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Alberta v. Hutterian Brethren of Wilson Colony - SCC Cases (Lexum)

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Supreme Court Judgments

Alberta v. Hutterian Brethren of Wilson Colony

Collection: Supreme Court Judgments

Date: 2009-07-24

Neutral citation: 2009 SCC 37

Report: [2009] 2 SCR 567

Case number: 32186

Judges: McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Rothstein, Marshall

On appeal from: Alberta

Subjects: Constitutional law

Notes: SCC Case Information: 32186

 

SUPREME COURT OF CANADA CITATION: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567

DATE: 20090724 DOCKET: 32186

BETWEEN:

Her Majesty the Queen in Right of the Province of Alberta Appellant

and

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Alberta v. Hutterian Brethren of Wilson Colony - SCC Cases (Lexum)

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Hutterian Brethren of Wilson Colony and Hutterian Brethren Church of Wilson

Respondents ‑ and ‑

Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia,

Canadian Civil Liberties Association, Ontario Human Rights Commission, Evangelical Fellowship of Canada and Christian Legal Fellowship

Interveners CORAM: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ. REASONS FOR JUDGMENT: (paras. 1 to 109) DISSENTING REASONS: (paras. 110 to 177) DISSENTING REASONS: (paras. 178 to 202) DISSENTING REASONS: (para. 203)

McLachlin C.J. (Binnie, Deschamps and Rothstein JJ. concurring) Abella J. LeBel J. Fish J.

______________________________

Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567

Her Majesty The Queen in Right of the Province of

Alberta Appellant

v.

Hutterian Brethren of Wilson Colony and Hutterian Brethren Church of

Wilson Respondents

and

Attorney General of Canada,

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Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Canadian Civil Liberties Association, Ontario Human Rights Commission, Evangelical Fellowship of Canada and Christian Legal

Fellowship Interveners

Indexed as: Alberta v. Hutterian Brethren of Wilson Colony

Neutral citation: 2009 SCC 37.

File No.: 32186.

2008: October 7; 2009: July 24

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and

Rothstein JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Constitutional law — Charter of Rights  — Freedom of religion —

New regulation requiring photo for all Alberta driver’s licences — Members of

Hutterian Brethren sincerely believing that Second Commandment prohibits them

from having their photograph willingly taken — Whether regulation infringed

freedom of religion — If so, whether infringement justified — Canadian Charter of

Rights and Freedoms, ss. 1  , 2  (a) — Operator Licensing and Vehicle Control

Regulation, Alta. Reg. 320/2002, s. 14(1)(b) (am. Alta. Reg. 137/2003, s. 3).

Constitutional law — Charter of Rights  — Right to equality —

Discrimination based on religion — New regulation requiring photo for all Alberta

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driver’s licences — Members of Hutterian Brethren sincerely believing that Second

Commandment prohibits them from having their photograph willingly taken —

Whether regulation infringed right to equality — Canadian Charter of Rights and

Freedoms, s. 15  — Operator Licensing and Vehicle Control Regulation, Alta.

Reg. 320/2002, s. 14(1)(b) (am. Alta. Reg. 137/2003, s. 3).

Alberta requires all persons who drive motor vehicles on highways to

hold a driver’s licence. Since 1974, each licence has borne a photograph of the

licence holder, subject to exemptions for people who objected to having their

photographs taken on religious grounds. Religious objectors were granted a

non‑photo licence called a Condition Code G licence, at the Registrar’s discretion.

In 2003, the Province adopted a new regulation and made the photo requirement

universal. The photograph taken at the time of issuance of the licence is placed in

the Province’s facial recognition data bank. There were about 450 Condition Code

G licences in Alberta, 56 percent of which were held by members of Hutterian

Brethren colonies. The Wilson Colony of Hutterian Brethren maintains a rural,

communal lifestyle, carrying on a variety of commercial activities. They sincerely

believe that the Second Commandment prohibits them from having their photograph

willingly taken and objected to having their photographs taken on religious grounds.

The Province proposed two measures to lessen the impact of the universal photo

requirement but, since these measures still required that a photograph be taken for

placement in the Province’s facial recognition data bank, they were rejected by the

members of the Wilson Colony. They proposed instead that no photograph be taken

and that non‑photo driver’s licences be issued to them marked “Not to be used for

identification purposes”. Unable to reach an agreement with the Province, the

members of the Wilson Colony challenged the constitutionality of the regulation

alleging an unjustifiable breach of their religious freedom. The case proceeded on

the basis that the universal photo requirement infringes s. 2 (a) of the Canadian

Charter of Rights and Freedoms  . The claimants led evidence asserting that if

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members could not obtain driver’s licences, the viability of their communal lifestyle

would be threatened. The Province, for its part, led evidence that the adoption of the

universal photo requirement was connected to a new system aimed at minimizing

identity theft associated with driver’s licences and that the new facial recognition

data bank was aimed at reducing the risk of this type of fraud. Both the chambers

judge and the majority of the Court of Appeal held that the infringement of freedom

of religion was not justified under s. 1  of the Charter  .

Held (LeBel, Fish and Abella JJ. dissenting): The appeal should be

allowed.

