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.

Conclusion

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.