exact position - but it is probably close.

Here are a few highlights as it relates to the Sarah Boesveld story:

“DRAFT CONSULTATION ON PROPOSED GUIDANCE ON ADVANCEMENT OF RELIGION AS A CHARITABLE PURPOSE
Reference Number
Last Updated — March 27, 2009
Subject   Advancement of religion as a charitable purpose

Summary
The following is a summary of the Guidance:

For charity law purposes a religion must have three key attributes: 1) faith in a “higher unseen power” such as God, a Supreme Being or Entity, 2) worship/reverence, and 3) a particular and comprehensive system of doctrines and observances.

A registered religious charity must advance a religion. Not everything done in the name of religion advances religion within the meaning of charity law. Advancing religion involves promoting and manifesting doctrine, observances, and practices. In other words, the key attributes of religion must to some degree be manifest in the activities of the organization.

Advancement of religion is not limited to faith and worship but can be done in a “wide variety of ways”, including activities that are practical expressions of the religion, provided they can be linked to the religion and faith and practice are present.

A charity may focus its activities on programs or a limited number of tenets of faith, if there is a clear connection with the advancement of a particular religion. The more narrow the focus of the organization in relation to the wider teachings of the religion the greater the expectation will be for a clear connection between its activities and the stated religious purpose.

Religion may be advanced by what may seem like secular activities provided that the religious purposes are clearly stated, the methods of advancement are a reasonable means to achieve the purpose and faith and practice are evident.

A non-charitable purpose can not be advanced in the name of religion.

Activities that do not advance religion are permitted only to the extent that they are incidental and ancillary to advancing religion.

An organization that advances religion must do so for the public benefit. While “benefit” is assumed in the absence of evidence to the contrary, the public element must be proven.

Private benefit is allowed to the extent that it is incidental to advancing religion, necessary and reasonable.”


My favourite line in the summary is “Not everything done in the name of religion advances religion within the meaning of charity law.”  Pretty obvious to most but not to some.


As is discussed on page 17 of the draft document there is a presumed “benefit” for the first three heads of charity which include advancing religion.  The draft guidance goes on to say:

“Some examples of where the presumption of benefit could be rebutted are:

*the doctrines of the organization are “adverse to the very foundations of all religion”/or “subversive of all morality”,

*evidence of significant private benefit by someone who is not included among the beneficiaries of the charity’s official purposes,

*objective and informed evidence that the organization incited hatred or violence against other groups,

*objective and informed evidence of significant potential physical or mental harm to adherents, or

*objective and informed evidence of unlawfully restricting a person’s human rights and freedoms.”


However, CRA makes it clear that “Simple disagreement with a religion’s beliefs or practices or allegations alone would not be enough to rebut the presumption of benefit.”

Do you require legal advice with respect to Canadian or Ontario non-profits or charities?

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Charity Lawyer Mark Blumberg

Mark Blumberg is a partner at the law firm of Blumberg Segal LLP in Toronto and works almost exclusively in the areas of non-profit and charity law.

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