Per McLachlin C.J. and Binnie, Deschamps and Rothstein JJ.: The

regulation is justified under s. 1  of the Charter  . 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. [39] [42] [45]

The regulation satisfies the proportionality test. First, the universal

photo requirement is rationally connected to the objective. The Province’s evidence

demonstrates that the existence of an exemption from the photo requirement would

materially increase the vulnerability of the licensing system and the risk of

identity‑related fraud. Second, the universal photo requirement for all licensed

drivers minimally impairs the s. 2  (a) right. The impugned measure is reasonably

tailored to address the problem of identity theft associated with driver’s licences.

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The evidence discloses no alternative measures which would substantially satisfy the

government’s objective while allowing the claimants to avoid being photographed.

The alternative proposed by the claimants would significantly compromise the

government’s objective and is therefore not appropriate for consideration at the

minimal impairment stage. Without the licence‑holder’s photograph in the data

bank, the risk that the identity of the holder can be stolen and used for fraudulent

purposes is significantly increased. Although there are over 700,000 Albertans who

do not hold driver’s licences and whose pictures do not appear in the data bank, the

objective of the driver’s licence photo requirement is not to eliminate all identity

theft in the province, but rather to maintain the integrity of the driver’s licensing

system so as to minimize identity theft associated with that system. Within that

system, any exemptions, including those for religious reasons, pose real risk to the

integrity of the licensing system. Lastly, where the validity of a law of general

application is at stake, the doctrine of reasonable accommodation is not an

appropriate substitute for a proper s. 1  Oakes analysis. 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. [50] [52]

[59‑60] [62‑63] [71]

Third, the negative impact on the freedom of religion of Colony

members who wish to obtain licences does not outweigh the benefits associated with

the universal photo requirement. The most important of these benefits is the

enhancement of the security or integrity of the driver’s licensing scheme. It is clear

that a photo exemption would have a tangible impact on the integrity of the licensing

system because it would undermine the one‑to‑one and one‑to‑many photo

comparisons used to verify identity. The universal photo requirement will also assist

in roadside safety and identification and, eventually, harmonize Alberta’s licensing

scheme with those in other jurisdictions. With respect to the deleterious effects, the

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seriousness of a particular limit must be judged on a case‑by‑case basis. While the

impugned regulation imposes a cost on those who choose not to have their

photographs taken — the cost of not being able to drive on the highway — that cost

does not rise to the level of depriving the claimants of a meaningful choice as to

their religious practice, or adversely impacting on other Charter  values. To find

alternative transport would impose an additional economic cost on the Colony, and

would go against their traditional self‑sufficiency, but there is no evidence that this

would be prohibitive. It is impossible to conclude that Colony members have been

deprived of a meaningful choice to follow or not to follow the edicts of their

religion. When the deleterious effects are balanced against the salutary effects of the

impugned regulation, the impact of the limit on religious practice associated with the

universal photo requirement is proportionate. [4] [79‑80] [82] [91] [96‑98] [100]

[103]

The impugned regulation does not infringe s. 15  of the Charter  .

Assuming it could be shown that the regulation creates a distinction on the

enumerated ground of religion, it arises not from any demeaning stereotype but from

a neutral and rationally defensible policy choice. There is therefore no

discrimination within the meaning of s. 15  . [108]

Per Abella J. (dissenting): The government of Alberta did not discharge

its burden of demonstrating that the infringement of the Hutterites’ freedom of

religion is justified under s. 1  of the Charter  . [176]

The purpose of the mandatory photo requirement and the use of facial

recognition technology is to help prevent identity theft. An exemption to the photo

requirement for the Hutterites was in place for 29 years without evidence that the

integrity of the licensing system was harmed in any way. In addition, more than

700,000 Albertans have no driver’s licence and are therefore not in the facial

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recognition database. The benefit to that system therefore, of adding the

photographs of around 250 Hutterites who may wish to drive, is only marginally

useful to the prevention of identity theft. While the salutary effects of the mandatory

photo requirement are therefore slight and largely hypothetical, the mandatory photo

requirement seriously harms the religious rights of the Hutterites and threatens their

autonomous ability to maintain their communal way of life. The impugned

regulation and the alternatives presented by the government involve the taking of a

photograph. This is the very act that offends the religious beliefs of the Wilson

Colony members. This makes the mandatory photo requirement 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. [148] [155-156] [158]

[162-164] [170] [174]

The harm to the constitutional rights of the Hutterites, in the absence of

an exemption, is dramatic. On the other hand, the benefits to the province of

requiring the Hutterites to be photographed are, at best, marginal. This means that

the serious harm caused by the infringing measure weighs far more heavily on the

s. 1  scales than the benefits the province gains from its imposition on the

Hutterites. The province has therefore not discharged its onus of justifying the

imposition of a mandatory photo requirement on the members of the Wilson

Colony. [114‑116]

Per LeBel J. (dissenting): Abella J.’s comments on the nature of the

guarantee of freedom of religion under s. 2 (a) of the Charter  and her opinion

that the impugned regulation, which limits freedom of religion, has not been

properly justified under s. 1  of the Charter  are both agreed with. The

regulatory measures in issue have an impact not only on the Hutterites’ belief

system, but also on the life of the community. The majority’s reasons understate the

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nature and importance of this aspect of the guarantee of freedom of religion. [178]

[182]

Under s. 1, courts have only rarely questioned the purpose of a law or

regulation or found that it does not meet the rational connection requirement of the

proportionality analysis, but this does not mean that courts will never or should

never intervene at these earlier stages. It is generally at the minimal impairment and

the balancing of effects stages that the means are questioned and their relationship to

the law’s purpose is challenged and reviewed. It is also where the purpose itself

must be reassessed with regard to the means chosen by Parliament or the legislature.

