Citation: 2008TCC395
Date: 20080627
Dockets: 2007-1075(IT)I, 2007-1181(IT)I
2007‑1528(IT)I, 2007‑1603(IT)I
2007‑1621(IT)I, 2007‑2094(IT)I
2007‑2542(IT)I, 2007‑2096(IT)I,
2007‑4806(IT)I
BETWEEN:
COLETTE LEFEBVRE, PIERRETTE FORTIN RAYMOND,
LISETTE SIMARD CÔTÉ,
MICHÈLE RICHARD AUCLAIR,
DENISE ROBERT GODIN, PAUL DE LEEUW,
MICHELINE BOLDUC, JEAN‑PIERRE DESNOYERS,
and LINDA DIAMOND,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
Lamarre Proulx J.
[1] These appeals,
instituted primarily by pastoral agents within the Roman Catholic Church, concern the deduction, under paragraph 8(1)(c)
of the Income Tax Act, for the residence of members of the clergy or of
a religious order, or of regular ministers of a religious denomination.
[2] The relevant parts of the provision read:
8. (1) Deductions allowed − In computing a taxpayer's income for a
taxation year from an office or employment, there may be deducted such of the
following amounts as are wholly applicable to that source or such part of the
following amounts as may reasonably be regarded as applicable thereto
. . .
(c) Clergy residence – where, in the year, the taxpayer
(i) is a member of the clergy or of a
religious order or a regular minister of a religious denomination, and
(ii) is
(A) in charge of a diocese, parish or
congregation
(B) ministering to a diocese, parish or
congregation, or
(C) engaged exclusively in full-time
administrative service by appointment of a religious order or religious
denomination,
the amount, not exceeding the taxpayer’s
remuneration for the year from the office or employment, equal to
. . .
[3] Two tests must be
met under this provision: the status test and the function test.
[4] The deduction was
disallowed under the status test in all cases. The Respondent's position is that the Appellants
are not members of the clergy or of a religious order, and are not regular
ministers of a religious denomination. The Appellants admit that they were
not members of the clergy and were not members of a religious order.
However, they submit that they are regular, albeit non‑ordained,
ministers of the Roman Catholic Church.
[5] Seven of the Appellants
are under the authority of Bishop Berthelet of Saint‑Jean‑Longueuil, and two are under
the authority of Bishop Cazabon of St‑Jérôme. Neither bishop
testified at the hearing. However, Bishop Berthelet's sworn
declaration concerning the status, role and duties of pastoral agents in his
diocese was tendered in evidence.
[6] Ms. Fortin Raymond
represented all the Appellants from the Longueuil diocese as their agent. Nicole Rivard
represented all the Appellants from the St‑Jérôme diocese as their agent.
Nonetheless, each of the Appellants had their own documents and arguments.
[7] According to the
sworn declaration of Bishop Berthelet,
the starting point for his thinking is Interpretation Bulletin IT-141R. I quote
from the declaration:
[TRANSLATION]
The starting point of my thinking was the definition in Interpretation
Bulletin IT‑141R of the Canada Customs and Revenue Agency. The definition
applies to all churches and religious denominations. It seems to correspond to what
is experienced in practice in terms of the duties and mandates that I assign to
pastoral agents in our diocese. Thus, my thinking started from this
definition, and, assuming that one does not want there to be discrimination
between religions or denominations, one can say that, given their role,
duties and status, such assistants should be treated like clergy.
[8] In Bishop Berthelet's
opinion, pastoral agents should be considered equivalent to the definition of
clergy in the Interpretation Bulletin. The point that I believe Bishop Berthelet
is making pertains to the essential role of pastoral agents in his diocese. But
the phrase "member of the clergy" must be interpreted in accordance
with the rules of the church to which the member belongs, and we shall see
that, under rules of the Roman Catholic Church, only members who have received
the Sacrament of Orders are considered members of the clergy of that Church.
Consequently, a lay person must take the "regular minister"
route in order to have some chance of success in the instant appeals.
[9] Bishop Berthelet goes on to provide the following
description of the role of pastoral agents, their training and their degree of
permanence:
[TRANSLATION]
Their actions, and the functions entrusted to them, constitute
participation in the spiritual leadership of the Catholic Church here. It is
necessary to know that in parishes throughout the diocese, ministry is carried
out by teams that work in a collegial manner. In a parish, some functions are
assigned to the priest and others are assigned to pastoral agents. Together
they provide service and spiritual leadership to the Christian community.
To reduce the entire ecclesial function in a parish to
the administration of the sacraments is to fail to recognize the importance of
the Word of God for us, the many aspects of the ministry of teaching wherein we
prepare people for and contribute to their understanding of faith and practice
of the sacraments and accompany them. We can take and examine the important
role of pastoral agents in each of the sacraments, whether in preparing people
or accompanying them before, during and after the celebration of these
sacraments. Thus, these pastoral agents play an essential role that allows the
faithful to understand, celebrate and live these sacraments fully. It is in
this sense that I say that they participate in spiritual leadership.
In order for this spiritual leadership to be exercised, I entrust to
them a pastoral mandate of some permanence. These are not people who offer
their services occasionally, but people on whom we count permanently. These
agents require a long period of formation; several of them have held these
positions, either in the diocese or in the parish, for more than ten years. I
would say that we could not function without them. They are part of our
pastoral staff, and in this sense, they are equivalent to the definition of a
member of the clergy in point 4 of document IT‑141R of the Canada Customs
and Revenue Agency.
[10] According to the
Bishop, to reduce the ecclesial function to the administration of sacraments is
to misunderstand the situation. Pastoral agents do not administer the sacraments, but they
prepare the faithful for them and accompany them. They play an essential and
ongoing role in the Church's teaching and charity. They serve under a
mandate issued by the bishop, who certifies their competency and determines the
duration of the mandate and the services to be performed.
[11] Counsel for the
Respondent produced a 1997 Vatican document entitled Instruction on Certain Questions Regarding
the Collaboration of the Non‑Ordained Faithful in the Sacred Ministry of
Priest ("the Instruction").
The document was approved by the Pope on August 13, 1997.
[12] Counsel for the Respondent
produced this document with the aim of showing that the Vatican draws a marked
distinction between priests, who are ordained sacred ministers, and the lay
faithful who perform certain duties in sacred ministers' place and are called
extraordinary ministers in such cases.
