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

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property and live together in religious colonies. The colonies attempt to be self-sufficient, andmembers of the community operate motor vehicles in order to fulfill their responsibilities to thecommunity. Specifically, the Wilson Colony members use motor vehicles to obtain medical serviceseach week for the 48 children and 8 diabetics on the Colony, for community firefighting byvolunteer firefighters, and in commercial activity to sustain their community.[119] In May 2003, Alberta amended the regulations to make a photograph mandatory for alldriver’s licences (Operator Licensing and Vehicle Control Amendment Regulation, Alta. Reg.137/2003). At the time, there were 453 Condition Code G licences in Alberta. Of those, 56 percent,or about 250, were held by Hutterites (2007 ABCA 160, 77 Alta. L.R. (4th) 281 per Conrad J.A.,at para. 5).[120] The purpose of the mandatory photograph was primarily to reduce identity theft.Section 3(b) of the amended regulations allows the Registrar to use facial recognition software toverify the identity of all licence applicants. The photograph that is taken at the time of issuance ofthe licence is incorporated into the province’s database. Facial recognition software compares thisphotograph to all the other photographs in the system, to help ensure that no one has more than onelicence in his or her name.[121] As noted earlier, more than 700,000 Albertans do not have a driver’s licence and aretherefore not in the province’s facial recognition database.[122] The Wilson Colony members objected to being photographed. Alberta then proposed
two alternatives: first, that they have their photograph taken and printed on their licences. Eachlicence would then be placed in a special package which the licensee would never be required toopen, preventing the licensee from ever coming into physical contact with the printed photo. Thephotographs would be stored in digital form in the database. The second proposal was that aphotograph would be taken but not actually printed on their licences. Only the digital images wouldbe stored in the facial recognition database.[123] The Wilson Colony members rejected these alternatives since they both required themto contravene the religious prohibition against having their photograph taken. Their proposal wasthat there be a photoless licence with a stamp indicating that the licence could not be used foridentification purposes.[124] The failure to reach an agreement resulted in a constitutional challenge by the membersof the Wilson Colony to the mandatory photo requirement. They were successful before the AlbertaCourt of Queen’s Bench (2006 ABQB 338, 57 Alta. L.R. (4th) 300) and the Court of Appeal .Analysis[125] Alberta conceded that the photo requirement impairs the Wilson Colony members’freedom of religion. Nor did it dispute that the requirement places a distinctive burden on theColony members, as the chambers judge noted:Nor does the Attorney General dispute that the requirement that people who wish toobtain or renew an operator’s licence is a distinctive burden for those who hold those
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SUPREME COURT OF CANADACITATION: Al
Page 3 and 4:
Present: McLachlin C.J. and Binnie,
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Per McLachlin C.J. and Binnie, Desc
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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 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 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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