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

“privilege”. This approach, with great respect, is troubling. It is both novel and inconsistent withthe principle enunciated in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624,that “once the state does provide a benefit, it is obliged to do so in a non-discriminatory manner”(para. 73).[172] The question, it seems to me, is whether the government has acted constitutionally. Thisshould not depend on whether it does so through a law, a regulation, or a licence. Moreover, I havedifficulty understanding what is meant by a “privilege” in the context of the provision of governmentservices. As long ago as Roncarelli v. Duplessis, [1959] S.C.R. 121, this Court recognized theprofound significance a licence may have on an individual’s life or livelihood and that thegovernment is required to exercise its power in administering the licensing system in a fair andconstitutional manner.[173] The burden under s. 1 is squarely on the government. That is where it should rigorouslyremain throughout the Oakes analysis, without diminution for any reason. The majority’s approach— making the right dependent on a formalistic distinction and characterization of the nature of thelaw — creates, even if inadvertently, a legal hierarchy attracting diminishing levels of scrutiny. Thisnot only imperils and contradicts human rights jurisprudence, it risks presumptively shrinking theplenitude of what is captured by freedom of religion in s. 2(a) of the Charter by tethering its scopeto an artificial stratum of government action. (See McLachlin C.J., “Freedom of Religion and theRule of Law: A Canadian Perspective”, in Douglas Farrow, ed., Recognizing Religion in a SecularSociety: Essays in Pluralism, Religion, and Public Policy (2004), 12.)