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

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taken for “facial recognition software for the purpose of the identification of, or the verification ofthe identity of, a person who has applied for an operator’s licence”.[7] Members of the Wilson Colony, like many other Hutterites, believe that the SecondCommandment prohibits them from having their photograph willingly taken. This belief is sincerelyheld.[8] Although the Colony attempts to be self-sufficient, some members need driver’slicences so that they can travel outside the Colony to do business and attend to the needs ofmembers. Under the 2003 regulation, members currently holding Condition Code G licences arerequired to have their photograph taken upon renewal of their licences, resulting in a violation oftheir religious beliefs. The Colony claimants led evidence asserting that if members could not obtaindriver’s licences, the viability of their communal lifestyle would be threatened. Mr. Samuel Wurz,the Colony’s Secretary-Treasurer, deposed that each Colony member has a specific set ofresponsibilities assigned to him or her, some of which require the member to drive. If a Colonymember cannot carry out these responsibilities, it “causes our religious commune to functionimproperly, thereby eroding the fabric of our social, cultural and religious way of life”. In his view,the Province is effectively “attempting to force the Hutterian Brethren to make a choice between twoof our religious beliefs”, a choice they feel they should not have to make.[9] The Province, for its part, led evidence that the adoption of the universal photorequirement in 2003 was connected to a new system aimed at minimizing identity theft associatedwith driver’s licences. The evidence showed that identity theft is a serious and growing problem
in Alberta and elsewhere, and that drivers’ licences, the most commonly used and accepted form ofidentification, could be and were being used for identity theft. The new facial recognition data bankwas aimed at reducing the risk of this type of fraud.[10] Under the new system a digital photograph of every licensed driver is placed in a facialrecognition data bank. This data bank is connected to facial recognition software which analysesthe digital photographs of people who apply for licences. The software performs two kinds ofcomparison: one-to-one and one-to-many. The one-to-one comparison allows the government to besure that the person trying to renew or replace a licence is the same person represented by theexisting photo in the data bank. The one-to-many comparison allows it to be satisfied that a personapplying for a new licence does not already hold another licence in another person’s name.[11] A comprehensive photo requirement, whereby all valid licences are associated with aphoto in the data bank, is essential to ensuring the efficacy of these mechanisms. To the extent thatlicences exist without holder photos in the central photo bank, others can appropriate the identityof the licence holder without detection by the facial recognition software. The Province also ledevidence that this system was adopted with a view to harmonization with international andinterprovincial standards for photo identification.[12] The Province has proposed measures to accommodate the Hutterian claimants’ objectionto the universal driver’s licence photo requirement. The first is that the licence display a photo, butthat the licence be carried in a sealed envelope or folder marked with the indication that it is theproperty of the Province, and that a digital photo be placed in the Province’s facial recognition bank.
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 16 and 17: [1] The Province of Alberta require
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
Page 66 and 67: (See also Jeremy Webber “The Irre
Page 68 and 69:
[133] Section 1 of the Charter stat
Page 70 and 71:
ationally connected to the legislat
Page 72 and 73:
[148] In RJR-MacDonald, McLachlin J
Page 74 and 75:
measure need to be assessed in ligh
Page 76 and 77:
[159] It is worth noting too that i
Page 78 and 79:
of the Hutterian community:The Hutt
Page 80 and 81:
“privilege”. This approach, wit
Page 82 and 83:
The following are the reasons deliv
Page 84 and 85:
of the case.B. Section 1: The Oakes
Page 86 and 87:
question (the “minimal impairment
Page 88 and 89:
It is at these stages that the mean
Page 90 and 91:
absolute and should not be treated
Page 92 and 93:
[200] As to the outcome of this cas
Page 94:
General, Toronto.Solicitor for the
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