[13] I would note
parenthetically that the mere fact that the Vatican thought it necessary to
prepare this document constitutes proof of a relatively recent development in
which laypersons have taken on importance within the Church.
[14] I quote certain excerpts from the
Instruction:
The necessity and importance of apostolic action on
the part of the lay faithful in present and future evangelization must be borne
in mind. The Church cannot put aside this task because it is part of her very
nature, as the 'People of God', and also because she has need of it in order to
realize her own mission of evangelization.
. . . Only in some of these functions, and to a
limited degree, may the non-ordained faithful cooperate with their pastors should
they be called to do so by lawful Authority and in accordance with the
prescribed manner. (Emphasis added.)
. . . "The exercise of such tasks does not
make Pastors of the lay faithful, in fact, a person is not a minister
simply in performing a task, but through sacramental ordination. Only the
Sacrament of Orders gives the ordained minister a particular participation in
the office of Christ, the Shepherd and Head in his Eternal Priesthood. The
task exercised in virtue of supply takes its legitimacy formally and
immediately from the official deputation given by Pastors, as well as from its
concrete exercise under the guidance of ecclesiastical authority". (Emphasis
added.)
. . . The non-ordained faithful may be generically
designated "extraordinary ministers" when deputed by competent
authority to discharge, solely by way of supply, those offices mentioned in
Canon 230, § 3(56) and in Canons 943 and 1112. Naturally, the concrete term may
be applied to those to whom functions are canonically entrusted e.g.
catechists, acolytes, lectors etc. (Emphasis added.)
It is unlawful for the non-ordained faithful to assume
titles such as "pastor", "chaplain", "coordinator",
"moderator" or other such similar titles which can confuse their role
and that of the Pastor, who is always a Bishop or Priest.
. . .
Necessary Selection and
Adequate Formation
Should it become necessary to provide for "supplementary"
assistance in any of the cases mentioned above, the competent Authority is
bound to select lay faithful of sound doctrine and exemplary moral life.
Catholics who do not live worthy lives or who do not enjoy good reputations or
whose family situations do not conform to the teaching of the Church may not be
admitted to the exercise of such functions. In addition, those chosen
should possess that level of formation necessary for the discharge of the
responsibilities entrusted to them.
In accordance with the norms of
particular law, they should perfect their knowledge particularly by attending,
in so far as possible, those formation courses organized for them by the
competent ecclesiastical Authority in the particular Churches, (in environments
other than that of the Seminary, as this is reserved solely for those preparing
for the priesthood). Great care must be exercised so that these courses conform
absolutely to the teaching of the ecclesiastical magisterium and they must be
imbued with a true spirituality. [Footnotes omitted.]
[15] In my view, the
Instruction shows that, despite a fervent wish that religious vocations become
numerous again and constitute the norm, the Vatican, out of concern for
reality and for the maintenance of order in the Church, has chosen to
create a legal structure governing the laity in pastoral service. In the
Instruction, the Vatican recognizes the necessity and importance of apostolic
action on the part of the lay faithful. However, the Vatican wants a
clear distinction to be maintained between ordained ministers and the laity.
Lay persons may be called extraordinary ministers when called upon by competent
authority to carry out duties that would normally be performed by clergy if
there were enough clergy to perform them. The lawful authority must choose
faithful of sound doctrine and exemplary conduct. In addition, such lay persons
must have adequate formation (training). Suppletive duties derive their
legitimacy formally and directly from an official delegation effected by
Pastors, and, when performing such duties, a lay person is subject to ecclesiastical
authority.
[16] For an analysis of
the Instruction, the Appellants' agent referred to an article written this year
by Anne Asselin, JCD, of
the Faculty of Canon Law of St. Paul University: "Les Laïcs au
service de leur Église, Le point actuel du droit." [Lay persons
serving their Church: The current law]. Here are some excerpts from the chapter
entitled "L'instruction interdicastérielle de 1997", at pages 170,
172, 173 and 184:
[TRANSLATION]
The Instruction suggests that the solution to the shortage of
priests lies in the encouragement of a "zealous and well-organised
pastoral promotion of vocations". . . . "Any other solution to
problems deriving from a shortage of sacred ministers can only lead to
precarious consequences." No one can argue with a campaign for vocations;
only a priest can replace a priest. But we can ask whether all our hope for the
future of the Church should be placed there. A well-managed lay ministry may
turn out to be a good thing for the Church.
This doctrinal section of the document concludes with a
reminder that this collaboration of lay people in the ministry of priests is of
extraordinary character and that its application must "avoid . . . the
abuse of multiplying 'exceptional' cases over and above those so designated and
regulated."
. . .
. . . The Assembly of Quebec Catholic Bishops also
studied the question of traditional vocabulary and current experience of
ministry. The bishops suggested adopting a "certain number of agreements
to avoid sterile struggles about semantics and even more tensions between
ministers that can only harm the community." It seems clear that, in
practice, the restrictions on terminology imposed by the Instruction did not
have the desired impact, at least not yet, ten years after its promulgation.
. . .
The Instruction does not seem to take into account the fact that the
situations which it calls exceptional are in reality frequent, if not habitual,
in many dioceses:
My real difficulty with this restrictive decree is that it deals with
extraordinary ministers of Communion, and lay ministers in general, at best as
helpers who are reluctantly authorized for some exceptional situations for
which, unfortunately, no other solution can be found. My real concern is the
refusal to recognize the actual pastoral situations in many countries around
the world. (R. Stecher, Bishop of Innsbruck, Austria.)
[17] The author
understands that the Vatican wants vocations to be more numerous. She says that she cannot argue with this.
However, she wonders whether all hope for the future should be placed there. In
her view, lay ministry may turn out to be good for the Church. The author notes
that the situations that the Instruction purports to consider exceptional are
actually commonplace.
[18] Chapter 3.3 of the
article is entitled "Les
agents de pastorale". Here are some excerpts from pages 210-11:
[TRANSLATION]
. . . What ought to be an
exception has, in many cases, become standard practice or habit. This situation
can be found everywhere in Canada, Europe and the United States.