The proportionality analysis thus depends on a close connection between the final

two stages of the Oakes test. The court’s goal is essentially the same at both stages:

to strike a proper balance between state action on the one hand, and the preservation

of Charter  rights and the protection of rights or interests that may not be

guaranteed by the Constitution but that may nevertheless be of high social value or

importance on the other. The proportionality analysis reflects the need to leave

some flexibility to government in respect of the choice of means. But the review of

those means must also leave the courts with a degree of flexibility in the assessment

of the range of alternatives that could realize the goal, and also in determining how

far the goal ought to be attained in order to achieve the proper balance between the

objective of the state and the rights at stake. The stated objective is not an absolute

and should not be treated as a given and alternative solutions should not be evaluated

on a standard of maximal consistency with the stated objective. An alternative

measure might be legitimate even if the objective could no longer be obtained in its

complete integrity. A court must assess the objectives, the impugned means and the

alternative means together, as necessary components of a seamless proportionality

analysis. [188] [190‑191] [195‑196] [199]

In this case, the Government of Alberta has failed to demonstrate that the

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regulation is a proportionate response to the identified societal problem of identity

theft. The driver’s licence that it denies is not a privilege as it is not granted at the

discretion of governments. Such a licence is often of critical importance in daily life

and is certainly so in rural Alberta. Other approaches to identity fraud might be

devised that would fall within a reasonable range of options and that could establish

a proper balance between the social and constitutional interests at stake. This

balance cannot be obtained by belittling the impact of the measures on the beliefs

and religious practices of the Hutterites and by asking them to rely on transportation

services to operate their farms and to preserve their way of life. Absolute safety is

probably impossible in a democratic society. A limited restriction on the Province’s

objective of minimizing identity theft would not unduly compromise this aspect of

the security of Alberta residents and might lie within the range of reasonable and

constitutional alternatives. [200‑201]

Per Fish J. (dissenting): For the reasons given by LeBel J., the

disposition of the appeal as suggested by Abella J. and LeBel J. is agreed with.

[203]

Cases Cited

By McLachlin C.J.

Applied: R. v. Oakes, [1986] 1 S.C.R. 103; referred to: Multani v.

Commission scolaire Marguerite‑Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256;

Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551; R. v. Edwards

Books and Art Ltd., [1986] 2 S.C.R. 713; Canada (Attorney General) v.

JTI‑Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610; Irwin Toy Ltd. v. Quebec

(Attorney General), [1989] 1 S.C.R. 927; R. v. Therens, [1985] 1 S.C.R. 613; Little

Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69,

Alberta v. Hutterian Brethren of Wilson Colony - SCC Cases (Lexum)

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[2000] 2 S.C.R. 1120; RJR‑MacDonald Inc. v. Canada (Attorney General), [1995] 3

S.C.R. 199; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9,

[2007] 1 S.C.R. 350; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Thomson

Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Trinity

Western University v. British Columbia College of Teachers, 2001 SCC 31, [2001] 1

S.C.R. 772; Health Services and Support — Facilities Subsector Bargaining Assn. v.

British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Eur. Court H. R., Kokkinakis

v. Greece, judgment of 25 May 1993, Series A No. 260‑A; R. v. Big M Drug Mart

Ltd., [1985] 1 S.C.R. 295; Planned Parenthood of Southeastern Pennsylvania v.

Casey, 505 U.S. 833 (1992); Zylberberg v. Sudbury Board of Education (Director)

(1988), 65 O.R. (2d) 641; Canadian Civil Liberties Assn. v. Ontario (Minister of

Education) (1990), 71 O.R. (2d) 341; R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R.

483; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.

By Abella J. (dissenting)

R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Big M Drug Mart Ltd., [1985] 1

S.C.R. 295; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Eur. Court H.

R., Kokkinakis v. Greece, judgment of 25 May 1993, Series A No. 260‑A; Ôahin v.

Turkey [GC], No. 44774/98, ECHR 2005‑XI; Metropolitan Church of Bessarabia

and Others v. Moldova, No. 45701/99, ECHR 2001‑XII; RJR‑MacDonald Inc. v.

Canada (Attorney General), [1995] 3 S.C.R. 199; Thomson Newspapers Co. v.

Canada (Attorney General), [1998] 1 S.C.R. 877; Dagenais v. Canadian

Broadcasting Corp., [1994] 3 S.C.R. 835; Bothwell v. Ontario (Minister of

Transportation) (2005), 24 Admin. L.R. (4th) 288; Hofer v. Hofer, [1970] S.C.R.

958; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624;

Roncarelli v. Duplessis, [1959] S.C.R. 121.

By LeBel J. (dissenting)

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R. v. Oakes, [1986] 1 S.C.R. 103; Re B.C. Motor Vehicle Act, [1985] 2

S.C.R. 486; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1

S.C.R. 877; R.W.D.S.U., Local 558 v. Pepsi‑Cola Canada Beverages (West) Ltd.,

2002 SCC 8, [2002] 1 S.C.R. 156; R. v. Edwards Books and Art Ltd., [1986] 2

S.C.R. 713; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9,

[2007] 1 S.C.R. 350.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1  , 2 (a), 15  , 24(1)  , 33  . Criminal Code, R.S.C. 1985, c. C‑46, s. 34  . Constitution Act, 1982, s. 52  . Operator Licensing and Vehicle Control Amendment Regulation, Alta. Reg.

