The Debate over Freedom of Religion in Alberta v. Hutterian Brethren of Wilson Colony
The Supreme Court of Canada (“SCC”) recently granted leave to appeal in Alberta v Hutterian Brethren of Wilson Colony, 2007 ABCA 160 [Wilson Colony], an Alberta Court of Appeal decision that will allow the court to address a politically charged issue without attracting too much attention.
In 1974, the province of Alberta implemented mandatory photo-identification for drivers licenses. However, the province exempted anyone who objected to this requirement on religious grounds. This remained the case until 2003, when the enactment of s. 3 of the Operator Licensing and Vehicle Control Amendment Regulation, Alta. Reg.137/2003, required all drivers’ licenses to contain an photo identification. The religious objection exemption was eliminated. Members of the Hutterian Brehthren of Wilson Colony applied for declaratory relief, invoking both s. 2(a) (freedom of religion) and 15(1) (equality) of the Canadian Charter of Rights and Freedoms.
The Government Alberta conceded the fact that Hutterites have a sincere religious opposition to being photographed, and furthermore that the mandatory photo requirement represented a considerable imposition on their religious freedom. In an effort to appease the Hutterite community without compromising its own interests, Alberta proposed two possible alternative schemes for the Hutterite community. Under the first of these, drivers licenses, (with photo identification) would be be placed in a sealed package, to be opened only as required by peace officers. In the alternative, the government proposed that photos would be taken but not printed. Instead, they would be stored on the government’s facial recognition database. The Hutterite community rejected both proposals, lodging the objection that neither scheme omitted them from being photographed. With this in mind, they counter-proposed that they be permitted to carry a non-photographic license bearing a special stamp that stated that the document was not to be used for identification purposes. The government rejected this proposal on the grounds that it would not allow them to include the Hutterite community or any other group who had a legitimate religious objection to being photographed in the facial recognition database. The net effect of this, in Alberta’s view, would be to jeopardize the objectives of mandatory photo licensing, namely safeguarding the licensing system from identity fraud. The matter thus proceeded to trial.
The principal issue at trial was not whether a s. 2(a) Charter violation could be made out, but rather whether such an infringement could be saved under s. 1 of the Charter. Lo Vecchio J. of the Alberta Queens Bench found that the objectives of the government’s facial recognition were sufficiently pressing and substantial to warrant a 2(a) infringement, and were furthermore rationally connected to these objectives. However, he found that s. 3 of Atla. Reg. 137/2003 failed at the minimal impairment stage of the proportionality test set out in R. v. Oakes. That is, Lo Vecchio J.’s held that it was possible for the government to accommodate religious beliefs without abandoning the objectives of its mandatory photo licensing program. As such, Lo Vecchio J. held that s. 3 of the Regulation to be of no force or effect.
Not surprisingly, the government Alberta appealed. Writing for a majority, Conrad J.A. dismissed the province’s appeal, agreeing with Lo Vecchio J. that the regulation removing the exemption from photo identification on religious grounds failed to minimally impair the rights of the respondents. Additionally, Conrad J.A. also questioned whether the impugned law was rationally connected to its objectives. Drawing on R v Edwards Books and Art Ltd.,  2 SCR 713, she observed that “the mandatory photo requirement does not seem to be well-tailored to address the problem of seeking licenses in the name of another, and the rational connection to this objective is therefore questionable.”
Like Lo Vecchio J., however, Conrad J.A.’s most important argument was on the issue of whether or not the law in question minimally impaired the religious freedoms of the Hutterite respondents. Conrad J.A. made quick work of the province’s argument to the effect that allowing the Hutterite community to be exempt from mandatory photo identification would (a) make it easier for them to commit fraud, and (b) open the floodgates to falsified religious claims made by individuals wishing to exploit the system. Conrad J.A. cited a lack of evidence on the first claim, and rejected the second by pointing to the fact that although the Hutterite community has been exempted from mandatory photo identification for more than 30 years, only 453 licensed Albertans have been exempted from the mandatory photo identification requirement. Conrad J.A. also found, with respect to the third prong of the proportionality test that “the effects of the law on the respondents are overwhelming and significant, and stand in stark contrast with the minute risks associated with allowing some exceptions to the mandatory photo requirement.”
Slatter J.A., writing in dissent, altogether denied the existence of a s. 2(a) violation. In his view, the fact that the Hutterite community was concerned about the effect that their photographs might have on others who view them was determinative. Bearing this in mind, Slatter J.A. posited that “while the respondents are entitled to assert their own religious rights, they have no standing to advance the religious well being of third parties, particularly where the third parties may not share their beliefs.”
On the minimal impairment issue, Slatter J.A., drawing on Multani v Commission scolaire Marguerite-Bourgeoys,  1 SCR 256, explained that the Charter requires that the state accommodate religion only “to the point of undue hardship.” A prudent s. 1 analysis of a 2(a) right, he continued, “involve[s] a fair balancing of the interests of the appellant and the respondents.” With this in mind, Slatter J.A. found that “to require the appellant to accommodate any further would require it to significantly compromise a central feature of the security of the licensing system, and would amount to undue hardship.”
Finally, Slatter J.A. took issue with Conrad J.A.’s finding that the deleterious effects of mandatory photo identification outweighed the salutary effects. Whereas Conrad J.A. focused on the lack of salutary effects associated with having photographic records of a small class of the population who objected on religious grounds to having their picture taken, Slatter J.A. placed an emphasis on the absence of significant deleterious effects associated with the act of momentarily posing for a photograph.
This past Thursday, the SCC granted leave to appeal in Wilson Colony. The court is thus poised to weigh in on a contentious issue with implications that extend far beyond Alberta’s Hutterite community.
The Case Behind the Case
The use of a 2(a) freedom of religion argument by the Hutterian Brethen of Wilson Colony bears a striking resemblance to the more politically charged debate over the extent to which freedom of religion can be justifiably infringed upon in the electoral process. As reported by CBC, Stephen Harper has expressed his profound disagreement with a recent Elections Canada decision to accommodate Muslim voters who do not wish to lift their niqabs or burkas to be identified while voting.
In Harper’s view, the decision is not only disagreeable, but is altogether inconsistent with the recently amended Canada Elections Act. It seems reasonable to infer that a SCC ruling condemning mandatory photo identification as unconstitutional would arguably represent a similar condemnation of any law forcing Muslim women to remove their veil in order to vote, contrary to their religious beliefs. Whether or not it intended to do so, the SCC has found a politically savvy way to answer a controversial question without venturing too far into the political limelight.