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

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[39] Section 1 requires that before a proportionality analysis is undertaken, the court mustsatisfy itself that the measure is “prescribed by law”. If a limit on a Charter right is not “prescribedby law” it cannot be justified under s. 1. Rather, it is a government act, attracting a remedy unders. 24 of the Charter. Regulations are “measures prescribed by law” under s. 1 of the Charter: seeIrwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 981; R. v. Therens, [1985]1 S.C.R. 613, at p. 645.[40] The majority of the Court of Appeal expressed concern that the challenged measure wasadopted by regulation and therefore without any legislative debate, pursuant to an Act with verydifferent objectives. The respondents take this position much further and advance a generalproposition that Charter-infringing measures may only be adopted by primary legislation. Concernabout overextension of regulatory authority is understandable. Governments should not be free touse a broad delegated authority to transform a limited-purpose licensing scheme into a de factouniversal identification system beyond the reach of legislative oversight. However, that is not whathas happened here. A photo requirement has been an accepted part of the motor vehicle licensingscheme for decades. It is not a stand-alone identification divorced from the public-safety purposeof the authorizing legislation. Moreover, hostility to the regulation-making process is out of stepwith this Court’s jurisprudence and with the realities of the modern regulatory state: see Little SistersBook and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, atpara. 71; D.J. Mullan, Administrative Law – Cases, Text and Materials (5th ed. 2003), at p. 948.Regulations, passed by Order in Council and applied in accordance with the principles ofadministrative law and subject to challenge for constitutionality, are the life blood of theadministrative state and do not imperil the rule of law. Whether the impugned measure was passed
into law by statute or regulation is usually of no consequence for the s. 1 analysis.(b) Is the Purpose for Which the Limit Is Imposed Pressing and Substantial?[41] The chambers judge defined the government’s objective in imposing a universal photorequirement as being “to prevent identity theft or fraud and the various forms of mischief whichidentity theft may facilitate, and ... the harmonization of international and interprovincial standardsfor photo identification” (para. 10). This objective is part of the larger goal of ensuring the integrityof the system for licensing drivers. As Slatter J.A. explained:Driver’s licences are an important part of the overall regulation of traffic safety. Theyhave become a near universal form of identification. The integrity and reliability of thedriver’s licence system benefits all <strong>Alberta</strong>ns who require, on a routine basis, proof oftheir identity. The presence of photographs is an important part of the integrity of thesystem. There unfortunately are significantly large groups of people who seek to exploitthe identities of others for financial or other purposes. The overall cost of the activitiesof this group are very large, and the [Province] (and all <strong>Alberta</strong>ns) have an obligationto do whatever they can to minimize the opportunities for identity theft. Photographson driver’s licences will not eliminate all misuse, and the value of the savings that willresult are hard to measure. They are likely however to be significant. [para. 127][42] Maintaining the integrity of the driver’s licensing system in a way that minimizes therisk of identity theft is clearly a goal of pressing and substantial importance, capable of justifyinglimits on rights. The purpose of a universal photo requirement is to have a complete digital databank of facial photos to prevent wrongdoers from using driver’s licences as breeder documents forpurposes of identity theft. As discussed above (para. 10), the requirement permits the system toensure that each licence in the system is connected to a single individual, and that no individual hasmore than one licence.
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 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 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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