137/2003, s. 3. Operator Licensing and Vehicle Control Regulation, Alta. Reg. 320/2002,

ss. 14(1)(b) [am. Alta. Reg. 137/2003, s. 3(a)], (3) [ad. idem, s. 3(b)]. Traffic Safety Act, R.S.A. 2000, c. T‑6.

Authors Cited

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Barak, Aharon. “Proportional Effect: The Israeli Experience” (2007), 57 U.T.L.J. 369.

Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel, 5e éd.

Cowansville, Qué.: Yvon Blais, 2008. Cameron, Jamie. “The Past, Present, and Future of Expressive Freedom Under the

Charter ” (1997), 35 Osgoode Hall L.J. 1. Choudhry, Sujit. “So What Is the Real Legacy of Oakes? Two Decades of

Proportionality Analysis under the Canadian Charter  ’s Section 1 ” (2006), 34 S.C.L.R. (2d) 501.

Davis, Morris, and Joseph F. Krauter. The Other Canadians: Profiles of Six

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Minorities. Toronto: Methuen, 1971. Eissen, Marc‑André. “The Principle of Proportionality in the Case‑Law of the

European Court of Human Rights”, in R. St. J. Macdonald, F. Matscher and H. Petzold, eds., The European System for the Protection of Human Rights. Dordrecht, The Netherlands: Martinus Nijhoff, 1993, 125.

Emiliou, Nicholas. The Principle of Proportionality in European Law: A

Comparative Study. London: Kluwer Law International, 1996. Grimm, Dieter. “Proportionality in Canadian and German Constitutional

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Ont.: Thomson/Carswell, 2007 (updated 2008, release 1). Hurka, Thomas. “Proportionality in the Morality of War” (2005), 33 Phil. & Pub.

Aff. 34. McLachlin, The Right Honourable Beverley M. “Freedom of Religion and the Rule

of Law: A Canadian Perspective”, in Douglas Farrow, ed., Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy. Montreal and Kingston: McGill‑Queen’s University Press, 2004, 12.

Mullan, David J. Administrative Law: Cases, Text, and Materials, 5th ed. Toronto:

Emond Montgomery, 2003. Nussbaum, Martha C. Liberty of Conscience: In Defense of America’s Tradition of

Religious Equality. New York: Basic Books, 2008. Taylor, Charles. Philosophical Arguments. Cambridge, Mass.: Harvard University

Press, 1995. Van der Schyff, Gerhard. Limitation of Rights: A Study of the European

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Webber, Jeremy. “The Irreducibly Religious Content of Freedom of Religion”, in Avigail Eisenberg, ed., Diversity and Equality: The Changing Framework of Freedom in Canada. Vancouver: UBC Press, 2006, 178.

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APPEAL from a judgment of the Alberta Court of Appeal (Conrad,

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O’Brien and Slatter JJ.A.), 2007 ABCA 160, 417 A.R. 68, 410 W.A.C. 68, 283

D.L.R. (4th) 136, [2007] 9 W.W.R. 459, 156 C.R.R. (2d) 234, 77 Alta. L.R. (4th)

281, 49 M.V.R. (5th) 45, [2007] A.J. No. 518 (QL), 2007 CarswellAlta 622,

affirming a decision of LoVecchio J., 2006 ABQB 338, 398 A.R. 5, 269 D.L.R.

(4th) 757, [2006] 8 W.W.R. 190, 141 C.R.R. (2d) 227, 57 Alta. L.R. (4th) 300, 33

M.V.R. (5th) 16, [2006] A.J. No. 523 (QL), 2006 CarswellAlta 576. Appeal

allowed, LeBel, Fish and Abella JJ. dissenting.

Roderick S. Wiltshire and Randy Steele, for the appellant.

K. Gregory Senda, for the respondents.

Donald J. Rennie and Sharlene Telles‑Langdon, for the intervener the

Attorney General of Canada.

Robert E. Charney and Michael T. Doi, for the intervener the Attorney

General of Ontario.

Isabelle Harnois, for the intervener the Attorney General of Quebec.

Leah Greathead and Tyna Mason, for the intervener the Attorney

General of British Columbia.

Mahmud Jamal, Colin Feasby and David Grossman, for the intervener

the Canadian Civil Liberties Association.

Kikee Malik and Brian Smith, for the intervener the Ontario Human

Rights Commission.

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Charles M. Gibson, Albertos Polizogopoulos, Don Hutchinson and Faye

Sonier, for the interveners the Evangelical Fellowship of Canada and the Christian

Legal Fellowship.

The judgment of McLachlin C.J. and Binnie, Deschamps and

Rothstein JJ. was delivered by

THE CHIEF JUSTICE —

I. Introduction

[1] The Province of Alberta requires all persons who drive motor

vehicles on highways to hold a driver’s licence. Since 1974 each licence has

borne a photograph of the licence holder, subject to exemptions for people

who objected to having their photos taken on religious grounds. In 2003 the

Province made the photo requirement universal in order to reduce the risk

of driver’s licences being used for identity theft, a growing problem in

Alberta and the country. All licence holders are now required to have their

photos taken for purposes of placement in the Province’s facial recognition

data bank.

