SUPREME COURT OF CANADA CITATION: Alberta v. Hutterian ...

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[1] The Province of Alberta requires all persons who drive motor vehicles on highways tohold a driver’s licence. Since 1974 each licence has borne a photograph of the licence holder,subject to exemptions for people who objected to having their photos taken on religious grounds.In 2003 the Province made the photo requirement universal in order to reduce the risk of driver’slicences being used for identity theft, a growing problem in Alberta and the country. All licenceholders are now required to have their photos taken for purposes of placement in the Province’sfacial recognition data bank.[2] The Wilson Colony of Hutterian Brethren maintains a rural, communal lifestyle,carrying on a variety of commercial activities. They object on religious grounds to having theirphotographs taken. After the religious exemption to the photo requirement was revoked in 2003,Colony members began these proceedings against the Alberta government, alleging a breach of theirreligious freedom. The Province has offered to lessen the impact of the universal photo requirementby issuing special licences without photos, relieving Colony members of the need to carry theirphotos. However, it insists that their photos be taken for purposes of placement in the central databank. The members of the Wilson Colony have rejected this proposal.[3] The case has proceeded on the basis that the universal photo requirement constitutes alimit on the freedom of religion of Colony members who wish to obtain a driver’s licence and thusinfringes s. 2(a) of the Canadian Charter of Rights and Freedoms. The issue on this appeal iswhether this limit is a reasonable limit demonstrably justified in a free and democratic society unders. 1 of the Charter. If not, the regulation is inconsistent with the Charter and is null and voidpursuant to s. 52 of the Constitution Act, 1982.
[4] I conclude that the evidence led by the Province establishes that the universal photorequirement is justified under s. 1 of the Charter on the test set out in R. v. Oakes, [1986] 1 S.C.R.103. The goal of setting up a system that minimizes the risk of identity theft associated with driver’slicences is a pressing and important public goal. The universal photo requirement is connected tothis goal and does not limit freedom of religion more than required to achieve it. Finally, thenegative impact on the freedom of religion of Colony members who wish to obtain licences doesnot outweigh the benefits associated with the universal photo requirement. Accordingly, I wouldallow the appeal and uphold the regulation as constitutional.II. Facts[5] Alberta began issuing driver’s licences with photos in 1974. Until 2003, however,religious objectors were granted a non-photo licence called a Condition Code G licence, at theRegistrar’s discretion.[6] Driver’s licences in Alberta are governed by the Traffic Safety Act, R.S.A. 2000, c. T-6,and regulations made under it. The power of the Registrar to grant exceptions to the photorequirement which existed previously in s. 14(1)(b) of Alberta’s Operator Licensing and VehicleControl Regulation, Alta. Reg. 320/2002, was eliminated in May 2003 (Operator Licensing andVehicle Control Amendment Regulation, Alta. Reg. 137/2003, s. 3). The new s. 14(1)(b) nowrequires that the Registrar “must require an image of the applicant’s face, for incorporation in thelicence, be taken”. The amendment also added s. 14(3) which provides for use of the photo thus
Page 1 and 2: SUPREME COURT OF CANADACITATION: Al
Page 3 and 4: Present: McLachlin C.J. and Binnie,
Page 5 and 6: Per McLachlin C.J. and Binnie, Desc
Page 7 and 8: self-sufficiency, but there is no e
Page 9 and 10: Under s. 1, courts have only rarely
Page 11 and 12: Quebec (Attorney General), [1989] 1
Page 14 and 15: Taylor, Charles. Philosophical Argu
Page 18 and 19: taken for “facial recognition sof
Page 20 and 21: The second is simply that a digital
Page 22 and 23: the extent that it renders a digita
Page 24 and 25: driver’s licences marked “not t
Page 26 and 27: Second Commandment: “You shall no
Page 28 and 29: [34] The record does not disclose a
Page 30 and 31: [39] Section 1 requires that before
Page 32 and 33: [43] The chambers judge found that
Page 34 and 35: connected to the goal of preserving
Page 36 and 37: ight is reasonably tailored to the
Page 38 and 39: associated with driver’s licences
Page 40 and 41: falls within a range of reasonable
Page 42 and 43: duty to accommodate, which applies
Page 44 and 45: impairing of the right and proporti
Page 46 and 47: need to realize it, the test of pro
Page 48 and 49: licence holders are represented by
Page 50 and 51: their s. 2(a) right. At this point,
Page 52 and 53: formed under compulsion of the Stat
Page 54 and 55: [97] The Hutterian claimants argue
Page 56 and 57: [103] Balancing the salutary and de
Page 58 and 59: each of s. 15(1).VI. Conclusion[109
Page 60 and 61: R. v. Big M Drug Mart Ltd., [1985]
Page 62 and 63: property and live together in relig
Page 64 and 65: eliefs.In short, the Attorney Gener
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(See also Jeremy Webber “The Irre
Page 68 and 69:
[133] Section 1 of the Charter stat
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ationally connected to the legislat
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[148] In RJR-MacDonald, McLachlin J
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measure need to be assessed in ligh
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[159] It is worth noting too that i
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of the Hutterian community:The Hutt
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“privilege”. This approach, wit
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The following are the reasons deliv
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of the case.B. Section 1: The Oakes
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question (the “minimal impairment
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It is at these stages that the mean
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absolute and should not be treated
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[200] As to the outcome of this cas
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General, Toronto.Solicitor for the
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SUPREME COURT OF CANADA CITATION: Alberta v. Hutterian ...

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