In this issue:
Driver's license; photograph; Charter of Rights and Freedoms; section 2(a); freedom of religion; section 1; demonstrable justification; pressing and substantial objective; minimal impairment; rational connection; salutary and deleterious effects
NB. This is the Supreme Court of Canada decision resulting from an appeal of Hutterian Brethren of Wilson Colony v. Alberta, 2007 ABCA 160. See LexView 62.0, "Religious Objection to Driver's License Photographs: Accommodation in Alberta", November 9, 2007.
Since 1974, Alberta driver's licenses have carried a photograph of the licensed driver. From then until 2003, there was a permissive exemption for those who objected to having their photographs taken on religious grounds. In 2003, the Alberta government changed the regulations to remove this exemption and universally require a photograph. The photographs were placed in Alberta's facial recognition database.
At the time the photograph exemption was eliminated, there were 453 Albertans holding permanent non-photo licenses (0.02% of the total number of licenses issued), 56% of whom were held by members of the Hutterian Brethren.
The Hutterian Brethren believe in the Ten Commandments and interpret the second commandment (prohibiting the making of idols or "any likeness of what is in heaven above or on the earth beneath or in the water under the earth") to enjoin them from voluntarily allowing their photograph to be taken. They believe that having their photograph taken involuntarily is not a sin, but that cooperating in having a photograph taken to obtain a privilege like a driver's license violates the second commandment.
The Hutterian Brethren also believe in communal living and have an agriculturally based rural life. Without the ability to operate motor vehicles, it would difficult for them to continue their communal lifestyle. They would not be able to sell their agricultural products, purchase raw materials, transport colony members to medical appointments or conduct the colony's financial affairs.
As such, the Hutterian Brethren argued that if they are unable to drive, they would be forced to chose between two of their religious beliefs: adhering to communal living or adhering to the prohibition on having their photograph taken.
Alberta proposed two accommodations that would still require taking photographs, but would not require the photographs to be on licenses or, if so, to have the license sealed. The Hutterian Brethren rejected these because they would still need their photographs taken. Instead, they offered to carry non-photograph licenses marked with a stamp indicating that they could not be used for identification purposes. Alberta rejected this as it would preclude the Hutterian Brethren from being included in the facial recognition software.
The Hutterian Brethren sued and Alberta conceded that the photograph regulation infringed their freedom of religion protected under section 2(a) of the Charter, but argued the infringement was justified under section 1. The Chambers Judge held that the mandatory photograph requirement was an unjustified infringement on the Hutterian Brethren's rights. Alberta unsuccessfully appealed to the Court of Appeal, which upheld the decision of the Chambers Judge. Alberta appealed to the Supreme Court of Canada.
When a government in Canada infringes on freedom of religion under s.2(a) of the Charter, to what standard is the government held in justifying that infringement and thereby overriding religious liberty? To what extent will generally applicable legislation and regulations need to exempt some citizens because of their religious beliefs and practices?
The Supreme Court of Canada allowed the appeal, justifying the breach of religious freedom under s.1 of the Charter. The Court was divided, with three of seven judges dissenting from the views of the majority. Chief Justice McLachlin wrote the decision for the majority.
McLachlin C.J. articulated the test for an infringement of freedom of religion (s.2(a) of the Charter) in a slightly new way, holding that a breach will be found where: (1) the claimant sincerely believes in a belief or practice that has a nexus with religion; and (2) the impugned measure interferes with the claimant's ability to act in accordance with the religious belief or practice in a manner that is more than trivial or insubstantial. Alberta conceded the first portion of the test and with respect to the second portion, the majority relied on their observation that "the courts below seem to have proceeded on the assumption that this requirement was met".
As such, the case was decided on the basis of whether the infringement of s.2(a) could be justified by the Alberta government under s.1 of the Charter. The majority commenced this analysis by observing that freedom of religion "presents a particular challenge" because "much of the regulation of a modern state could be claimed by various individuals to have a more than trivial impact on a sincerely held religious belief" and that "giving effect to each of their religious claims could seriously undermine the universality of many regulatory programs". This approach implies significant deference to governments that breach the Charter right to freedom of religion in the face of complex regulatory regimes.
