Hutterian Brethren of Wilson Colony v. Alberta
2007 ABCA 160
Court of Appeal of Alberta
Date of Decision: May 17, 2007
Date of Issue: November 9, 2007
In this issue:
Driver's license; photograph; Charter of Rights and Freedoms; section 2(a); freedom of religion; section 1; sincerity and validity; demonstrable justification; pressing and substantial objective; minimal impairment; rational connection
Since 1974, Alberta driver's licenses (technically called "operator's licenses") have carried a photograph of the licensed driver. From then until 2003, the regulations permitted the issuance of "class G" license, which did not contain a photograph, to persons who objected to having their photographs taken. In 2003, the Alberta government changed the regulations to remove this exemption and universally require a photograph. The revised regulations also allow the registrar to use facial recognition software to verify the identity of all license applicants.
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).
The Hutterian Brethren believe in the Ten Commandments. They 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, if not impossible for them to continue their work and 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 choose between two of their religious beliefs: adhering to communal living or adhering to the prohibition on having their photographs 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 appealed to the Court of Appeal.
How broadly can a government's regulatory objective be drawn to justify infringing a Charter right? To what extent will persons holding religious beliefs contrary to a law of general application be accommodated? Can the difficulty in assessing religious sincerity be used to justify an infringement of section 2(a)?
The Court of Appeal dismissed Alberta's appeal, concluding that Alberta's infringement of the Hutterian Brethren's section 2(a) rights could not be justified in a free and democratic society. Mr. Justice Slatter wrote a dissent.
Alberta argued that the objectives of the licensing regime requiring photographs included increasing security, preventing identity theft and minimizing the risk of terrorism. On this basis, Alberta argued that there was a pressing and substantial objective, sufficient to override a breach of freedom of religion.
The majority of the Court of Appeal disagreed. The Court carefully construed the legislation and noted that there was no reference in to identity theft, fraud or terrorism in scheme. Further, since Alberta had not mandated identity cards for all Albertans, the Court found that it would be an overbroad reading of the regulatory scheme to conclude that it is aimed at the prevention of terrorism or identity theft.
Instead, the majority held that the true goal of the regulation was to ensure that every individual who has applied for a license is represented in Alberta's facial recognition database. This has two purposes: (1) preventing individuals from applying for a license in the name of another; and (2) preventing a single individual from obtaining more than one license. The Court concluded that these limited objectives were sufficiently important objectives to warrant overruling Charter rights.
The majority then considered whether these objectives were rationally connected to the regulatory scheme. They found that there was a rational connection between the photograph requirement and the second purpose (preventing one person from getting more than one license) but was not so connected to the first purpose. This is because there are unlicensed Albertans and photographs therefore did not prevent people from getting a license in the name of another (i.e. a person who did not have driver's license already).
With respect to minimal impairment, the Court held that the protection afforded by the photograph regime provided only slight protection and that Alberta had not proposed any accommodation that actually alleviated the need for breaching the religious freedom of the Hutterian Brethren. The Court rejected Alberta's argument that since a previous Supreme Court of Canada decision made it more difficult to assess the sincerity of religious beliefs, Alberta should be granted more latitude in measures that infringe religious freedom.
Given the severe consequences for the Hutterian community if its members could not drive, the Court concluded that there was no proportionality between the negative impact of the regulation and the marginal benefits that mandatory photographs would have. In doing so, the Court took note of the very few Albertans that had used the photograph exemption (0.02%) before it was revoked.
Mr. Justice Slatter dissented, holding that a free and democratic society can more readily accept a breach of religious freedom where there is a law of general application that allows a person to seek a privilege and the conditions of that privilege will require the person to do something contrary to his or her religious beliefs. This automatically made it easier for Slatter J. to find that the infringement in this case was justifiable. Because the Hutterian Brethren would not yield on the photograph requirement, Slatter J. found there to be minimal impairment because "accommodation [of religious beliefs] is a two way street".
The Hutterian Brethren case shows the extent to which the Courts will permit religious beliefs to carve out an exemption from a regulation of general application which, on its face, is not involved with or targeted at religious belief or practice. Prior decisions of the Supreme Court of Canada made it clear that a failure to accommodate the Hutterian's religious beliefs would be contrary to the guarantee of freedom of conscience and religion in section 2(a) of the Charter. Alberta correctly conceded this point.
What remained was a determination of whether the Alberta photograph regulation would be seen as significantly important and well designed to justify infringing on religious belief.
The State Must have a Legitimate and Important Objective
It is significant that the majority of the Alberta Court of Appeal narrowly construed the purposes of the mandatory photograph regime. Once the breach of freedom of religion was established, Alberta had the obligation to show that its objective was sufficiently important to warrant overriding a constitutional right. Alberta therefore had an incentive to broaden the objectives of the regime so that it appeared crucial to society.