Whereas lay people were once
said to be involved in "an apostolate in the world," they now
exercise "pastoral ministries." The exercise of such ministries is
founded in baptism and in a juridical act: a mandate from the competent
authority. The activities undertaken by a pastoral agent in the context of
Canon 517, §2 include, among other things, preaching, catechesis,
presiding over prayer, spiritual direction, administration, assistance to those
who are non-practising and to non-believers, and the responsibility to
assure that sacramental celebrations are made available to the faithful. . . .
In his
discussion of such lay ministers, Roch Pagé describes them as "full-time
pastoral agents," preferring this term to "permanent pastoral agents"
because a mandate is never for life. It is for a full-time office and for
a certain length of time. Permanent ministries — ministries for life — are
reserved for ordained, instituted ministries. Even if these ministers
cannot exercise their ministry full time, they are still permanent. See Pagé, "Full-Time
Pastoral Ministers," pp. 167-168.
Let us say then that in participating in the exercise of a pastoral
office, clerics and laity are linked together by the stability that
their mandate gives them rather than by the permanence that constitutes
the basis of their mandate, since this can differ from one person to another
(Pagé, p. 168).
. . . The inclusion of lay people in the ministry of the
church and in offices of ecclesiastical responsibility has perhaps happened
because of the lack of priests, but it is here to stay. This is not a temporary
or provisional measure that will disappear as soon as there are enough ordained
ministers.
[19] What I take from
this analysis of the Instruction is that the distinction between ordained
ministers and lay persons who act in their place must be respected. However, what was supposed to be the
exception has become the norm in Canada, Europe and the United States. Lay
persons carry out their pastoral ministries on a full-time basis for a limited
term, though that term can encompass a great deal of a pastoral agent's
active life. The exercise of such ministries is founded in baptism and in a mandate
from lawful authority, which is a juridical act. These pastoral
ministries include preaching, catechesis, presiding over prayer, spiritual
direction, and accompanying and comforting the sick and grieving.
[20] The agent for the
Appellants of the Longueuil diocese also referred to an article by Alphonse Borras,
of Université catholique de Louvain, entitled "À propos des
ministères, L'articulation des ministères : de la théologie à la lettre de
mission" [Articulating the ministries: from the theology to the mission
letter] (2007) 179 Esprit
et Vie 1. I shall quote excerpts from pages 2, 3, 6 and 7:
[TRANSLATION]
If I had to characterize the major change in these last
decades in terms of theology, and, above all, in the practice of ministries, I
would readily say that, by laboriously but progressively overcoming the split
between clerics and the laity, we have moved from a ministerial monopoly of
priests to the implementation of a diversity of ministries. As I see it,
this change seems to have been accepted, albeit to different degrees, in the
local Churches of Western Europe and in North America. . . .
. . .
Indeed, one notes the development of a whole range of tasks assumed
by lay people who have the requisite qualities and mandate from the Church. One
has also seen that their initial formation continues to deepen in response to
the needs of the mission. We should also be happy about this change from a
role of helping priests to a genuine partnership with them. What is fortunate
is that in general, there is a tendency toward teamwork. . . .
. . .
The ministries entrusted to lay people are "non-ordained"
ministries.
. . .
For the lay faithful whom the Church
calls upon to exercise a ministry — in France, they are generically called "lay
people involved in an ecclesial mission" — the sacramental investiture of ordination does not
exist. Baptism, and the charisms that each of the lay faithful possesses,
constitute the theological foundation that justifies the Church in calling them
according to the needs of its mission. Their authorization does not come
from the Sacrament of Orders, but from their suitability and from the Church's
call (see Canon 228, §1). . . .
. . .
Theologically speaking, it is by virtue of their
baptism and their own particular charisms, and with the Church's discernment
and call in whatever form, that these lay faithful assume ministries that play
an indispensible role in building up the Church and contributing to its mission
in this place. They participate "more closely" in pastoral
responsibility. Their responsibility or function is either general or sectoral,
depending on whether they participate in the exercise of pastoral
responsibility in close association with the leadership of a community, or
carry out their work in a specific sector determined by the Church's pastoral
action such as catechesis, visiting the sick, preparation for sacraments,
hospitality, solidarity with the poor, charitable or humanitarian endeavours,
etc. This participation will take different forms, according to the nature and
needs of the ecclesial community in question.
[21] The author discusses
a major change over the past few decades in terms of the practice of
ministries. He notes that lay persons have taken on ecclesial duties and have
deepened their formation. The lay faithful whom the Church calls upon to
minister do not derive their capacity from sacramental investiture (i.e. ordination)
but from their suitability, and from the Church's call. The pastoral
mandate plays the role of an investiture.
[22] The appellants tendered Un document de
référence, adopté par les évêques du Québec lors de l'Assemblée plénière tenue
à Trois‑Rivières, le 12 mars 2004 concernant le mandat
pastoral décerné aux agentes et agents de pastorale laïques. [Reference document concerning the pastoral
mandates of lay pastoral agents, and adopted by the bishops of Quebec at their
plenary assembly in Trois-Rivières on March 12, 2004.] I shall quote
at length from the document:
[TRANSLATION]
The function of lay pastoral agents has been developing in Quebec
dioceses for several years now.
It would seem helpful at this point to clarify this topic so we can
develop some consistent language about this subject, and, where useful,
establish some similarity in the ways that we function.
. . .
Lay pastoral agents
The lay faithful are called, each according to his or
her situation, to participate in the mission that God gave to the Church to
enable it to accomplish that mission in the world (Canon 204). The term pastoral
agent designates those among them who have received a specific mission from
the bishop and who collaborate in the exercise of the pastoral responsibility
for the parish by carrying out tasks of leadership, animation and coordination.
It is advisable to reserve the expression "pastoral
agent" for those lay faithful, and to designate ordained ministers specifically
as deacons, priests and bishops, reserving the term "pastor" for the
latter two categories.
The pastoral mandate
The
pastoral mandate is the act by which the bishop, recognizing the suitability,
ability and competence of a member of the lay faithful, chooses that person to
collaborate in the exercise of pastoral responsibility, and gives him, or her,
a mission.
