One of the biggest challenges facing the Supreme Court of Canada in my view is how to address religious claims. In some ways, the recent Supreme Court of Canada decision in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 illustrates why that is. While the case poses the usual question of what are the limits to the realization of religious beliefs in a pluralist society (rather than the limits to government activity when contrary to the religious beliefs of particular adherents), it is also a good example of how the majority’s and dissenting judges’ characterization of the claim, of the societal interest meant to be advanced by law and implicitly, of the conduct of the claimants affects the result.
There was no dispute that Alberta’s relatively recent (2003) requirement that all persons acquiring driver’s licences have their photograph placed in a facial recognition data bank contravened freedom of religion. I note here that while the province requires photographs on the driver’s licence itself, it previously permitted exceptions for those who objected to having their photos on the licence for religious reasons, and was now prepared to provide an exemption to the photo on the licence, while still requiring the photograph be placed on the data bank. Alternatively, the province proposed that the licence with photo could be carried in an envelope marked as the property of the province. The idea underlying both options was to minimize the Hutterites’ connection with the photo. I note also that the religious objection is that the Wilson Colony Hutterites (among other Hutterites) are prohibited from having their photo willingly taken, the photo being seen as a “graven image”. Thus the objection goes to having the photo taken, rather than where or how it is kept. Faced with the requirement, the only alternatives for the Hutterites was to stop driving and thus impair their way of life.
As accepted by the majority, the purpose of the facial recognition data bank is to target a major source of identity theft, the use of driver’s licences. It allows a comparison of the individual seeking to renew or replace the licence and the person who originally obtained the licence and a comparison of the person seeking this licence with others who hold licences to ensure that the person will not hold more than one licence. Not surprisingly, Alberta maintained that this requirement was also consistent with anticipated practices elsewhere domestically and internationally. In response to this justification, the Hutterites were prepared to accept a limitation on the use of the licence: without the photograph, it would not be used for identification purposes and would be clearly marked accordingly. The assumption is that the licence would therefore not be very useful as a tool of identity theft.
The chambers judge did not accept that the province adequately justified the requirement based on the identity theft justification. The majority of the Court of Appeal, in dismissing the appeal, rested their analysis on whether the requirement was justified by purposes under the Traffic Safety Act (this did not include reducing identity theft or other security interests) and as far as these were concerned, the requirement did not minimally impair the Hutterites’ freedom of religion. (The Supreme Court rejected this narrow interpretation of permissible purposes under the Traffic Safety Act.) The dissent in the Court of Appeal, assessing the broader justification, concluded that the accommodations offered by the province sufficiently met concerns about interfering with religious freedom, including that the right claimed related to having the photo taken willingly: since it was required by law, one could argue the Hutterites would not be having their photos taken willingly.
Speaking for a four person majority of a seven person bench, the Chief Justice concluded that the Hutterites’ proposal did not provide a means of minimal impairment of a right but, rather, compromised the objective of the requirement. Nor should the objective be drawn too broadly: it was not related to abolition of identify theft generally, but to the use of the licences to engage in identity theft. The fact that many more people were outside the system because they did not have driver’s licences is not relevant to whether those who do have licences need to be part of the system.
The Chief Justice also distinguished between a minimal impairment analysis which is relevant to challenges to laws and accommodation which is relevant to practices: “The government is entitled to justify the law, not by showing that it has accommodated the claimant, but by establishing that the measure is rationally connected to a pressing and substantial goal, minimally impairing of the right and proportionate in its effects.” She was satisfied that the actual requirement met the section 1 standard, regardless of any form of accommodation that the province offered.
Perhaps the most important part of the majority analysis, however, is the comparison of the salutary effects of the requirement and the deleterious impact it has on the Hutterites’ freedom of religion. In the majority’s view, to the extent that being able to drive to meet certain needs, the Hutterites could accomplish these goals through other means, such as hiring drivers. While this might impair their self-sufficiency, important to them, it would be minor in light of the ability to meet their regular needs while still adhering to their religious beliefs. This is consistent with the notion that important though religious freedom is, it co-exists with the interests of other members of society and the ability of government to address the needs of all citizens in matters not ostensibly about religion. Obviously, from the majority’s viewpoint, a bit of compromise by the Hutterites should leave everyone happy and perhaps one is meant to conclude that the Hutterites are not being entirely reasonable in not accepting various ways of addressing the matter (other than the one of not using their licences for identification purposes).
The Chief Justice took a somewhat different view in joining the majority in Amselem in which Jewish condo owners wished to erect succahs on their balconies in contravention of a condo bylaw that prohibited putting something on the balcony. In that case, the majority (also including Fish J. who dissented in Wilson Colony) did not expect Amselem and others to accept compromises offered by the condo corporation. (The majority did also attach some conditions to the erection of the succahs).
Dissenting, Justice Abella viewed the possibility that the Hutterites would not be able to drive rather differently from the way McLachlin CJ saw it: it “severely compromises the autonomous character of their religious community”. Set against the fact that there are many Albertans who do not have driver’s licences and thus do not have photos in the facial recognition data bank, this impact on the Hutterites’ way of life, a religious way of life, weighs far more heavily. Her characterization of the reasons the Hutterites drive is rather more compelling than might have seemed from the majority’s description: they drive to “obtain medical services each week for the 48 children and 8 diabetics on the Colony, for community firefighting by volunteer firefighters, and in commercial activity to sustain their community”. McLachlin CJ downplayed the importance of driving by referring to driving “to local centres to do business and obtain the goods and services necessary to the Colony” and obtaining “necessary services, like visits to the doctor”.
Justice Abella states that the requirement fails the minimal impairment test because it “completely extinguishes” the Colony’s religious freedom. At root, it is Abella J.’s characterization of the Hutterite religious colony and beliefs as a complete way of life that the use of third party transportation would significantly impair. Le Bel J., also dissenting, emphasized this latter aspect of Abella J.’s opinion, saying, “Religion is about religious beliefs, but also about religious relationships. The present appeal signals the importance of this aspect. It raises issues about belief, but also about the maintenance of communities of faith. We are discussing the fate not only of a group of farmers, but of a community that shares a common faith and a way of life that is viewed by its members as a way of living that faith and of passing it on to future generations.”
The Hutterite Brethern of Wilson Colony case raises the impact of general secular requirements on a highly coherent religious community. For the majority, a chink in the self-sufficiency of the community poses little threat to the ability of the members of the community to practice their religion (or it constitutes a test of just how coherent and significant their religious views are); for the dissent, this religious community must be seen as holistic with the result that all aspects of life are infused by religious beliefs and practices. For the dissent, the secular society is able to sustain a slight deviation from its general practice far more easily than the religious community can.
Depending on one’s perspective, perhaps Wilson Colony seems a relatively easy case: if one accepts that the faith permeates all aspects of life so that the goal is to live as if there are no boundaries between the religious and the secular, an acceptance that is a form of faith in itself, only the most compelling of reasons will permit an intrusion into obedience to that faith, and this would certainly not be one of them; on the other hand, the rational analysis one usually tries to bring to law may suggest that just a bit of giving on either side might have resolved the matter (or one might have thought that exempting the Hutterites was in the scheme of things a relatively minor concession). Of course, maybe the case is not so easy really, given the 4-3 split.