Supreme Court Splits on Freedom of Religion and Driving Licence Photos

This morning the court released Alberta v. Wilson Colony of Hutterian Brethren, a decision that turns on whether Alberta’s driving licence requirements, which mandate photographs of licensed drivers to address identity theft breach the Hutterians’ Charter rights of Freedom of Religion.

The court split with Chief Justice McLachlin writing the majority judgment for herself and Justices Binnie, Deschamps and Rothstein. Strong dissent from Justice Abella, with Justices LeBel and Fish agreeing. The Court reversed the Alberta Court of Appeal and the Queen’s Bench, which had both struck down the Regulation in question.

“The goal of setting up a system that minimizes the risk of identity theft associated with drivers’ licences is a pressing and important public goal,” the majority said. The regulation is justified under s. 1 of the Charter. The Regulations are measures “prescribed by law” under s. 1, and the objective of the impugned regulation of maintaining the integrity of the driver’s licensing system in a way that minimizes the risk of identity theft is clearly a goal of pressing and substantial importance, capable of justifying limits on rights. The universal photo requirement permits the system to ensure that each licence in the system is connected to a single individual, and that no individual has more than one licence. The Province was entitled to pass regulations dealing not only with the primary matter of highway safety, but also with collateral problems associated with the licensing system.

Justice Abella felt that the interests of the Hutterites trumped the province’s policy concerns and that the community’s religious beliefs made the very taking of a photograph a form of indirect coercion. They had argued that being photographed violates the second of the Ten Commandments forbidding idolatry. The province’s requirement placed the Wilson Colony members in the untenable position of having to choose between compliance with their religious beliefs or giving up the self‑sufficiency of their community,which has historically preserved its religious autonomy through its communal independence.

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