A
person is recognized as suitable when they accept their baptismal faith and testify
to it by the coherence of their life. They have significant experience of our
common ecclesial life, know how to make the connection between faith and life,
and are in complete solidarity with the thought and the mission of the Roman
Catholic Church through the diocesan bishop, notably in matters of doctrine.
Moreover, their state of life must conform to Church teaching, particularly in
matters of marriage.
The
diocesan bishop determines the necessary formation and requisite capacities to
exercise this mission.
The
bishop grants this mandate in writing for a determinate period. The text refers
explicitly to the criteria of suitability and the required abilities, and to
how the mandate will be terminated or revoked. The procedure for non-renewal or
revocation of the pastoral mandate is defined by diocesan decree. A pastoral
mandate does not necessarily require the bishop to guarantee employment. The
signature of the mandated person mandated indicates the person's acceptance.
The employment contract
The pastoral agent signs an employment contract with
his or her employer. The contract sets out the terms of employment. It
must state that the possession of a pastoral mandate is required in order for
the contract to be valid, and that the revocation or non-renewal of the mandate
automatically results in the termination of the employment contract.
The pastoral agent's employer in a parish is the fabrique
[administrative committee]. The employer of a diocesan pastoral agent is the
Corporation of the Roman Catholic Bishop. The pastoral agent's employer in
a civil setting is the civil institution itself.
[23] The document
specifies that pastoral agents are men or women who, under a special mission
from the bishop, collaborate in the exercise of pastoral responsibility by
carrying out tasks of direction, animation or coordination. The pastoral mandate is the document in which the bishop,
acknowledging the suitability, abilities and skills of a member of the lay faithful,
chooses that lay person to exercise a pastoral ministry.
[24] At page 18 of the Lettre
pastorale aux prêtres et aux diacres aux agentes et agents de pastorale et aux
personnes collaboratrices en paroisse [Pastoral letter to the priests,
deacons, pastoral agents and parish workers] (Official Communication
No. 7 of the Saint‑Jean de Longueuil Church, April 15, 2001), a paragraph
entitled [TRANSLATION] "Ordinary and extraordinary ministers" reads:
[TRANSLATION]
Ordinary ministers are those who carry out their duties pursuant to
their ordination and to the jurisdiction that the bishop has conferred on them.
Extraordinary ministers are those who receive a specific personal mandate
authorizing them to act in particular circumstances because there are no
ordinary ministers or because impediments prevent the ordinary ministers from
acting. In our diocese, a certain number of people can act as extraordinary
ministers of baptism and preaching. The two documents to which we are referring
specify their ministry and how it is to be exercised.
[25] The agent also referred to Post-Synodal
Exhortation Christifideles Laici of His Holiness Pope John Paul II
on the Vocation and the Mission of the Lay Faithful in the Church and in the
World (December 30, 1988). The following is an excerpt from it:
When necessity and expediency in the Church require it,
the Pastors, according to established norms from universal law, can entrust to
the lay faithful certain offices and roles that are connected to their pastoral
ministry but do not require the character of Orders. The Code of Canon Law
states: "When the necessity of the Church warrants it and when
ministers are lacking, lay persons, even if they are not lectors or acolytes,
can also supply for certain of their offices, namely, to exercise the ministry
of the word, to preside over liturgical prayers, to confer Baptism, and to
distribute Holy Communion in accord with the prescriptions of the law."
However, the exercise of such tasks does not make Pastors of the lay
faithful: in fact, a person is not a minister simply in performing a task,
but through sacramental ordination. Only the Sacrament of Orders gives the
ordained minister a particular participation in the office of Christ, the
Shepherd and Head, and in his Eternal Priesthood. The task exercised in
virtue of supply takes its legitimacy formally and immediately from the
official deputation given by the Pastors, as well as from its concrete exercise
under the guidance of ecclesiastical authority. [Footnotes omitted.]
[Emphasis
added.]
[26] This excerpt
reconfirms that lay persons may carry out certain duties of ordained ministers
when expediency in the Church requires it.
[27] In his book of
authorities, Counsel for the Respondent included the House of Commons debates from when the provision
in question was enacted. I am referring to the debates on
November 10, 1949, during which Mr. Sinclair, the Minister of
Finance, made the following statement about the reason for the deduction in
question:
The present exemption can be justified in
that a minister's home is, if I may use the expression, more or less his place
of doing business, the place where during week days he ministers to his
congregation and performs other functions in connection with his office.
[28] In this regard, most
of the Appellants spontaneously mentioned, without specific prompting, that
their residences are frequently used for pastoral meetings.
[29] The agent of the
Appellants from the St-Jérôme diocese outlined the dwindling numbers of
ordained ministers in the diocese: in 1985, there were 124 priests, and in
2008, there are 46. Twenty-five of those priests are permanently on duty, and
83 pastoral agents have been mandated.
[30] I will not repeat
all the points made by the agent in question, because she agreed with the
person who represented the Appellants from the Longueuil diocese. Bishops
are responsible for making arrangements for the pastoral service to the
Christian communities of their diocese. A pastoral mandate is an act in which a
bishop, recognizing the suitability, qualifications and skills of a lay person,
chooses that person to collaborate in the exercise of this pastoral
responsibility and gives him, or her, a mission.
[31] The agent referred
to paragraphs 228(1) and 230(3) of the Code of Canon Law, which read:
Can. 228 - § 1. Lay
persons who are found suitable are qualified to be admitted by the sacred
pastors to those ecclesiastical offices and functions which they are able to
exercise according to the precepts of the law.
Can. 230 - § 3. When the
need of the Church warrants it and ministers are lacking, lay persons, even if
they are not lectors or acolytes, can also supply certain of their duties,
namely, to exercise the ministry of the word, to preside offer liturgical
prayers, to confer baptism, and to distribute Holy Communion, according to the
prescripts of the law.
[32] It would also be helpful,
in my view, to reproduce paragraphs 3 to 6 of Interpretation Bulletin IT‑141R:
¶ 3. Whether a person is a "member of the clergy" or a
"regular minister" depends upon the structure and practices of the
particular church or religious denomination.
