For the past 29 years in Alberta, Hutterite communities have been exempt from the requirement to have their photograph taken in order to obtain a driver’s license. On July 24,2009, the Supreme Court of Canada put an end to that.
The two Hutterite communities in question object to having their picture taken on religious grounds. Specifically, they say that it offends the second commandment, “You shall not make for yourself an idol, or any likeness of what is in heaven above or on the earth beneath or in the water under the earth” (Exodus 20:4). Since 1974, a compromise between religion and regulation permitted the government of Alberta to issue special drivers’ licenses to those with religious objections.
This changed, however, in 2003 when Alberta passed a regulation making photographs universally mandatory. Alberta wanted to create a facial recognition database that would enable them to ensure that each license in the system is connected to a single individual, and that no individual has more than one license. The justification for this requirement is that it will minimize identity theft in a province where drivers’ licenses are the primary form of identification used.
The Hutterite colonies say that they are being asked to choose between their religion and their ability to engage in society. They say in their rural community, they have to get people to the doctor, appointments and do trade with the local communities around them. They challenged the regulation and won at both the trial and appeal levels. Their victories ended on July 24, 2009.
The judgment from the Supreme Court of Canada indicated a clear division between the judges who split 4/3 in their decision. There was agreement between them that the provision plainly represented an infringement on the group’s freedom of religion. What was contentious was whether that infringement was justified.
The government’s justification for infringing on a religious group’s freedom is exactly the kind of rational that religious groups across Canada need to sit up and pay attention to. One of the key stages of this analysis asks our Court to assess the proportionality of the infringement — i.e. does the benefit outweigh the cost?
Chief Justice McLachlin identifies the “task at hand” is to assess “the seriousness of the limit on religious practice… This is not a case like Edward Books or Multani where the incidental and unintended effect of the law is to deprive the adherent of a meaningful choice as to the religious practice”. She then goes on to say that the inability to drive on a highway is a cost that “does not rise to the level of depriving the Hutterian claimants of a meaningful choice as to their religious practice, or adversely impacting on other Charter values”. Herein lies the rub.
Is the ability to drive, especially when one lives in a rural community, an important aspect of interacting in society? I suspect that many of us feel that it is.
The Chief Justice’s comparison to Multani is an interesting one. The Supreme Court of Canada in Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 looked at the risk a student wearing a kirpan (a religious, ceremonial dagger) posed to the school population. They found that while the risk did exist, there was no evidence of any recorded cases of the dagger having been used for violence in a school setting. So just because the knife could be used for violence, there was no evidence to support that this student would and therefore, this was not a sufficient reason to infringe upon his Charter right.
Similarly, Justice Abella noted in this case, “There is, in fact, no evidence from the government to suggest that the Condition Code G licenses in place for 29 years … caused any harm at all to the integrity of the licensing system” (para. 156). Like in Multani, just because the license could be used for identify theft does not mean that it will. In fact, this author would question how many transactions could realistically be completed with a picture-less, rare form of identification without at least raising a few eyebrows. The risk here appears very low.
For our highest court to say that inability to drive represents a minimal impairment is, controversial at best. The Hutterite community certainly feels so and has since indicated that they may move from the province of Alberta. Now the question is, if the top court in Canada cannot find room to accommodate their religious beliefs, where will they go?
This article was written by Meghan A. Maddigan, a lawyer who practices at the law firm of Kuhn LLP. It is only intended as a guide and cannot cover every situation. It is important to get legal advice for specific situations. If you have questions or comments about this case or other legal matters, please contact us at 604-864-8877.