Chapter Six - Advancing Religion in a ‘Neutral’ State: Understanding Religion as a Constitutional Good
Published online by Cambridge University Press: 23 February 2022
Summary
It is apparent, then, that both the advancement of education and the advancement of religion are firmly and favourably rooted in the public policy of our law. Moreover, it is not stretching matters to say that even in the modern, secular age the advancement of religion is rooted in our law and in our Constitution. That policy is readily discernible in the declaratory preambles to the Canadian Bill of Rights […] and the Canadian Charter of Rights and Freedoms which both affirm that Canada ‘is founded upon principles that’ acknowledge and recognize ‘the supremacy of God’, and ‘the rule of law’. That is not to say that our country is even remotely similar to a theocracy such as have been established in past ages and in the present day in some countries. Far from it. We do not have any established church or State religion. Those Canadians who profess atheism, agnosticism or the philosophy of secularism are just as secure in their civil rights and freedoms as are those who profess religion. So it is that while Canada may aptly be characterized as a secular State, yet, being declared by both Parliament and the Constitution to be founded upon principles which recognize ‘the supremacy of God’, it cannot be said that our public policy is entirely neutral in terms of ‘the advancement of religion’ […] The legal and constitutional recognition of God necessarily imports and involves a polity which leans in favour of belief, or faith— that is, the profession of religion among our people.
Justice Muldoon, Federal Court of Canada, McBurney v CanadaPart I: Introduction
Canadian law recognizes the ‘advancement of religion’ as a charitable purpose, such that organizations which ‘advance religion’ enjoy numerous advantages. As reflected in the Federal Court's comments above, this has thus far been deemed constitutionally sound. However, it has been observed that recent legal trends appear to be rendering the ‘advancement of religion category increasingly vulnerable to arguments for its demise’. Indeed, as Charter jurisprudence continues to emphasize the importance of ‘state neutrality’, in which the state must ‘neither favour nor hinder any religion’, the law's recognition of ‘advancement of religion’ as a charitable purpose may increasingly face challenges.
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- The Status of Religion and the Public Benefit in Charity Law , pp. 129 - 158Publisher: Anthem PressPrint publication year: 2020