¶ 4. A "member of the clergy" is a person set apart
from the other members of the church or religious denomination as a spiritual
leader. It is not necessary that the process of appointment be referred to as
ordination or that the appointment be by someone higher up in the
ecclesiastical hierarchy; it may be done by the congregation itself. It is
sufficient that there be a formal or legitimate act of recognition, and it
requires a serious and long-term commitment to the ministry. Priests, pastors,
ministers, rabbis, imams, commended workers and other persons who have been
commended, licensed, commissioned or otherwise formally or legitimately
recognized for religious leadership within their religious organization may be
members of the clergy.
¶ 5. A "regular minister" is a person who
·
is authorized or empowered to perform spiritual
duties, conduct religious services, administer sacraments and carry out similar
religious functions. Religious functions may include participation in the
conduct of religious services, the administration of some of the rituals,
ordinances or sacraments, and pastoral responsibilities to specific segments of
the religious organization;
·
is appointed or recognized by a body or person
with the legitimate authority to appoint or ordain ministers on behalf of or
within the religious denomination; and
·
is in a position or appointment of some
permanence.
¶ 6. In
the absence of a legitimate appointment or recognition, the mere performance of
the duties of a minister will not suffice to constitute a "regular
minister ".
[33] Let us now consider
each Appellant's particular case, beginning with the Appellants from the Longueuil
diocese.
[34] The Appellant
Lisette Simard‑Côté, a pastoral agent, is responsible for the
ministry of catechesis in three parishes. Here are the three paragraphs of the
pastoral mandate of June 30, 2004, signed by Bishop Berthelet and by Jean‑Pierre Camerlain,
the priest chancellor:
[TRANSLATION]
In order to meet the
pastoral needs of the Parishes of Saint-Isaac-Jogues, Saint‑Jean-de-la-Lande
and Saint-Thomas-de-Villeneuve, I hereby renew your mandate as pastoral agent
for those parishes and as member of the pastoral team assigned to this parish
grouping. Although you must be aware of the pastoral needs of the parish as a
whole, your primary tasks will be the catechetical needs for which you are
responsible in these parishes. You will also assist in the process of Christian
initiation. This mandate is subject to your adherence to
Episcopal Regulation No. 7 and to the signing of your employment contract.
This term of this mandate commences
August 1, 2004 and ends on July 31, 2007. You will fulfil this mandate in close
collaboration with the personnel of the parish, drawing inspiration primarily
from the letter, Service de la paroisse [Parish service] (Official
Communication No. 7).
May the Lord sustain your
enthusiasm for His service and may He bless you.
[35] The Appellant Michèle
Richard Auclair adduced a pastoral mandate dated July 14, 2003, in
which the subject heading refers to the position of pastoral animator, parish
activity coordinator and pastoral team member assigned to the Immaculée
Conception and Saint-Hubert parishes for a term commencing on August 1, 2003,
and ending on July 31, 2006.
[36] The Appellant Colette
Lefebvre adduced her pastoral mandate, signed on June 29, 2004, for
the period from August 1, 2004, to July 31, 2007. The first
paragraph of the mandate reads:
[TRANSLATION]
In order to meet the pastoral needs of Résurrection Parish, and of
its six Christian communities, I hereby renew your mandate as pastoral agent
and a member of the pastoral team for this parish. Although you must be aware
of the pastoral needs of the parish as a whole, your primary tasks will be in
communications, as well as funeral ministry and ministry to the grieving. Your
particular responsibility will be as liaison for the Support Committee of the
Notre-Dame-de-l’Espérance Christian community. This mandate is subject to
your adherence to Episcopal Regulation No. 7 and to the signature of
your employment contract.
[37] One of the documents
adduced by Ms. Lefebvre is a 2000 pastoral mandate authorizing her to
administer the sacrament of baptism to children.
[38] The Appellant Denise
Robert Godin tendered two mandates received for the year 2005. The first
mandates her as a pastoral agent. The second is different. I shall quote
from both:
I appreciate your willingness to renew
your service to the diocese for another year. The year just ended was as
busy as the previous ones: all the parishes of your region decided to embark on
an evangelization plan and have put in place the structures that will enable
them to carry it out. We must now implement these projects and ensure that our
Church is more alive in each of the parishes. For this reason, I am
thankful that you have agreed to make a contribution as regional animator.
Consequently, I appoint you as animator
of the South-West Pastoral Region. This appointment came into effect on
August 1, 2004, and will end on July 31, 2005. As usual, it
is subject to your adherence to Episcopal Regulation No. 7 and
to the signing of your employment contract.
You have the assurance of my prayers and
support, and I wish you courage and joy in your service of the Church.
I know that you were contemplating
retirement after several years in school-based pastoral service and as a
regional animator, but new needs have led me to ask for your service in
managing the Diocesan Centre. I thank you for hearing my call and agreeing to
answer it.
Consequently, I appoint you as executive
assistant in the Diocesan Centre. In this capacity, you will share certain
administrative responsibilities with Abbot Claude Hamelin, who will
manage the centre as moderator of the diocesan curia.
This appointment came into effect on
August 1, 2005, and shall end on July 31, 2007.
May the Lord bless you and assist you in
your work with all the Diocesan Centre and regional staff.
[39] The Appellant Micheline
Bolduc has been accepting pastoral mandates since September 1991. Her
mandate for 2005 was to be a pastoral agent and parish activity coordinator for
the Saint-Isaac-Jogues, Saint-Jean-de-la-Lande and Saint‑Thomas-de-Villeneuve
parishes. The term of the mandate dated June 30, 2004, was from
August 1, 2004, to July 31, 2007.
[40] The Appellant Pierrette
Fortin Raymond worked as a pastoral agent for several years. According to a
letter from Bishop Berthelet, dated March 28, 2006, Ms. Fortin
Raymond is currently an executive assistant with the human resources
department. She is responsible for an administrative task and for the
coordination of activities related to diocesan organization. Ms. Fortin
Raymond did not adduce a pastoral mandate.
[41] The Appellant Paul
De Leeuw did not adduce a pastoral mandate either. His duties for the Longueuil
diocese are described as essentially administrative, economic or
accounting-related. He gives fabriques [parish administrative
committees] administrative and legal guidance. He is also responsible for
religious heritage, church restoration and religious art. In his letter
dated March 28, 2006, to the Canada Revenue Agency, Bishop Berthelet describes
Mr. De Leeuw's duties as follows:
[TRANSLATION]
Mr. Paul De Leeuw is hired as a member of the
administrative department of the diocese of Saint-Jean-Longueuil as director of
the department that assists parish administrative committees (fabriques).