The Alberta government chose to justify its Charter breach by arguing that the purpose of the photograph regime was to minimize the risk of identity theft, which the majority found was "clearly a goal of pressing and substantial importance, capable of justifying limits on rights". This is interesting as the protection against identity theft is a collateral purpose of a driver's licensing scheme. The primary purpose is the licensing and identity of drivers, as found by the Court of Appeal.
The next stage of the s.1 test is to determine if the regulations are rationally connected to the stated purpose. The Court found that they were and moved on to the minimal impairment component of the test. This is where the majority and the dissenting judges had their strongest disagreement.
McLachlin CJ articulated the minimal impairment aspect of the test as whether "there is an alternative, less drastic means of achieving the objective in a real and substantial manner". That is, available alternative means are not required to compromise the government's objective (in this case protecting against identity theft). The Hutterian Brethren proposed alternatives that would be less drastic, but the majority held that any increase in risk of identity theft associated with the licensing system "does not assist at the stage of minimal impairment". In other words, in determining whether there is minimal impairment, reasonable accommodation of religious belief and practice does not come into play. With this in mind, the majority found the minimal impairment requirement was met.
Justice Abella, writing in dissent, criticized this approach, stating that minimal impairment should focus on whether the right is impaired more than necessary, not whether the government's goal is achieved as efficaciously. Similarly, LeBel and Fish, JJ. proposed a more seamless test that analyzes the proportionality of impacts together with minimal impairment. As with the Court of Appeal, these dissenting judges would have found that Alberta failed to justify the infringement.
The majority then considered overall proportionality: whether the regulatory scheme's harm to religious freedom was proportional to its salutary effects. In doing so, the majority looked beyond the purpose of preventing identity theft, also looking at benefits of roadside identification and harmonizing Alberta's scheme with those in other jurisdictions. They accepted that the benefits were not purely speculative, even though not clearly proven. Against this, the majority held that the perspective of a religious claimant 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 majority distinguished circumstances where the government imposes religious belief or practice or where a regulatory scheme with incidental religious impacts is mandatory. Such schemes would require greater proportionate benefits to justify breaching religious freedom than the "inability to access conditional benefits or privileges", such as a driver's license.
As such, the majority found the breach was justified and the Hutterites could find alternative means of obtaining highway transportation for their people and goods.
At an instinctive level, allowing a few hundred Hutterites to have driver's licenses without photographs creates no great burden on the rest of society. This conclusion seem obvious in light of the fact that they had been able to do so for almost 30 years with little administrative difficulty. To allow this to occur because it would protect their religious practices seems entirely consistent with Canada's proud tradition of accommodating religious belief and practice. For example, in Multani v. Commission Scolaire Marguerite Bourgois (see LexView 57.0), the Supreme Court of Canada held that Sikh students should be able to wear kirpans to school. If kids can be exempt from generally applicable "no weapons" policies in schools, what is the problem with a handful of driver's licenses without pictures?
The Hutterian Brethren decision was made a technical level, in the consideration of how courts will deal with the requirement that governments show they have minimally impaired rights and the assessment of the proportionality of salutary and deleterious effects of government action. These aspects of the test were cast in a way that eases the way for governments to override freedom of religion for communitarian regulatory benefits. Abella J. clearly saw this and rightly sounded a warning bell in her dissenting reasons.
(a) Undermining the Protection of Religion
It was telling that the majority highlighted how complex modern regulations may frequently cause infringements of freedom of religion by placing conditions on public services that interfere with religious beliefs and practices. This observation foreshadowed the majority's ultimate decision as it suggested that it may be very difficult for governments to regulate in a multicultural and multireligious society. A government cannot possibly consider every impact that its thousands of regulations will have on individuals, particularly if they have peculiar beliefs and practices.
The purpose of a bill of rights, such as the Charter, is to protect the individual from unnecessary or aggressive intrusion by the state. Not all intrusion by the state is restricted, just such intrusion as impacts on fundamental personal freedoms such as freedom of expression and freedom of religion. In other words, s.2 of the Charter is designed to protect the minority from the majority in Canadian society.
When the courts focus more on whether a government regulatory scheme is effective, they are favouring the regulations of the majority. It is an odd approach in this context, particularly when considering whether a regulatory scheme "minimally impairs" a right. That is, when the majority of the Court articulated the minimal impairment requirement to ensure that the government's goals were met, it moved the focus away from whether the government was effective in avoiding harm to the fundamental rights of its citizens.
