The SCC’s Distressing Decision in Alberta v. Hutterian Brethren

Mandating Photographic Driver’s Licences

The Supreme Court has finally released judgment in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 – a case closely watched by constitutional scholars and popular media for its engagement with the Charter’s s. 2(a) freedom of religion guarantee. Very unfortunately, the outcome may signal to members of some religious faiths that their sincere beliefs and practices, incommensurate with broad social legislation, may not be guaranteed at all.

The case concerns Alberta’s Traffic Safety Act, R.S.A. 2000, c. T-6, and its long-standing requirement that all drivers of motor vehicles on highways hold a valid photographic licence. Since 1974, the requirement was excepted for individuals who objected to having their photos taken on religious grounds, until a 2003 amendment made the requirement universal. The primary reason for doing so was to ensure the integrity of facial recognition software used in combating identity-related fraud.

The claimant members of the Wilson Colony of Hutterian Brethren maintain a communal and self-sufficient lifestyle in rural Alberta. Its members believe that the Second Commandment, forbidding idolatry, prohibits them having photographs or other likenesses taken of them. That belief and the Province’s universal licensing scheme would seem to be in conflict, necessitating that Colony members cease highway driving in adherence to their faith or continue highway driving despite it. The question is, of course, whether compelling such a choice would withstand Charter scrutiny, and is one of considerable significance as Colony members contend that highway transportation is integral to their fulfilling responsibilities to the community.

In a rare 4-3 decision, the Supreme Court narrowly found for the Province, leaving this writer distressed by the majority’s atypical indifference to religious freedoms in the wake of an unconvincing legislative design.

Justifying the Charter Infringement

At issue in this case is not whether Alberta’s Traffic Safety Act violated s. 2(a) of the Charter by encroaching upon the Wilson Colony’s sincerely-held religious beliefs – indeed, the lower courts proceeded on the assumption that it had.

Rather, at issue is whether such encroachment could be saved by s. 1 as a reasonable limit, demonstrably justified in a free and democratic society. For the majority, McLachlin C.J.C. answered in the affirmative, while Abella J., LeBel J., and Fish J. disagreed in separate dissents.

Prescribed by Law

Little debate surrounded the preliminary inquiry of the s. 1 analysis, considering whether the impugned measure is sufficiently accessible and intelligible to be “prescribed by law”. McLachlin C.J.C. dispatches this question routinely and Abella J. does not address it, both keenly aware that this case engages novel legal issues with respect to other elements of s. 1.

Qualifying the Measure’s Objective

The high court then proceeds with the Oakes test, designed to balance the benefits and detriments flowing from the infringing measure.

In the first stage, both McLachlin C.J.C. and Abella J. accept that the universal photo requirement’s objective –  to compile a database of facial photos ensuring that each driver’s licence is connected to a single individual and each individual is connected to a single licence, thereby minimizing opportunities for identity-related fraud – is pressing and substantial enough to justify limits on Charter rights. This is an assertion that I willingly concede.

Determining Rational Connection

Next, McLachlin C.J.C. and Abella J. similarly accept that the universal photo requirement is rationally connected to the goal of alleviating risks of identity theft. Certainly, a comprehensive facial database would create significant obstacles for a wrongdoer seeking identification in someone else’s name.

Seeking Less Intrusive Means

Where the two justices part company is with regard to the minimal impairment stage of the Oakes test, assessing why less intrusive and equally effective legislative measures than those impugned, if they exist, were not adopted.

The Wilson Colony proposes such a measure – a new exception to the Traffic Safety Act which permits them driver’s licences without photos, stamped with the words, “Not to be used for identification purposes”. The stamp could feasibly prevent a person who assumes physical possession of the special licence from using it as a breeder document.

While acknowledging that the Colony’s proposal would fully comply with s. 2(a) and eliminate some opportunities for identity fraud, McLachlin C.J.C. ultimately rebuffs it as impeding the Province’s plan. “An exemption for an unspecified number of religious objectors,” she writes, “would mean that the one-to-one correspondence between issued licences and photos in the data bank would be lost.” Since only those measures capable of achieving the government objective are evaluated at this stage, McLachlin C.J.C. cursorily dismisses the Colony’s proposal.

At first blush, this assessment seems to overstate the impacts of such a proposal on the integrity of the driver’s licensing system. None of the evidence suggests that exempting a few hundred Hutterites from the otherwise comprehensive photographic database will compromise its utility in any discernible way – “one-to-one correspondence” between hundreds of thousands of unexempted licences and photographs may still proceed. While the universal requirement would fulfil the Province’s objective more perfectly than the Colony’s proposal, the courts need not only consider perfect alternatives, but reasonable ones. In my view, risks of identity theft are still much alleviated by a scheme respecting the sincere beliefs of the Colony.

Assessing Proportionality

The final stage of the Oakes test is the proportionality determination, weighing the salutary and deleterious effects of the impugned legislation in a balance.