He will work in administration and will coordinate activities related to
diocesan structures.
[42] We shall now discuss
the Appellants from the Saint‑Jérôme diocese.
[43] The Appellant Linda
Diamond adduced her pastoral mandate, which is signed by Bishop Gilles Cazabon
and chancellor Claude Massicotte, and is dated June 18, 2004:
[TRANSLATION]
In order to
meet the pastoral needs of Saint-François-Xavier Parish, I hereby renew your
appointment as parish pastoral animator and parish pastoral team member, for the
period from August 1, 2004, to July 31, 2007.
Your work
in pastoral animation and Christian values education among the members of the
Saint-François-Xavier Christian community is of great importance. By your
witness and your pastoral activity, you are contributing to the people's growth
in faith in the God of Jesus Christ, and to their becoming "living stones"
in the Church of Saint-Jérôme.
I invite
you to faithfully attend the meetings of the pastoral team, pastoral zone, and AALP,
as well as the diocesan pastoral days. These different meetings are the best
occasions to show that you belong to the diocesan Church, and to create bonds
of solidarity with pastoral agents, priests and laity.
Working in
faith education is a demanding pastoral activity. It is essential that you make
sure that you have time for renewal, and that you continue your theological and
pastoral formation. Obtaining your Bachelor of Theology is a goal to pursue so
that you will be able to fulfill the mission entrusted to you. Ongoing
formation should also be included in your schedule.
The
comprehensive 2001-2006 plan, "For a Missionary Church", commits the
Church of Saint-Jérôme to important parish reorganizations. As part of this
change that we are making in order to respond to the call for a new
evangelization, the "zones" and, increasingly, the "sectors",
will play a major role in the life of our diocese. I ask that you draw
inspiration from these policy directions, and that you actively pursue these
opportunities for exchange, mutual support, and common action in your milieu.
May the
Spirit guide you in your mission of evangelization. Once again, let me express
my confidence in your pastoral ministry.
[44] The Appellant Jean-Pierre
Desnoyers tendered his pastoral mandate dated November 27, 2003, and
signed by the same people as the preceding Appellant's mandate. Mr. Desnoyers
was mandated as parish pastoral animator for the Bienheureuse-Marie-Anne-Blondin
Parish from January 1, 2004, to July 31, 2006.
[45] The Appellant Desnoyers
also adduced pastoral mandates that he received at least as early as 1994.
[46] All the Appellants
except Paul De Leeuw have degrees from a theology faculty. The Appellants
who are pastoral agents have had such duties for most of their active lives.
[47] Counsel for the
Respondent adduced the appellant's pastoral mandate in Pereira with a
view to showing that the mandate was similar to the ones adduced in the instant
appeal. Mr. Pereira's appeal was dismissed. We will discuss the ground for the
dismissal further on. The mandate, signed by Marc Cardinal Ouellette,
Archbishop of Québec, and dated May 28, 2004, reads:
[TRANSLATION]
Dear Co-Worker,
With the
agreement of the director of the institution that hired you, I am pleased to
renew your mandate as pastoral animator for the Centre hospitalier de la région
de l’Amiante [Amiante Region Hospital], for four days a week, until July 31,
2007.
Your status
as pastoral animator, rooted in your baptism and confirmation, authorizes you
to participate in my pastoral responsibility for the Church of Québec according
to your charisms and the responsibilities given to you. I count you as a member
of the pastoral team in this mission.
As a
witness of the risen Christ and inspired by gospel values, you will care in
particular for people who are suffering, sick and dying, and for their
families, those who are close to them, and for the staff. You will show the
Father's love, and the tenderness and compassion of Christ Jesus in the
communion of the Holy Spirit. You will accompany people in their search for
meaning and in their faith journey.
May you
undertake your ministry in union of spirit and heart with the Pastor of this
diocese and in solidarity with the diocesan mission. You will strive to involve
the faithful in your pastoral activity, inviting them to participate because of
their baptism and the particular gifts they have received from the Holy Spirit.
I thank
you, and I am pleased to be able to count on your commitment. I ask the Lord to
keep you rooted in faith, firm in your hope and radiant in love.
Given at Quebec, May 28, 2004.
Marc Cardinal Ouellet
Archbishop of Quebec
Analysis and conclusion
[48] A review of the case law discloses that
certain decisions conflict with each other. It also reveals a certain
amount of hesitation in arriving at a decision, because the structures of the
church to which the appellants claim to belong are not adequately described in
the evidence adduced at the hearing.
[49] As to the issue of
conflicting decisions, I would say that Noseworthy v. Canada, [1999] T.C.J.
No. 209 (QL) and Kolot v. Canada, [1992] T.C.J. No. 673
(QL) are on one side, and that Hardy v. Canada, [1997] T.C.J. No. 1191
(QL) and Pereira v. The Queen, 2006 TCC 300, [2006] T.C.J. No. 405
(QL) are on the other.
[50] In Noseworthy, a pastoral care practitioner was appointed by the Roman
Catholic Church to the position of chaplain in a women's prison.
[51] Hamlyn J. was of the
opinion that, in view of the appellant's duties (discussed at paragraphs 18-20
of the decision), she was the spiritual leader within the institution where she
worked on an ongoing basis. The judge held that although the appellant was not
a member of the clergy, she was a regular minister of the religious
denomination in question.
[52] Kolot also involved a pastoral agent — specifically, a Christian education
associate whose duties included Sunday school. She did not ask to be authorized
to give the sacraments of the United Church of Canada, but, based on the
evidence, she could have made such a request, in which case it would have
been granted. Judge Beaubier allowed the appeal.
[53] In Pereira, Bédard J. did not come
to the same conclusions as the Court arrived at in Noseworthy, where the
facts were relatively similar except that the pastoral action in Pereira was
hospital-based. I quoted from that appellant's pastoral mandate at paragraph 46
of these Reasons for Judgment. Counsel for the Respondent referred to it with a
view to showing that it was similar to the Appellants' pastoral mandates.