As such, Alberta argued that the regulation went well beyond a system of driver licensing and argued that its purposes also included security concerns, anti-terrorism and the prevention of fraud. Given that the legislation made no reference to these concerns, the Court refused to accept that these were valid objectives of the regulation. The Court refused to accept that the licensing regime was, de facto, a form of identity card scheme.
This was an appropriate approach. As recognized by the majority, this was not a case of a province introducing a mandatory identity card to fight fraud and terrorism. Had that been the case other factors might well have applied. Neither was it one dealing with photograph requirements for passports or other documents specifically designed as a government sanctioned proof of identity for international travel. In such cases, the analysis might well be different and, as such, this case cannot be used to predetermine cases where people may refuse to expose their faces or have their photographs taken for passports or voting requirements for religious reasons.
The Court of Appeal more narrowly construed the legislation. This is appropriate. Freedom of religion is a constitutionally guaranteed right and if a government inadvertently infringes that right, it is required to justify that infringement on the basis of its true objectives. Those objectives must be "pressing and substantial". The state should not be permitted to ascribe to its regulatory intentions the broadest possible effects thereby avoiding the fine-tuning required so that rights are not inappropriately truncated.
The majority found that the narrowly construed purposes of mandatory photographs were still sufficient to proceed with the balancing portion of the section 1 analysis. Reasonable people can certainly disagree as to whether ensuring people only get driver's licenses in their own names is sufficient to justify infringement of a constitutional right. However, the importance of the majority's approach is that they permitted the question of rational connection, minimal impairment of rights and a proportionality of harm and benefits to be considered only on the basis of narrowly confined objectives.
The majority's decision was, therefore, a good example of the courts requiring a strong case of justification before allowing freedom of religion to be breached. This is in contradistinction to the reasoning of Mr. Justice Slatter who dissented by holding, in part, that laws of general application with a "secular" (better put as a "non-religious") purpose that confer a privilege can more easily infringe constitutional rights. In doing so, Slatter J. would follow similar reasoning in the United States, which would more freely permit inadvertent or indirect breaches of constitutional rights by the state.
Allowing that type of reasoning to prevail would make it far too easy for a state to penalize religious groups whether minority or not. There is little logical difference between a regulatory regime that prohibits or penalizes a religious practice or belief (see LexView 57.0 and LexView 47.0) and one that withholds a benefit or privilege because of a citizen's religious belief of practice. Both amount to the imposition of a cost on religious belief by the state.
Mr. Justice Slatter did not use that reasoning to deny the infringement of section 2(a) of the Charter, but rather used it to impoverish the analysis under section 1 in which he found that the government had justified its infringement, in part because the Hutterians did not agree to waive their religious objection to the photograph regime. This approach displays a dismissive attitude towards strange or peculiar religious beliefs that are inconvenient to the government's regulatory plans.
As upheld by the majority of the Court of Appeal, it will remain the government's obligation to justify its infringement of religious belief based on the actual regulations it has promulgated not upon some subsequently argued broad rationale.
The Question of Religious Sincerity
With respect to the question of whether the photograph regime minimally impaired religious freedom rights, Alberta argued that the Supreme Court of Canada's decision in Syndicat Northcrest v. Amselem reduced its ability to verify the credence of religious beliefs. In Amselem, the Supreme Court of Canada confirmed that religious beliefs are personal and not subject to objective evaluation. In other words, the Courts and the state can question the sincerity of religious belief but not its validity. As such, Alberta argued that the registrar of motor vehicles could not verify an anti-photograph religious belief by requiring a letter from a religious leader and, therefore, it had to maintain the absolute photograph requirement.
The majority of the Court of Appeal, rightly in our view, did not accept that argument, but looked, instead, at the few numbers of exemptions requested and granted when that ability existed under the earlier regime. This showed the majority that a sincerity assessment would not often arise. The Court also found that a letter from a religious leader could still be used to establish sincerity if that was a concern.
There was a broader point that could have been made. The Supreme Court of Canada has recognized that freedom of religion is tied to the individual conscience and not to one's association with a larger religious organization. To permit Alberta's argument would have allowed the Supreme Court of Canada's confirmation of the breadth of section 2(a) to be used to override the right itself. The state cannot be permitted to argue that it will have difficulty in assessing the sincerity of a minority religious belief and therefore it has to override it.
While the Court of Appeal did not accept Alberta's argumentation in this regard, it missed an opportunity to confirm Amselem in a way that would have made clear that what Alberta was trying to do, in effect, was use the wide breadth to Section 2 (a) identified by the Supreme Court to be used to override the right.
The issue is not simply one of determining how many people would require exemptions from mandatory photographs. The state has the burden of justifying an infringement of freedom of religion, including establishing a minimal impairment of the right. Minimal impairment requires establishing something akin to accommodation of the belief or practice to the point of undue hardship. This is not a question of numbers or administrative inconvenience but, rather, a government showing that it has taken all reasonable measures to accommodate the rights in question. Since Alberta could not show that it had or would accommodate the religious believers in this case, it justifiably lost the case.
This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), LL.B., of the British Columbia Bar; with further research, writing, and editing from Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar.
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