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By Meghan Maddigan
FOR THE PAST 29 years in Alberta, Hutterites have been exempt from the
requirement to have their photograph taken in order to obtain a drivers’ license.
On July 24, the Supreme Court of Canada put an end to that.
The Hutterite communities in question object to having their picture taken on
religious grounds.
Specifically, they say that it offends the second commandment: “You shall not make for yourself an idol, or any likeness of what is in heaven
above, or on the earth beneath, or in the water under the earth.” (Exodus 20:4)
Since 1974, a compromise between religion and regulation has permitted the
government of Alberta to issue special drivers’ licenses to those with religious objections.
However, this changed in 2003, when the province made photographs universally
mandatory. Alberta wanted to create a facial recognition database to ensure
that each license in the system is connected to a single individual, and that
no individual has more than one license.
The justification for this requirement is that it will minimize identity theft
in a province where drivers’ licenses are the primary form of identification used.
The Hutterite colonies say they are being asked to choose between their religion
and their ability to drive.
In their rural community, they have to get people to the doctor, keep
appointments and do trade with the local communities around them, they argued
in court.
They won at both trial and on appeal; but their victories ended in July.
The judgment from the Supreme Court of Canada showed a clear division between
the judges; they split 4/3 in their decision.
They all agreed that the regulation plainly represented an infringement on the
Hutterites’ freedom of religion. What was contentious was whether that infringement was “justified.”
Religious groups need to pay attention when any government justifies infringing
on religious freedom. One of the key stages of this analysis asks our court to
assess the proportionality of the infringement – i.e. does the benefit outweigh the cost?
Chief Justice McLachlin said the task at hand was to assess “the seriousness of the limit on religious practice . . . This is not a case . .
. where the incidental and unintended effect of the law is to deprive the
adherent of a meaningful choice as to the religious practice.”
She then goes on to say that the inability to drive on a highway is a cost that “does not rise to the level of depriving the Hutterian claimants of a meaningful
choice as to their religious practice, or adversely impacting on other Charter
values.”
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But here is the problem. Is the ability to drive, especially when one lives in a
rural community, an important aspect of interacting in society?
I suspect many of us feel that it is.
The Chief Justice compared the case to one that looked at the risk a student
wearing a kirpan (a religious ceremonial dagger) posed to the school
population.
In that case, the Supreme Court found that, while the risk did exist, there was
no evidence of any recorded cases of the dagger having been used for violence
in a school setting.
Just because the knife could be used for violence, there was no evidence to
support that this student would – and therefore, this was not a sufficient reason to infringe upon his Charter
right.
Similarly, Justice Abella noted in this case, “There is, in fact, no evidence from the government to suggest that the
[picture-less] licenses in place for 29 years . . . caused any harm at all to
the integrity of the licensing system.”
Like in the kirpan case, just because the license could be used for identify
theft does not mean that it will. Realistically, how many transactions could be completed with a picture-less,
rare form of identification, without at least raising a few eyebrows? The risk
here appears very low.
For our highest court to say the inability to drive represents a minimal
impairment is controversial at best.
The Hutterite community certainly feels so, and has since indicated that they
may move from the province of Alberta.
Now the question is, if the top court in Canada cannot find room to accommodate
their religious beliefs, where will they go?
Meghan Maddigan is a lawyer practicing with Kuhn & Company, in Abbotsford.
September 2009
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