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

[174] The harm to the Hutterites’ Charter right is substantial and easily ascertainable, but, aspreviously noted, the benefit of requiring the Hutterites to be photographed for the purposes ofreducing identity theft, is not. Hundreds of thousands of Albertans have no driver’s licence and theirphotographs, therefore, are not available in the facial recognition database, to help minimize identitytheft. It is not clear to me how having approximately 250 additional Hutterites’ photographs in thedatabase will be of any significance in enhancing the government’s objective, compared to theseriousness of the intrusion into the Hutterites’ religious autonomy.[175] What we are left with is the desire to protect Albertans from the risks and costsassociated with identity theft through a mandatory photo requirement, versus the cost to theHutterites, religious and democratic, of not having their constitutional rights respected. Here, theconstitutional right is significantly impaired; the “costs” to the public only slightly so, if at all.[176] Given the disproportion in this case between the harmful effects of the mandatory photorequirement on religious freedom, compared to the minimal salutary effects of requiring photographsfrom the Hutterites, the government has not discharged its burden of demonstrating that theinfringement is justified under s. 1. This makes the mandatory photograph requirement for driver’slicences, in the absence of the availability of an exemption on religious grounds, inconsistent withs. 2(a) of the Charter.[177] I would therefore dismiss the appeal, but would suspend a declaration of invalidity forone year to give Alberta an opportunity to fashion a responsive amendment.