[2] The Wilson Colony of Hutterian Brethren maintains a rural,

communal lifestyle, carrying on a variety of commercial activities. They

object on religious grounds to having their photographs taken. After the

religious exemption to the photo requirement was revoked in 2003, Colony

members began these proceedings against the Alberta government, alleging

a breach of their religious freedom. The Province has offered to lessen the

impact of the universal photo requirement by issuing special licences without

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photos, relieving Colony members of the need to carry their photos.

However, it insists that their photos be taken for purposes of placement in

the central data bank. The members of the Wilson Colony have rejected

this proposal.

[3] The case has proceeded on the basis that the universal photo

requirement constitutes a limit on the freedom of religion of Colony

members who wish to obtain a driver’s licence and thus infringes s. 2 (a) of

the Canadian Charter of Rights and Freedoms  . The issue on this appeal is

whether this limit is a reasonable limit demonstrably justified in a free and

democratic society under s. 1  of the Charter  . If not, the regulation is

inconsistent with the Charter  and is null and void pursuant to s. 52  of the

Constitution Act, 1982  .

[4] I conclude that the evidence led by the Province establishes

that the universal photo requirement is justified under s. 1  of the Charter 

on the test set out in R. v. Oakes, [1986] 1 S.C.R. 103. The goal of setting

up a system that minimizes the risk of identity theft associated with driver’s

licences is a pressing and important public goal. The universal photo

requirement is connected to this goal and does not limit freedom of religion

more than required to achieve it. Finally, the negative impact on the

freedom of religion of Colony members who wish to obtain licences does not

outweigh the benefits associated with the universal photo requirement.

Accordingly, I would allow the appeal and uphold the regulation as

constitutional.

II. Facts

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[5] Alberta began issuing driver’s licences with photos in 1974.

Until 2003, however, religious objectors were granted a non-photo licence

called a Condition Code G licence, at the Registrar’s discretion.

[6] Driver’s licences in Alberta are governed by the Traffic Safety

Act, R.S.A. 2000, c. T‑6, and regulations made under it. The power of the

Registrar to grant exceptions to the photo requirement which existed

previously in s. 14(1)(b) of Alberta’s Operator Licensing and Vehicle Control

Regulation, Alta. Reg. 320/2002, was eliminated in May 2003 (Operator

Licensing and Vehicle Control Amendment Regulation, Alta. Reg. 137/2003,

s. 3). The new s. 14(1)(b) now requires that the Registrar “must require an

image of the applicant’s face, for incorporation in the licence, be taken”. The

amendment also added s. 14(3) which provides for use of the photo thus

taken for “facial recognition software for the purpose of the identification of,

or the verification of the identity of, a person who has applied for an

operator’s licence”.

[7] Members of the Wilson Colony, like many other Hutterites,

believe that the Second Commandment prohibits them from having their

photograph willingly taken. This belief is sincerely held.

[8] Although the Colony attempts to be self-sufficient, some

members need driver’s licences so that they can travel outside the Colony

to do business and attend to the needs of members. Under the 2003

regulation, members currently holding Condition Code G licences are

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required to have their photograph taken upon renewal of their licences,

resulting in a violation of their religious beliefs. The Colony claimants led

evidence asserting that if members could not obtain driver’s licences, the

viability of their communal lifestyle would be threatened. Mr. Samuel Wurz,

the Colony’s Secretary-Treasurer, deposed that each Colony member has a

specific set of responsibilities assigned to him or her, some of which require

the member to drive. If a Colony member cannot carry out these

responsibilities, it “causes our religious commune to function improperly,

thereby eroding the fabric of our social, cultural and religious way of life”.

In his view, the Province is effectively “attempting to force the Hutterian

Brethren to make a choice between two of our religious beliefs”, a choice

they feel they should not have to make.

[9] The Province, for its part, led evidence that the adoption of

the universal photo requirement in 2003 was connected to a new system

aimed at minimizing identity theft associated with driver’s licences. The

evidence showed that identity theft is a serious and growing problem in

Alberta and elsewhere, and that drivers’ licences, the most commonly used

and accepted form of identification, could be and were being used for

identity theft. The new facial recognition data bank was aimed at reducing

the risk of this type of fraud.

[10] Under the new system a digital photograph of every licensed

driver is placed in a facial recognition data bank. This data bank is

connected to facial recognition software which analyses the digital

photographs of people who apply for licences. The software performs two

kinds of comparison: one-to-one and one-to-many. The one-to-one

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comparison allows the government to be sure that the person trying to

renew or replace a licence is the same person represented by the existing

photo in the data bank. The one-to-many comparison allows it to be

satisfied that a person applying for a new licence does not already hold

another licence in another person’s name.

[11] A comprehensive photo requirement, whereby all valid

licences are associated with a photo in the data bank, is essential to

ensuring the efficacy of these mechanisms. To the extent that licences exist

without holder photos in the central photo bank, others can appropriate the

identity of the licence holder without detection by the facial recognition

software. The Province also led evidence that this system was adopted with

a view to harmonization with international and interprovincial standards for

photo identification.