For McLachlin C.J.C., a facial comparison system representing all drivers would more effectively combat identity theft than a system excepting religious objectors, “though it is difficult to quantify in exact terms how much risk of fraud would result from permitted exemptions.”

Abella J., by contrast, makes a point of quantifying risks flowing from such exemptions. She reveals that the Province presented no evidence that special licences granted between 1974 and 2003 in any way compromised the integrity of the licensing system. Personally, I cannot imagine the situation would be different if special licences were reissued, especially since approximately 250 Colony members would require them.

Not to be assumptive, but given that these 250 members of the Wilson Colony live “an austere, religiously motivated existence” in which divorce, birth control, smoking, drinking, and firearms are prohibited, voting and public office are abstained from, the old and infirm are cared for, and government assistance is not accepted – all in accordance with a strict code of ethics founded in Christian Scripture – I do not expect that these 250 are very likely to exploit renewed licenses for criminal purposes. Abella J. would seem to agree, as “Hutterites apparently commit no serious crimes.”

Likewise, with such conspicuous religious practices, I do not expect that members of the Wilson Colony would make the easiest or most logical targets of fraud by other wrongdoers. The risks attendant upon creating an exception for Colony members seem negligible.

These risks must also be contextualized with respect to the 700,000+ Albertans who do not hold a driver’s licence, and are thus not profiled by the state’s facial recognition software.  In this light, the salutary benefits of a system requiring photographic licenses from all drivers, as opposed to one exempting a relative few religious objectors, are further diminished.

Tipping the balance scale are the deleterious effects of the impugned measure on the Charter rights of the claimants. In what may be McLachlin C.J.C.’s most distressing finding, she recognizes that the Traffic Safety Act imposes a cost on those choosing not to have their photos taken – not being able to drive on the highway – but that the cost “does not rise to the level of depriving the Hutterian claimants of a meaningful choice as to their religious practice.” After all, McLachlin C.J.C. opines that Wilson Colony members are free to arrange third party transportation to receive social services, as “driving automobiles on highways is not a right, but a privilege.”

I fail to appreciate how hiring third party drivers – the Colony’s only recourse because public transportation does not service its rural locale – is a viable option for a Hutterite community. To depend on outsiders in coordinating medical care, commercial dealings, volunteerism, and other exchanges requiring highway travel would seriously undermine the Colony’s autonomous integrity, while creating an unacceptable financial burden on its members.

Further, and while I appreciate that driving on highways is the “privilege” bestowed upon earning a requisite licence, McLachlin C.J.C. seems not to recognize how in our increasingly globalized society, cities, towns, essential social services, and connective transportation networks are physically situated such that it will be extremely onerous, if not impossible, for the Colony to fulfil its communal responsibilities without using highways.

Its members’ circumstance is also unlike that of the 700,000+ drivers in Alberta lacking licence privileges, as the vast majority of those do not live in hermetic communities populated by fellow objectors, isolated from other licensees and valuing self-sufficiency.

In my view, the universal photo requirement uniquely coerces the Wilson Colony to choose between ceasing driving and compromising their faith. Such an inappropriate choice cannot but weigh heavily in balancing the impugned measure’s salutary and deleterious effects on the proportionality scale. Considering that the social benefits of the requirement are marginal at best, I would have found with Abella J. that the relevant provisions of Traffic Safety Act contravene the Charter.


Upon reviewing Alberta v. Hutterian Brethren, what becomes evident is the Supreme Court’s desire to protect Albertans from the risks associated with identity-related fraud despite the great cost to members of the Wilson Colony of not having their religious and democratic rights respected.  Our court would have done well to find that cost unsupportable.

You may also like...

11 Responses

  1. James Brink says:

    This is indeed a distressing judgment. The Hutterites have long been a part of the Canadian social fabric, and have done us no harm. Driving may be a “privilege” but it is a near-necessity for those in remote locations. If and when Alberta introduces photo health cards, will we also deny the Brethren access to health services, simply because they won’t have their picture taken?

  2. curt says:

    I find it interesting to consider that if in fact there is a heaven, that God would exclude a Hutterite because they had their picture on their driver’s license.

    “I see that you have led a holy and pious life. You are admitted to the holy heavens. Oops, sorry – I see that you have a valid driver’s license. You’re out.”

    God sure is a tough cookie sometimes.

  3. R. says:

    As pointed out by LeBel, the majority `belittled` the Wilson Colony Hutterites dilemma between their beliefs and the integrity of their communities without automobiles.

    The majority’s decision is, in my opinion, worrying to the extent that it appears unconcerned by the adjudicative facts before the Court. I would suggest that the Court wanted to send an unambiguous signal to religious Canadians, perhaps no more so than to religious newcomers to Canada, that reasonable accommodation means the government does not have to accommodate at all so long as their objective mets the thin, self-serving test they propose under s. 1. The law, in this cases, appears to have been bootstrapped by extraneous policy concerns not before the Court. A big blind spot indeed.

