Yesterday (July 24, 2009) the Supreme Court of Canada ruled that all driver’s licences in Alberta must require photo ID regardless of one’s religious beliefs. After hearing the appeal by members of the Wilson Hutterite Colony more than nine months ago, the Supreme Court of Canada delivered a close 4-3 judgment to uphold Alberta rules requiring a digital photo for all new licences. Some Hutterite sects, however, believe the second commandment forbidding idolatry prohibits them from willingly having their photograph taken.
It is not the purpose of this blog nor was it that of the Court to determine the validity of this interpretation of scripture. Nor do all Hutterites hold to this view. The fact is that there are those who sincerely believe this and to accommodate this belief would not have required the Alberta government to accept criminal behaviour by this religious group. As Don Hutchison, Vice-President and General Legal Counsel for the Evangelical Fellowship of Canada said in yesterday’s press release by the EFC,
Although the Supreme Court ruled narrowly – 4 to 3 – in favour of the Alberta government’s photo-licensing program, the strong dissenting opinions of Justices Abella, LeBel and Fish combined with comments of Chief Justice MacLachlin have added helpful jurisprudence in regard to an understanding of the community or group aspect of religious freedom in application of the Charter of Rights and Freedoms. As Justice LeBel stated, ‘Religion is about religious beliefs, but also about religious relationships.’
This was an ideal case for the court to clarify this right as it did not involve accommodating criminal activity (like polygamy) or recognizing alternative legal systems (like Shari’a law). It did ask the court to define the extent to which the religious beliefs and practices of a community or a congregation have standing and protection under the Charter.
Hence, it seems to me that it would have been entirely reasonable for the Supreme Court to have ruled in favour of the Hutterites. In the same statement, Ruth Ross, Executive Director of the Christian Legal Fellowship said,
We’re pleased to see the court reinforce its decisions in the Trinity Western and Amselem cases and add to them unanimous agreement that there are collective aspects to religious freedom. We were disappointed that the application of those collective aspects to this particular case did not result in recognition of the severe impact of the government regulation on the practices of an established religious community.
Certainly a mixed ruling and somewhat puzzling. From what I have been able to see, the Court decided that the need for security in preventing fraud, identity theft and terrorism can override an individual’s or a group’s freedom of religion. In writing for the majority Chief Justice Beverly McLaughlin concluded: “The goal of setting up a system that minimizes the risk of identity theft associated with driver’s licences is a pressing and important public goal” and that “the universal photo requirement is connected to this goal and does not limit freedom (of) religion more than required to achieve it.” Justice Abella, however, strongly objected to the majority ruling writing:
The government of Alberta did not discharge its burden of demonstrating that the infringement of the Hutterites’ freedom of religion is justified under s. 1 of the Charter.
The purpose of the mandatory photo requirement and the use of facial recognition technology is to help prevent identity theft. An exemption to the photo requirement for the Hutterites was in place for 29 years without evidence that the integrity of the licensing system was harmed in any way. In addition, more than 700,000 Albertans have no driver’s licence and are therefore not in the facial recognition database. The benefit to that system therefore, of adding the photographs of around 250 Hutterites who may wish to drive, is only marginally useful to the prevention of identity theft. While the salutary effects of the mandatory photo requirement are therefore slight and largely hypothetical, the mandatory photo requirement seriously harms the religious rights of the Hutterites and threatens their autonomous ability to maintain their communal way of life. The impugned regulation and the alternatives presented by the government involve the taking of a photograph. This is the very act that offends the religious beliefs of the Wilson Colony members. This makes the mandatory photo requirement a form of indirect coercion that places the Wilson Colony members in the untenable position of having to choose between compliance with their religious beliefs or giving up the self‑sufficiency of their community, a community that has historically preserved its religious autonomy through its communal independence.
The harm to the constitutional rights of the Hutterites, in the absence of an exemption, is dramatic. On the other hand, the benefits to the province of requiring the Hutterites to be photographed are, at best, marginal. This means that the serious harm caused by the infringing measure weighs far more heavily on the s. 1 scales than the benefits the province gains from its imposition on the Hutterites. The province has therefore not discharged its onus of justifying the imposition of a mandatory photo requirement on the members of the Wilson Colony.
[click here for a transcript of the full Supreme Court decision]
As for the Hutterites involved, there is no appeal to this decision and so they have some decisions to make. One judge suggested the colony could hire drivers. I’m sure that was considered helpful to a group that historically and theologically values its communal independence. Another possibility is that they decide to leave Alberta. Neighbouring Saskatchewan may not offer much refuge, however, as the Saskatchewan's vehicle insurance agency, Saskatchewan Government Insurance, is now reviewing the Supreme Court decision to see if they should follow Alberta’s lead.
Sadly, this is second ruling this week by Canadian courts where the priority of an individual or group’s religious beliefs have been ruled against when found contrary to the demands of the state and requests for exemptions on religious grounds denied. Discussing this with my wife over dinner tonight, I observed how much things seem to have changed since I had joined The Voice of the Martyrs in 1997. We simply didn’t hear of special interests or security concerns being used to deny exemptions for sincere religious beliefs that have no criminal consequences. I wondered if it was just that I am more aware of them now or has Canadian society shifted somehow? I suspect that it is the latter.