[12] The Province has proposed measures to accommodate the

Hutterian claimants’ objection to the universal driver’s licence photo

requirement. The first is that the licence display a photo, but that the

licence be carried in a sealed envelope or folder marked with the indication

that it is the property of the Province, and that a digital photo be placed in

the Province’s facial recognition bank. The second is simply that a digital

photo be placed in the bank, with no photo accompanying the driver’s

licence. The aim of these proposals is to minimize the impact of the

universal photo requirement on religious beliefs by removing the need for

Colony members to have any direct contact with the photos.

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[13] The Colony claimants reject both alternatives on the ground

that they require a member to have a photo taken. It proposes that no

photo be taken, and that non-photo driver’s licences be issued to them,

marked “Not to be used for identification purposes”.

III. History of Proceedings

A. Alberta Court of Queen’s Bench (LoVecchio J.), 2006 ABQB 338, 57 Alta.

L.R. (4th) 300

[14] The chambers judge proceeded on the basis that the

universal photo requirement limited Colony members’ right to freedom of

religion under s. 2 (a) of the Charter  . He went on to find that this limit

was not shown to be justified under s. 1  of the Charter  .

[15] The chambers judge defined the government’s objective as

being “to prevent identity theft or fraud and the various forms of mischief

which identity theft may facilitate, and . . . the harmonization of

international and interprovincial standards for photo identification” (para.

10), associated with the issuance of motor vehicle driver’s licences. He

concluded that the objective of preventing identity theft associated with

driver’s licences, while limited, was “pressing and substantial” (para. 14).

[16] The chambers judge found that “the implementation of

mandatory photographic licences, together with facial recognition software,

is rationally connected to the objective of safeguarding the system of issuing

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operator’s licences from fraud and for that mat[t]er the larger objective of

limiting identity theft” (para. 16). He went on to find, however, that the

requirement of minimal impairment was not met, in that the government

had not accommodated the “distinctive character of the burdened group . .

. to the point of undue hardship” (para. 18), citing Multani v. Commission

scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256. The

accommodations offered by the Province would still require members to

have their photos taken and offend the right. On the other hand, the Colony

claimants’ proposal that the driver’s licence be marked “Not to be used for

identification purposes” would satisfy the Colony members’ concerns and

also meet the government’s objectives, since an individual seeking to

impersonate the holder would be “significantly limited in the extent to which

he or she could use the licence” (para. 28).

[17] Although it was unnecessary, in view of his finding on

minimal impairment, the chambers judge went on to consider

proportionality of effects. He observed that while the requirement of photos

combined with facial recognition software “may safeguard the system of

issuing licences against fraud, and thereby constitute a useful tool against

identity theft in general”, this did not “safeguard the identity of the

thousands of other individuals to whom operators’ licences are never issued

because they do not qualify to drive” (para. 31). He concluded: “In this

regard, the effects of the measure appear somewhat limited when weighed

against the acknowledged incursion upon the religious beliefs of the

members of the applicant Colony” (para. 32).

[18] The chambers judge concluded that the regulation is

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inconsistent with the Charter  “to the extent that it renders a digital

photograph mandatory for individuals who claim a valid religious objection”

(para. 39). Accordingly, he held that the amendment removing the

regulation’s discretionary religions exemption was of no force and effect.

B. Alberta Court of Appeal, 2007 ABCA 160, 77 Alta. L.R. (4th) 281

[19] The majority, per Conrad J.A. (O’Brien J.A. concurring),

dismissed the appeal.

[20] Conrad J.A. characterized the purpose of the photo

requirement narrowly as preventing licence duplication in order to permit the

ready identification of licensed drivers at the roadside and minimize the

number of disqualified people operating motor vehicles. Reasoning that the

regulation, enacted under the Traffic Safety Act, was confined to enhancing

traffic safety, she held that the goals of preventing identity theft, fraud and

threats to public safety, could not be considered under s. 1  . If the

Province wished to assert these goals, in her view it should have enacted a

law going specifically to these risks. She also noted the absence of legislative

debate on the issue, suggesting that this rendered the regulation suspect.

[21] Conrad J.A. expressed doubt about whether the photo

requirement was rationally connected to the objective of identification

associated with traffic safety. Since over 700,000 unlicensed Albertans are

not in the facial recognition data bank, granting a few hundred Hutterites an

exemption from the photo requirement would not have a significant impact

on the number of identities available for unlawful appropriation.

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[22] However, Conrad J.A. went on to dispose of the case on the

ground that the universal photo requirement did not minimally impair the

right, because it did not reasonably accommodate Colony members’ s. 2  (a)

religious freedom. She noted that the claimants had enjoyed an exemption

from the requirement for close to 30 years, with no evidence of resultant

harm. The result, according to Conrad J.A., was that “the impugned

regulation offers only a very slight protection against the risk that a licence

will be issued to an individual in a name other than his or her own, while

completely infringing the respondents’ rights” (para. 46). Conrad J.A. added

that the effects of the regulation were disproportionate, in that “the

mandatory photo requirement forces the Hutterian Brethren to either breach

a sincerely held religious belief against being photographed or to cease

driving”, which would also have severe practical consequences for

individuals in the community (para. 54).

[23] Slatter J.A., dissenting, defined one of the goals of the

universal photo requirement as maximizing the reliability and integrity of

driver’s licences as a widely used and respected method of personal

identification. He found that the limit on freedom of religion imposed by the

photo requirement, while it might not eliminate all identity theft, was

rationally connected to the objective of “[m]aking forgery or unauthorized

driving more difficult” (para. 99).