In taking this approach, the Supreme Court of Canada has effectively imposed a greater standard of tolerance and accommodation between citizens than now exists between the government and the governed. Human rights laws require that employers, those offering tenancies and those providing services in the marketplace (and others) must accommodate the requirements of religious minorities to the point of undue hardship. In the case of employment, employers must alter their practices to accommodate the needs of religious employees until it hurts (i.e. until they suffer "undue hardship").
The majority held that the concept of reasonable accommodation of religious practice applicable in the private market is conceptually distinct and therefore inapplicable to the requirement that the government impair a fundamental right minimally. Because laws of general application affect everyone, the majority held that governments cannot be expected to tailor them to "every possible future contingency". This approach effectively excuses governments from having to consider the rights of religious minorities that are incidentally impacted by laws of general application.
In doing so, it imposes a lesser burden on governments under our constitution than private citizens and organizations have under human rights guarantees. The determination of "minimal impairment" is not, as noted by Abella J., about maximizing the attainment of the government's objective. It is about minimizing the impact on religious minorities. A focus on whether the government is meeting its goal is contrary to the real question of whether the complainant's rights have been infringed to the minimal extent.
(b) Defining Public Benefits Too Broadly Harms the Minority
The majority's answer to this problem is to point to the proportionality aspect of the s.1 test. This aspect of the test questions whether there the salutary effects of the legislation or regulatory scheme outweigh the harm caused the religious minority.
However, in conducting this analysis, the majority allowed a greater exposition on the benefits of the regulatory scheme than was used by the government to establish a rational connection and minimal impairment. By doing so, it becomes much easier for the government to explain salutary benefits to the community as a whole in overriding minority and individual religious freedom rights.
The majority carefully explained that there should not be too high a burden on the state in justifying a breach of the Charter when it comes to religious freedom. This is because "the duty of state authorities [is] to legislate for the general good". This approach directly undermines the protection of individuals in the Charter based on communal goals. It allows the majority to undermine the accommodation of minority religious practices because doing so is better for the majority.
There will be times when this should occur, when for example physical harm would result from too strenuously protecting religious freedom. But starting a proportionality assessment from the perspective of the majority and with a bias that perceives peculiar minority or individual religious practices as inconvenient directly undermines the purpose of having freedom of religion as a fundamental freedom in s.2 of the Charter.
The United States has had difficulty in determining the appropriate balance where laws of general application impact on religious minorities. In Employment Division v. Smith, the U.S. Supreme Court went too far, effectively holding that incidental impacts on religious practices would not invalidate a law. This approach excuses governments from meaningful advance thinking about the requirement to accommodate religious minorities. This provoked a heated discussion in the United States, resulting in legislation and additional cases attempting to undermine this troublesome approach.
The majority in Hutterian Brethren attempted to clarify their approach by distinguishing between incidental effects of laws that are mandatory and those that confer an optional benefit, such as a driver's license. This approach creates a hierarchy of regulation and restricts review when benefits are withheld by the state based on inadvertent negative impacts on religious minorities. It communicates an acceptability of second-class treatment by the state when a government benefit is optional. This is contrary to the general approach of preventing adverse effect discrimination.
This approach also ignored the evidence of the direct impacts on the Hutterites, whose entire communal way of life would be compromised. This was cited by Abella J. in dissent as a reason that the majority's analysis was errant. Over 700,000 Albertans were not licensed drivers and were therefore not protected from identity theft by the scheme. Additionally, the ancillary effects of the regulations cited by the majority were minimal, as conceded by Alberta.
In considering this case, some may turn their minds to other exemptions that may be claimed by the members of religious minorities. For example, some Muslims believe a burqa is a religious requirement for women and may also seek an exemption from being photographed. Cases such as Hutterian Brethren must be decided on their facts and the evidence presented. The obligation of the government to justify its infringement of religious freedom can only be considered in light of the evidence before the court and the specific rights claims being made.
In conducting this analysis, the courts have articulated a test that analyzes the specific salutary effects to society and the deleterious impacts on the minority. This assessment is case dependent, as religious beliefs and practices vary greatly. In this case, the fact that Alberta had accommodated the Hutterites without difficulty for many years belies the majority's decision that the benefit of photographs outweighs the religious freedom of a few hundred deeply religious people.
This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar.
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