[54] The functions of the
appellant Pereira are also described in Pereira, supra, specifically at paragraph 2:
. . . These duties include religious and spiritual support of the
ill and their families, organization of chaplaincy activities, celebration of
regular weekly liturgies and special liturgies, celebration of benediction
rituals, last rites, leadership, training and supervision of chaplaincy
volunteers, moral assistance and support, as contact person, on questions of
ethics and bioethics. . . .
[55] I will also quote
from paragraphs 17, 18, 19, 21
and 22 of the decision:
17 This Court has reviewed
the meaning of the term "regular minister" several times. Lamarre
Proulx J., in Côté [Côté v. Canada, [1998] T.C.J. No. 762
(QL)], appears to adopt the
meaning of "regular minister" given by Lord MacDermott in Walsh v.
Lord Advocate, [1956] 3 All E.R. 129 (H.L.), in paragraph 20 of her
decision:
In my opinion the words "a
regular minister" connote a class which forms but a part of the
denomination in question and is acknowledged by that denomination as having a
superior and distinct standing of its own in spiritual matters. . . . Lord MacKintosh
puts this requirement very clearly when, speaking of the "regular minister",
he says
. . . he must have by virtue of his appointment
as a minister what might be called 'a clergyman status' which sets him apart
from and places him over the laity of his denomination in spiritual matters.
18 In Osmond v. Canada, No.
97-1446(IT)I, December 10, 1998, [1998] T.C.J. No. 1086, and Kolot v. Canada,
No. 91-718(IT), November 9, 1992, [1992] T.C.J. No. 673, Bonner and
Beaubier JJ. also appear to adopt the definition of "regular minister"
given by Lord MacDermott in Walsh.
19 In light of this
definition, the Appellant did not convince me that the Catholic Church
recognized him as having a superior and distinct rank in spiritual matters.
Indeed, the Appellant did demonstrate that, as an employee of the CSSSRT, he
performed pastoral animation in his employer's establishment, thanks to an
appointment by the archbishop of Québec. Did the archbishop's appointment make
the Appellant someone of superior and distinct rank in spiritual matters?
In my opinion, the Appellant simply did not supply satisfactory evidence in
that respect.
. . .
21 In light of the
conclusions arrived at by Rip J. in Hardy, on the meaning of the
term "regular minister," the following questions, in my opinion, must
be asked:
(i) Did the Catholic Church
consider the Appellant to be a regular minister? Did the mandate given the
Appellant by the archbishop of Québec, in itself, confer on the Appellant the
status of "regular minister" of the Catholic Church? Was it not
rather a temporary appointment for certain liturgical actions? Did this
temporary (if that is the case) appointment still confer on the Appellant the
status of "regular minister" of the Catholic Church? Is the status of
"regular minister" not conferred by the Catholic Church only on
ordained members? Due to the fact that the Catholic Church is short of priests
in Quebec, does it need to give, as in this case, certain interim duties to lay
members with adequate training?
(ii) Did the Appellant
occupy a position with permanency?
22 Each religion has its
own practices, traditions and rules. To determine if a person is a "regular
minister," the structure and practices of the Church in question must be
considered. Counsel for the Respondent was the only one who attempted to
enlighten me on the rules, practices and traditions of the Catholic Church
relating to the status of "regular minister". Indeed, in his
submissions, counsel for the Respondent argued, relying moreover on the Pope's
instructions with respect to this, that the rules of the Catholic Church
clearly lay down that it is illegal to confer on a non-ordained member the
status of "regular minister" or "chaplain".
Unfortunately, I cannot accept the arguments of counsel for the Respondent in
this respect. He should have known that foreign law, in this case canon
law, is equated with a fact. Whoever relies on it must allege it in their
written submissions and prove it adequately, which was not done.
[56] Bédard J. held that there was not enough
evidence that the appointment made by the archbishop caused the appellant to
have a superior and distinct rank in spiritual matters (paragraph 19). The
fact that the appellant was not appointed for life meant that his appointment,
though full-time, was temporary, not permanent, in nature (paragraph 23).
[57] The judge in Pereira (paragraph 22)
would have liked to hear the Church's position on the place of pastoral
agents within it.
[58] In Hardy, which
was also about a Roman Catholic pastoral agent, Judge Rip held that the
appellant was not a regular minister of that Church. I shall quote
paragraphs 21, 23 and 24 of the decision:
21 Thus, Lord Justice-General
Normand and Lord Moncrieff appear to infer that a "regular minister"
is one who
(i) performs spiritual
duties, the conduct of religious services, the administration of sacraments and
the like;
(ii) is appointed by a
body or person with the legitimate authority to appoint or ordain ministers on
behalf of the denomination; and
(iii) is in a position
or appointment of some permanence.
In the absence of a
legitimate appointment, the mere performance of the duties of a minister will
not suffice, in their view, to constitute a "regular minister".
. . .
23 Each
religion has its own practices, traditions and rules, and any branch of a religion
may have different practices, traditions and rules from other branches of the
same religion. Whether one qualifies as a regular minister or as a member of
the clergy, it seems to me, depends on one's religion and, in some cases,
one's church, synagogue, mosque or other congregation. In other words,
eligibility for the deduction is religion and practice dependent.
24 I am
not satisfied that Ms. Hardy has proven that she was a regular minister of the
Roman Catholic Church. The fact that she is a Roman Catholic means she has
a greater burden to prove her claim than a person whose religion accepts women
in its clergy. Ms. Hardy trained for her position and was appointed by the
Bishop of London to perform spiritual duties. This was her full‑time
occupation. Her authority to perform such duties appears to be at the pleasure
of the Bishop of London and, therefore, her appointment does not appear to be
permanent.
[59] Actually, the four
decisions discussed above equate "member of the clergy" with
"regular minister" in the sense that both must have the power to
administer the sacraments. I
would also say that Hardy and Pereira equate "regular
minister" with "permanent minister". Further on, we shall see
the distinctions that must, in my opinion, be drawn.
[60] The judge in Pereira
would have preferred to know more about the structure of the Roman Catholic
Church. The evidence that he heard did not convince him. In my
opinion, I have heard relatively thorough evidence regarding the place of
pastoral agents within the Roman Catholic Church.
[61] With respect to the
place of pastoral agents in the Roman Catholic Church, counsel for the
Respondent adduced the Instruction, and the Appellants' representatives
adduced scholarly and Church writing that analyzes and defines the role of
pastoral agents.