[24] On minimal impairment, Slatter J.A. proceeded on the basis

that the government must show that it has accommodated the right to the

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point of undue hardship. The accommodations offered by the Province, while

they would still limit the Colony members’ religion freedom, would go some

way to fulfilling the requirements of the Second Commandment, since

members would not have to look at their photos. He held that the

accommodation proposed by the Colony claimants — driver’s licences

marked “Not to be used for identification purposes” — was no

accommodation at all, but simply “an assertion that nothing which infringes

the second commandment can ever be justified” (para. 121). In addition, it

would prevent police officers from using non-photo licences for the basic

function of driver identification. Slatter J.A. found that the Colony claimants’

proposal would reduce the efficacy of the system with respect to identity

theft. After alluding to harmonization with other systems, Slatter J.A.

concluded that “[t]o require the [Province] to accommodate any further

would require it to significantly compromise a central feature of the security

of the licencing system, and would amount to undue hardship” (para. 124).

[25] Slatter J.A. concluded that the salutary effects of having the

photos of all licence holders in the data bank — regulating traffic safety and

ensuring the integrity and reliability of the driver’s licence system to the

benefit of Albertans — outweighed the deleterious effects on Colony

members’ freedom of religion. He observed that the Colony members object

only to having their photos taken voluntarily, and suggested that the

element of state compulsion implied by the photo requirement would

“considerably diminish any disobedience to their religious tenets” (para.

126). For those reasons, he took the view that “[i]n a free and democratic

society minor infringements of this kind on religious doctrine can be

tolerated” (para. 126).

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[26] Slatter J.A. accordingly concluded that the appeal should be

allowed.

IV. Issues

[27] A. Freedom of religion

1. The nature of the limit on the s. 2  (a) right;

2. Is the limit on the s. 2  (a) right justified under s. 1  of the

Charter ?

(a) Is the limit prescribed by law?

(b) Is the purpose for which the limit is imposed pressing and

substantial?

(c) Is the means by which the goal is furthered proportionate?

(i) Is the limit rationally connected to the purpose?

(ii) Does the limit minimally impair the right?

(iii) Is the law proportionate in its effect?

(d) Conclusion on justification

B. The claim under s. 15 

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V. Analysis

A. Freedom of Religion

(1) The Nature of the Limit on the Section 2  (a) Right

[28] Section 2  (a) of the Charter  states that “[e]veryone has . .

. freedom of conscience and religion”.

[29] The members of the Colony believe that permitting their

photo to be taken violates the Second Commandment: “You shall not make

for yourself an idol, or any likeness of what is in heaven above or on the

earth beneath or in the water under the earth” (Exodus 20:4). They believe

that photographs are “likenesses” within the meaning of the Second

Commandment, and want nothing to do with their creation or use. The

impact of having a photo taken might involve censure, such as being

required to stand during religious services.

[30] Given these beliefs, the effect of the universal photo

requirement is to place Colony members who wish to obtain driver’s licences

either in the position of violating their religious commitments, or of foregoing

driver’s licences. Without the ability of some members of the Colony to

obtain driver’s licences, Colony members argue that they will not be able to

drive to local centres to do business and obtain the goods and services

necessary to the Colony. The regulation, they argue, forces members to

choose between obeying the Second Commandment and adhering to their

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rural communal lifestyle, thereby limiting their religious freedom and

violating s. 2  (a) of the Charter  .

[31] My colleague Abella J. notes at para. 130 that “freedom of

religion has ‘both individual and collective aspects’”. She asserts that “[b]oth

. . . are engaged in this case.” While I agree that religious freedom has both

individual and collective aspects, I think it is important to be clear about the

relevance of those aspects at different stages of the analysis in this case.

The broader impact of the photo requirement on the Wilson Colony

community is relevant at the proportionality stage of the s. 1  analysis,

specifically in weighing the deleterious and salutary effects of the impugned

regulation. The extent to which the impugned law undermines the proper

functioning of the community properly informs that comparison. Community

impact does not, however, transform the essential claim — that of the

individual claimants for photo‑free licences — into an assertion of a group

right.

[32] An infringement of s. 2  (a) of the Charter  will be made out

where: (1) the claimant sincerely believes in a belief or practice that has a

nexus with religion; and (2) the impugned measure interferes with the

claimant’s ability to act in accordance with his or her religious beliefs in a

manner that is more than trivial or insubstantial: Syndicat Northcrest v.

Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551, and Multani. “Trivial or

insubstantial” interference is interference that does not threaten actual

religious beliefs or conduct. As explained in R. v. Edwards Books and Art

Ltd., [1986] 2 S.C.R. 713, at p. 759, per Dickson C.J.:

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The purpose of s. 2  (a) is to ensure that society does not interfere with

profoundly personal beliefs that govern one’s perception of oneself,

humankind, nature, and, in some cases, a higher or different order of

being. These beliefs, in turn, govern one’s conduct and practices. The

Constitution shelters individuals and groups only to the extent that

religious beliefs or conduct might reasonably or actually be threatened.

For a state-imposed cost or burden to be proscribed by s. 2  (a) it must

be capable of interfering with religious belief or practice. In short,

legislative or administrative action which increases the cost of practising

or otherwise manifesting religious beliefs is not prohibited if the burden

is trivial or insubstantial: see, on this point, R. v. Jones, [1986] 2 S.C.R.

284, per Wilson J. at p. 314. [Emphasis added.]

