Hutterites lose Old World-New World court clash over photos
By Sue Bailey
The Canadian Press
July 24, 2009
OTTAWA A badly split top-court judgment denying Hutterites an exemption from mandatory driver's licence photos is a setback for religious rights, critics say.
And one of the most surprisingly forceful voices against the decision Friday came from the fractured court itself: dissenting Justice Rosalie Abella.
The Supreme Court of Canada ruled 4-3 to uphold provincial rules requiring a digital photo for all new licences.
Headshots have been entered in an Alberta database since 2003 to help the government track existing drivers and prevent fraud.
“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,” Chief Justice Beverley McLachlin wrote for the majority.
“The universal photo requirement is connected to this goal and does not limit freedom (of) religion more than required to achieve it.”
The Hutterite Brethren is a Christian sect that believes being photographed breaks the second of the Ten Commandments forbidding idolatry.
They had been allowed to carry special permits since 1974 when the government introduced licences with photos.
Alberta offered a compromise in 2003 allowing permits without photos, but said a picture must still be taken for the database.
The Hutterites refused.
Those who won't comply with the rules can always hire drivers, McLachlin said of the farming Wilson Colony near Lethbridge that argued its way of life is threatened. The chief justice jettisoned that assertion.
“Many businesses and individuals rely on hired persons and commercial transport for their needs, either because they cannot or choose not to drive.”
She was joined in the majority by Justices Ian Binnie, Marie Deschamps and Marshall Rothstein.
Friday's divided ruling is the latest twist in the legal debate over reasonable accommodation of religious beliefs and customs.
By 2003, Alberta had approved 453 special licences without photos – 56 per cent of them held by Hutterites.
Lawyers for the colony said the province presented no evidence to show any related security risk.
Federal lawyers warned that allowing a continuing exemption for Hutterites could increase the risk of forgery for a document used not just for driving but for identity purposes. They also raised the prospect of a flood of requests for religious-based exemptions.
Justice Abella attacked Alberta's case in a passionately argued dissent, the principles of which Justices Louis LeBel and Morris Fish supported.
In her view, the security benefit of mandatory photos is slight compared with the impact on the Hutterites.
She noted about 700,000 Albertans who don't have driver's licences aren't in the security database either.
“There is no evidence that in the context of several hundred thousand unphotographed Albertans, the photos of approximately 250 Hutterites will have any discernable impact on the province's ability to reduce identity theft,” Abella wrote.
“The mandatory photo requirement is a form of indirect coercion that places 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, a community that has historically preserved its religious autonomy through its communal independence.”
Abella went further, saying the majority's approach in this case let the Alberta government off the hook without adequately proving religious rights were justifiably infringed.
The result “imperils and contradicts human rights jurisprudence,” she said.
McLachlin countered, “with respect,” that Abella wrongly overstates the purpose of the photo requirement.
“It is not the broad goal of eliminating all identity theft, but the more modest goal of maintaining the integrity” of the driver's licensing system, she wrote.
Any infringement on religious freedom is therefore necessary and justifiable, she concludes.
The legal set-to is rare for a court that has enjoyed a comparatively high degree of consensus under McLachlin's watch.
Friday's judgment overturns Hutterite victories before both the Alberta Court of Queen's Bench, which struck down the photo rules as unconstitutional, and a majority of the Alberta Court of Appeal, which agreed.
Nathalie Des Rosiers, lawyer for the Canadian Civil Liberties Association, called the judgment “a setback for religious beliefs in Canada.”
“Essentially, the majority opinion gives a lot of deference to the government in designing administrative systems – and that's worrisome. Traditionally when freedoms were at stake, we were asking big questions of government.
“I would say that it gives the government more deference to take a hard line against minorities than it did before.”
Reasonable accommodation of religious beliefs has been a public policy flashpoint in recent years.
The Harper government recently dropped plans to pursue legislation that would force all voters – including Muslim women – to bare their faces when voting. The bill faced too much hostility from the majority opposition in Parliament, said a spokesman for the prime minister.
Public safety and religious freedom also hung in the balance in 2006 when the Supreme Court unanimously struck down a Quebec school board's ban on ceremonial daggers or kirpans worn by orthodox Sikh students.
In that case, the court sided with the right of students to carry daggers of limited size if safely sheathed under clothing.
The Hutterites fled Russia for the Canadian Prairies in the early 20th century to escape state oppression. Lawyer Greg Senda, representing the Wilson Colony, says members are meeting with elders next week to discuss what to do next.
They believe having their photo taken would violate the biblical commandment: “You shall not make for yourself a carved image – any likeness of anything that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.”