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

measure need to be assessed in light of the “values underlying the Charter” (para. 125). This wasthe approach, in fact, first enunciated by Dickson C.J. in Oakes:The underlying values and principles of a free and democratic society are the genesisof the rights and freedoms guaranteed by the Charter and the ultimate standard againstwhich a limit on a right or freedom must be shown, despite its effect, to be reasonableand demonstrably justified. [Emphasis added; p. 136.][154] Turning to the salutary effects in this case, in my view, the government has notdischarged its evidentiary burden or demonstrated that the salutary effects in these circumstancesare anything more than a web of speculation (Sujit Choudhry, “So What Is the Real Legacy ofOakes? Two Decades of Proportionality Analysis Under the Canadian Charter’s Section 1” (2006),34 S.C.L.R. (2d) 501, at pp. 503-4).[155] The positive impact of the mandatory photo requirement and the use of facialrecognition technology is that it is a way to help ensure that individuals will not be able to commitidentity theft. But the facial recognition technology is hardly fool-proof. Joseph Mark Pendleton,Director of the Special Investigations Unit of the Alberta Ministry of Government Services,acknowledged in his affidavit on behalf of the Government of Alberta, that “facial recognitionsoftware is not so advanced that it can make a definitive determination of whether two photographsare of the same person”. The software merely narrows down potentially similar faces to amanageable number. A human investigator must still “eyeball” the pictures to determine if they arethe same person.[156] There is, in fact, no evidence from the government to suggest that the Condition Code