[62] In the Instruction, the Vatican reiterates
that pastoral agents are extraordinary ministers, and are different from members
of the clergy, who have received the Sacrament of Orders and are ordinary
ministers. At a time when there is a shortage of priests, which the Vatican
hopes is temporary, the Vatican is allowing lay persons to minister, and has
established a legal framework in which they may do so.
[63] Under this legal
framework, pastoral agents can carry out certain ecclesial responsibilities or
duties that are indispensible in carrying out the Church's mission. They
perform these duties in the place of ordained ministers, and do not perform all
such ministers' duties. Pastoral agents derive their legitimacy from an
official delegation by the bishop, and, in carrying out their duties, they are
under ecclesiastical authority. It is the responsibility of the competent
Church authority, that is to say, the diocesan bishop, to assign and regulate pastoral ministries.
Diocesan bishops assign pastoral ministries to people who have the requisite qualifications:
suitability, charisms and theological formation.
[64] According to the
rules of the Roman Catholic Church, pastoral agents are not clergy. In fact, the
Appellants do not claim to be clergy. However, they claim to be regular
ministers of the Church.
[65] The courts have
consistently held that in order for a person to be a regular minister of a
religious denomination, there must be an appointment by the lawful authority of
that church, authorizing the person to minister spiritually to the faithful of
that church or to others, under the terms of the assigned mission or mandate,
on an essentially ongoing basis, in accordance with the beliefs and dogmas
of the church in question.
[66] Does such an
appointment require a specific investiture? In my opinion, one must refer to
the rules of the church, as one would do with respect to the investiture of
clergy. In the Roman Catholic Church, pastoral mandates or mission letters fulfil
the function of an investiture document for the extraordinary ministers in
issue.
[67] Must a person be
appointed as a minister for life in order to be a regular minister of a church?
Must a person have the right to administer all the sacraments of his or her
church in order to be a regular minister?
[68] Is there something
in paragraph 8(2)(b) that prevents a church from having members of
the clergy and regular ministers? I see no such bar in that provision. It is
true that some of the cases equate the two terms. However, I prefer to remain
true to the main principle established by the case law, namely, that the terms
are defined by the structure of the denomination in issue.
[69] In order to
determine whether a denomination permits clergy and regular ministers to
co-exist for the purposes of its ministries, one must examine its structure. In
the Roman Catholic Church, we have seen that there is such co‑existence,
and we have also seen that
priests are appointed for life, and that extraordinary ministers are appointed
for the duration of their mandate, and carry out the pastoral ministries
assigned to them.
[70] The evidence
discloses that the bishops of the two dioceses in issue work within the legal
framework that the Vatican has established for this class of persons. The bishops,
taking into consideration the
needs of the Church's mission and the
person's qualifications (suitability, charisms and formation), issue a mandate describing
the pastoral ministry that the person is assigned, and setting out the duration
of the person's mandate, which is normally a few years. These mandates are
usually renewed, and are therefore frequently exercised for the person's entire
active life. Pastoral agents must work with ordained ministers as a team
in carrying out pastoral action.
[71] The evidence
discloses that pastoral agents, called extraordinary ministers, are regular
ministers of the Church. Their ministry is completely integrated, on a regular
basis, into the Church's ministries, including the Ministry of the Word,
catechesis, visiting the sick, sacramental preparation and mystagogia, ministry
for those who are preparing for a funeral and to the bereaved, hospitality,
solidarity with the poor, and charitable or humanitarian action. Without the
ministry of lay persons, the Church would be unable to go on. The Bishop
of the Longueuil diocese stated that their role is essential, the various
authors that were cited are in agreement, and the Vatican itself has expressed
the same opinion by providing a legal framework for these non-ordained lay
persons.
[72] To paraphrase Lord MacDermott in Walsh v. Lord
Advocate, [1956] 3 All E.R. 129 (H.L.), it is clear that, in
carrying out their ministries, pastoral agents have a status that sets them
apart from and places them over the laity of their denomination. They
constitute a class which forms part of the denomination in question, and which
is acknowledged by that denomination as having a distinct and superior standing
in spiritual matters.
[73] I therefore conclude
that, according to the current regulatory structure of the Roman Catholic
Church, pastoral agents act as regular ministers within the Church. That
status is conferred on them by a pastoral mandate in which they are assigned a
pastoral ministry for a determinate term. Thus, they have the status of regular
ministers within the meaning of paragraph 8(2)(c) of the Act for
the duration of that mandate.
[74] Consequently, the
appeals of Colette Lefebvre,
Lisette Simard Côté, Michèle Richard Auclair,
Micheline Bolduc, Jean‑Pierre Desnoyers and Linda Diamond are
allowed.
[75] However, I must determine
the outcome for those Appellants who were not pastoral agents, namely the
Appellant Paul De Leeuw; the
Appellant Pierrette Fortin Raymond; and the Appellant Denise Robert Godin, who
ceased to be a pastoral agent during the year 2005.
[76] With regard to Mr. De Leeuw, he submitted that a priest
who had the same functions would be entitled to the deduction. This is probably
the case, because the priest would have clergy status. Mr. De Leeuw is not
a member of the clergy, and, based on the evidence, I am of the opinion that he
does not have regular minister status. He did not adduce a pastoral mandate and
his work is not part of the Church's pastoral action. His appeal must therefore
be dismissed.
[77] The decision
concerning the Appellant Pierrette Fortin Raymond is more difficult to make,
because she has a great deal of education in theology and was a pastoral agent
for several years. However, the absence of a pastoral mandate inclines me to
dismiss her appeal. Regular ministers are invested by a pastoral mandate in
connection with a pastoral ministry.
[78] As for the Appellant
Denise Robert Godin, her duties changed on August 1, 2005. Based on
the evidence adduced, she was no longer a pastoral agent as of that date. Her
pastoral mandate has ended. Thus, her appeal is allowed for the part of the
2005 taxation year that expires on August 1, 2005.
Signed at Ottawa,
Canada, this 27th day of June 2008.
"Louise Lamarre Proulx"
Translation
certified true
on this 30th day
of September 2008.
Brian McCordick,
Translator
Email this Content