Archive | March, 2012

Uncle Alberta WANTS YOUR Picture

1 Mar

In a highly unusual decision the Supreme Court of Canada has narrowly decided against religious freedom. This court decision may well have marked the high water point of what had been a very sound approach, up to now, toward religious freedom by the Court since the Charter of Rights came into effect in 1982. In this case it ruled in favour of the government against a religious minority when a very simple alternative could have accommodated this group’s religious beliefs. That alternative is discussed below.


It involved a Hutterite colony in Alberta. The Hutterites, if they want to drive from now on, must have a photograph taken for their drivers’ license even though for over 29 years they were given an exemption. They believe that the requirement to have a picture taken would be breaking the Second of the Ten Commandments – “Thou shalt not make unto thee any graven image….”


We have come a long ways from those promising words of Chief Justice Brian Dickson, who said in the first religious freedom case under the Charter (R. v. Big M Drug Mart),


The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination. But the concept means more than that.


What may appear good and true to a majoritarian religious group, or to the state acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of “the tyranny of the majority”.


Such was the promise. For the Hutterian Brethren of Wilson Colony, in Alberta they know what the tyranny of the majority is all about. As they walk to the grocery story – or ride a horse watching the majority drive by and perhaps mock them like they have done other religious minorities using such means of transportation. The Province argued, and the Supreme Court agreed, that to permit the Hutterites an exemption to the photograph requirement would jeopardize the “integrity” of the licensing system as it tries to prevent identity theft.


To put Alberta’s argument into perspective a couple of important facts must be noted. First, for over 29 years the Province had permitted the Hutterites an exemption. Not one piece of evidence was presented to the court which showed any loss of integrity for that policy during that time.


Second, over 700,000 people in the province do not hold a drivers’ license. If a photograph is so important to preventing identity theft then it surely follows that every citizen must be photographed and given an identity card so that their identity is not stolen!


It is interesting to note that the Chief Justice had, some years ago, given a speech in Montreal about the conflict between law and religion. It was the court’s role she maintained to find the balance between the “normative commitments” of law and religion. Law and religion are two competing absolute claims upon individual citizens.1 “There is no part of modern life,” she quoted Yale Professor Kahn, “to which law does not extend.” “Kahn is describing the way in which, from the subjective viewpoint of the individual, the rule of law exerts an authoritative claim upon all aspects of selfhood and experience in a liberal democratic society.”


Likewise, “There are no limits to the claims made by religion upon the self. Religious authority, grounded as it is in basic assumptions about the nature of the cosmos, impinges upon all aspects of the adherent’s world.”


It is up to the courts, the Chief Justice maintains to “oversee those points in public life where there is a clash between religious conscience and society’s values as manifested in the rule of law.” In providing a space for religious expression, she maintains, it must not compromise “core areas of our civil commitments.”2


In forcing the Hutterites to get a photograph taken, the Chief Justice said that Alberta does not have to accommodate their beliefs. All the province had to do was establish “that the measure is rationally connected to a pressing and substantial goal, minimally impairing of the right and proportionate in its effects.” Of course she went on to show that Alberta did just that.


In reviewing the benefits of a universal photograph requirement the Chief Justice noted that not all of the proposed benefits could be substantiated but “If legislation designed to further the public good were required to await proof positive that the benefits would in fact be realized, few laws would be passed and the public interest would suffer.” Such an admission by the court clearly challenges its conclusion that indeed the benefits of the legislation outweighed deleterious effects on the Hutterite colony.


The Chief Justice noted that,


In judging the seriousness of the limit in a particular case, the perspective of the religious or conscientious claimant is important. However, this perspective must be considered in the context of a multicultural, multireligious society where the duty of state authorities to legislate for the general good inevitably produces conflicts with individual beliefs. The bare assertion by a claimant that a particular limit curtails his or her religious practice does not, without more, establish the seriousness of the limit for purposes of the proportionality analysis. Indeed to end the inquiry with such an assertion would cast an impossibly high burden of justification on the state. We must go further and evaluate the degree to which the limit actually impacts on the adherent.


Later she said,


The Charter guarantees freedom of religion, but does not indemnify practitioners against all costs incident to the practice of religion. Many religious practices entail costs which society reasonably expect the adherents to bear. The inability to access conditional benefits or privileges conferred by law may be among such costs. A limit on the right that exacts a cost but nevertheless leaves the adherent with a meaningful choice about the religious practice at issue will be less serious than a limit that effectively deprives the adherent of such choice.


She concludes by saying that the impact on their religious freedom will require them no longer to drive but they “will be obliged to make alternative arrangements for highway transport.” While such cost is not trivial she admits, it does not “seriously affecting the claimants’ right to pursue their religion. They do not negate the choice that lies at the heart of freedom of religion.”


Justice Abella in dissent notes,


The harm to the constitutional rights of the Hutterites, in the absence of an exemption,

is dramatic. Their inability to drive affects them not only individually, but also severely

compromises the autonomous character of their religious community.


There can be no denying that religious practice, especially outside of the majoritarian religions, may be costly. It is the price of “doing religion” as it were. But in a case such as this one it is problematic when a government could have easily have accommodated this 250 group of people by simply noting on their drivers’ license that the document could not be used for identification purposes – along with the other 700,000 Albertans who do not have a license.


It would seem to me that a drivers’ license should not be used as our internal defacto passport for movement within Canada. It should be what it was originally designed for – to show one’s authorization to drive a vehicle. If security is what we want – making sure government can track each person’s movement then issue a card to every citizen – driver or no driver. Oh yeah one problem – they will want a picture for that card too – where will the Hutterites go then?


The reality is since the advent of pictures for drivers’ licenses – over 29 years ago – this small religious minority drove the streets of Alberta without a problem – and now the majority says – it will lose the integrity of the entire licensing system? Just does not seem possible.



July 24, 2009


Trent Hills, Ontario


1 The Right Honourable Beverley McLachlin, PC, “Freedom of Religion and the Rule of Law: A Canadian Perspective,” in Douglas Farrow, ed., Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy, (Montreal & Kingston: McGill-Queen’s University Press, 2004), 12.

2 McLachlin, p. 22.