  4. William says:

    In the first place, I can’t see why driving is described as a privilege. It is an acquired right, acquired by attaining a certain age and residence and passing certain tests. One retains the right unless disqualified, or unless one fails to pay the required licensing fee.

    Alberta is adding one further requirement for the exercise of that right: adding a photo to the license. The simple question is: Should Hutterites be exempted from it?

    Unlike curt’s suggestion, it does not matter what God thinks, since we don’t know what he thinks about Alberta driver’s licences. It matters what the Wilson colony Hutterites think, and we know that they think that they will be acting contrary to God’s clear commandment should they abide by this regulation. No one doubts their sincerity. Their whole way of life is testimony to their commitment to their faith.
    The Hutterites and the Mennonites and the Doukhobours are nuisances to civil society. They have not and they do not now bend their knee to Caesar. Over the past three hundred years they have suffered terrible persecution as a consequence and they have chosen, as a consequence, to live apart. How intrusive the modern state has become is revealed in this judgement when 250 men and women who want nothing more than to be left alone and practice their faith in the ways of their God and the ancestors are persecuted by bureaucrats and computers.
    Hutterites are not popular in Alberta. They have never been popular anywhere. The Supreme Court has let them down.

  5. William says:

    On further reflection.

    What I dealt with was the text. What was missing was the subtext.

    Hutterites are very unpopular in Alberta because they are very successful. Their communal form of farming has led to increase in their land holdings, which is unpopular with their non-Hutterite neighbours.

    In any normal society, an exemption to the law would be easy. But not in Alberta. That is why is is particularly necessary that the SCC protect the Hutterites against persecution, which it has failed to do.

  6. Russ Brown says:

    For what it’s worth, I disagree with William’s premise that Hutterites are “very unpopular” (or even just unpopular) in Alberta for any reason, let alone “because they are very successful”. (I should perhaps add that I am an Albertan). It is possible, I suppose, that some Hutterite colonies are unpopular with certain of their neighbours, but localized disagreements about where the fenceposts should go hardly seems to explain the Province’s determination to run roughshod over their religious proscriptions.

    Moreover, most of the Albertan commentary I’ve read has been quite critical of the decision (including but not limited to a post by Jennifer Koshan on ABlawg – see Indeed, the Albertan judges who had heard this case were also sympathetic, with the result that the Hutterites were successful in persuading 3 out of 4 Alberta judges who heard their case (including the chambers judge and a majority at the Court of Appeal). Of course, there being no Albertan on the Supreme Court of Canada, one never knows on what side of the divide she or he would have fallen.

  7. Evan VanDyk says:

    No Albertans on the Supreme Court? What about Beverley McLachlin?

  8. Russ Brown says:

    Evan VanDyk says: “No Albertans on the Supreme Court? What about Beverley McLachlin?”

    Right. And Frank Iacobucci was the British Columbian judge.

  9. R. says:

    Beverley McLachlin is from Pincher Creek, ALBERTA.

    No, Russ, Frank Iacobucci was a Federal Court of Appeal justice, from ONTARIO, prior to his appointment to the big court. Also, Former Justice John Major was from Alberta. If you meant that McLachlin sat on the B.C. Courts, then, you are correct. However, she is FROM Alberta.

  10. Russ Brown says:

    Yes, R., I am aware that Beverley McLachlin is from Pincher Creek, AB. (In fact, I have driven many times down the street there that bears her name). So, by the way, is Chief Justice Winkler of Ontario.

    But I think the Iacobucci comparison is apt. He was raised in BC. He was an Ontario appointment. McLachlin CJ was raised in Alberta. She is a BC appointment. She is no more an Albertan judge than Iacobucci was a BC judge or (for that matter) than Winkler CJO is an Albertan judge.

    Are we ad idem?

    Anyhow, my purpose was merely to show that the Albertan judges (sitting on Alberta courts) gave the Hutterites a much more sympathetic treatment than did the SCC (which, I maintain, has no Albertan judges). That doesn’t necessarily make them correct (although in my opinion it does), but it does go to refute William’s imaginative portrait of a province of Hutterite-haters.

  11. Cara says:

    Freedoms in Canada are NOT absolute – there are limitations. Such limitations apply to freedom of expression and freedom of religion. I believe the Supreme Court’s decision to rule in favour of the Alberta government over the issue of photo id was indeed the correct decision as it was in the best interests of ALL citizens; ruling in favour of the Wilson Colony would have set a bad precedent for similar cases in the future. Hutterites are NOT persecuted as suggested in a previous post; they are simply being required to follow the LAWS of the state, which is concerned with security and safety. While individual freedoms must be recognized, they should not interfere with the “order” and “good government” of society – two terms used in our constitution (1867).

Leave a Reply

Your email address will not be published. Required fields are marked *