SCC to Address Accommodation of Religious Freedom Once Again

In the Supreme Court of Canada’s (“SCC”) fall lineup of hearings, we have in the lead-off position on October 6, 2008, the case of Her Majesty the Queen in Right of the Province of Alberta v Hutterian Brethren of Wilson Colony, et al. In this case, the SCC will determine whether the Alberta government’s decision to remove an exception to the requirement of a photograph on drivers’ licenses constitutes a justifiable infringement of the applicants’ right to religious freedom and equality.

For a review of the facts, please see Matthew Shogilev’s summary as reported when leave to appeal was granted.

Briefly, the Alberta Court of Appeal (2007 ABCA 160) summarizes its conclusion at para 3 of its decision:

The chambers judge did not err in concluding that the regulatory amendment, which created a mandatory photo requirement for drivers’ licences, constitutes an unjustified infringement of the respondents’ Charter rights. Even if rationally connected to a valid objective, the regulation removing the Registrar’s discretion to grant non-photo licences does not minimally impair the rights of the respondents. Rather, the rights are totally infringed while the risk of harm is minimal. As a result, I find that the Charter infringements caused by the regulation cannot be justified. The appeal is dismissed.

The last time the SCC visited the scope of accommodation for religious freedoms was in Multani v Commission scolaire Marguerite Bourgeoys, [2006] 1 SCR 256 [Multani]. There, a unanimous court came to the conclusion that the total ban on carrying a kirpan (a religious symbol similar to a dagger) in a public school was not justified. The majority reasoned that this was so because the total ban was not minimally impairing in achieving the objective of maintaining safety.

Looking forward, it will be interesting to see if the SCC modifies Multani to be less accommodating of applicants, as it has been noted that the Multani decision was not particularly well-received in the general public. In Religion in the Supreme Court: Some Lessons from Multani, (2006) 21 Nat’l J. Const. L. 291 at 308-309, Mahmud Jamal notes several sources of criticisms. In addition to an editorial written at the Globe and Mail and other criticisms by parents and teacher, he additionally observes:

…immediately following the ruling the Globe and Mail‘s Web site established a comment section allowing readers to register their views. In less than 24 hours 384 Canadians did so and they were overwhelmingly critical of the Supreme Court’s decision. Even people who claimed that they were not hate-mongers or supported diversity said that the Court had gone too far. There were some supportive comments, to be sure, but they were distinctly in the minority. [Globe and Mail‘s comment page on the decision, March 2, 2006. This page is no longer on-line but a PDF of the comment page is on file with the author.]

While such observation is by no means scientific, it nevertheless serves as an indication of public displeasure of the decision. Though the eventual outcome of this case may not be impacted by the public sentiment remnant from the Multani case, it is still possible that the judges may have the criticism in the back of their minds.

Thus, it remains to be seen what the SCC will do.

Will they retreat from their position in Multani and water down the protection offered by the Charter? Or, will they maintain their position, and as Mahmud Jamal puts it, “take a leadership role in protecting minority rights, even in cases that may be wildly unpopular in the domain of public opinion?”