[33] The Province concedes the first element of this s. 2  (a) test,

sincere belief in a belief or practice that has a nexus with religion. The

chambers judge described the concession in the following terms:

The Attorney General does not dispute that the Applicants hold

sincere religious beliefs that conflict with the requirement that those who obtain or renew an Alberta operator’s licence must permit a digital photograph to be taken and that those beliefs are honestly held. [para. 6]

[34] The record does not disclose a concession on the second

element of the test — whether the universal photo requirement interferes

with Colony members’ religious freedom in a manner that is more than trivial

or insubstantial. In order for such a determination to be made, it would

need to be shown that the claimants’ “religious beliefs or conduct might

reasonably or actually be threatened” by the universal photo requirement:

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see Edwards Books, at p. 759. Evidence of a state‑imposed cost or burden

would not suffice; there would need to be evidence that such a burden was

“capable of interfering with religious belief or practice”: Edwards Books, at p.

759. In the present case, however, the courts below seem to have

proceeded on the assumption that this requirement was met. Given this

assumption, I will proceed to consider whether the limit is a reasonable one,

demonstrably justified in a free and democratic society.

(2) Is the Limit on the Section 2  (a) Right Justified Under Section 1

of the Charter ?

[35] This Court has recognized that a measure of leeway must be

accorded to governments in determining whether limits on rights in public

programs that regulate social and commercial interactions are justified under

s. 1  of the Charter  . Often, a particular problem or area of activity can

reasonably be remedied or regulated in a variety of ways. The schemes are

typically complex, and reflect a multitude of overlapping and conflicting

interests and legislative concerns. They may involve the expenditure of

government funds, or complex goals like reducing antisocial behaviour. The

primary responsibility for making the difficult choices involved in public

governance falls on the elected legislature and those it appoints to carry out

its policies. Some of these choices may trench on constitutional rights.

[36] Freedom of religion presents a particular challenge in this

respect because of the broad scope of the Charter  guarantee. Much of the

regulation of a modern state could be claimed by various individuals to have

a more than trivial impact on a sincerely held religious belief. Giving effect to

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each of their religious claims could seriously undermine the universality of

many regulatory programs, including the attempt to reduce abuse of driver’s

licences at issue here, to the overall detriment of the community.

[37] If the choice the legislature has made is challenged as

unconstitutional, it falls to the courts to determine whether the choice falls

within a range of reasonable alternatives. Section 1  of the Charter  does

not demand that the limit on the right be perfectly calibrated, judged in

hindsight, but only that it be “reasonable” and “demonstrably justified”.

Where a complex regulatory response to a social problem is challenged,

courts will generally take a more deferential posture throughout the s. 1 

analysis than they will when the impugned measure is a penal statute

directly threatening the liberty of the accused. Courts recognize that the

issue of identity theft is a social problem that has grown exponentially in

terms of cost to the community since photo licences were introduced in

Alberta in 1974, as reflected in the government’s attempt to tighten the

scheme when it discontinued the religious exemption in 2003. The bar of

constitutionality must not be set so high that responsible, creative solutions

to difficult problems would be threatened. A degree of deference is therefore

appropriate: Edwards Books, at pp. 781-82, per Dickson C.J., and Canada

(Attorney General) v. JTI‑Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R.

610, at para. 43, per McLachlin C.J.

[38] With this in mind, I turn to the question of whether the

limit on freedom of religion raised in this case has been shown to be justified

under s. 1  of the Charter  .

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(a) Is the Limit Prescribed by Law?

[39] Section 1  requires that before a proportionality analysis is

undertaken, the court must satisfy itself that the measure is “prescribed by

law”. If a limit on a Charter  right is not “prescribed by law” it cannot be

justified under s. 1  . Rather, it is a government act, attracting a remedy

under s. 24  of the Charter  . Regulations are measures “prescribed by

law” under s. 1  of the Charter : see Irwin Toy Ltd. v. Quebec (Attorney

General), [1989] 1 S.C.R. 927, at p. 981; R. v. Therens, [1985] 1 S.C.R. 613,

at p. 645.

[40] The majority of the Court of Appeal expressed concern that

the challenged measure was adopted by regulation and therefore without

any legislative debate, pursuant to an Act with very different objectives. The

respondents take this position much further and advance a general

proposition that Charter  -infringing measures may only be adopted by

primary legislation. Concern about overextension of regulatory authority is

understandable. Governments should not be free to use a broad delegated

authority to transform a limited-purpose licensing scheme into a de facto

universal identification system beyond the reach of legislative oversight.

However, that is not what has happened here. A photo requirement has

been an accepted part of the motor vehicle licensing scheme for decades. It

is not a stand-alone identification divorced from the public-safety purpose of

the authorizing legislation. Moreover, hostility to the regulation-making

process is out of step with this Court’s jurisprudence and with the realities of

the modern regulatory state: see Little Sisters Book and Art Emporium v.

Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120, at para.

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71; D.J. Mullan, Administrative Law: Cases, Text and Materials (5th ed.

2003), at p. 948. Regulations, passed by Order in Council and applied in

accordance with the principles of administrative law and subject to challenge

for constitutionality, are the life blood of the administrative state and do not

imperil the rule of law. Whether the impugned measure was passed into law

by statute or regulation is usually of no consequence for the s. 1  analysis.

(b) Is the Purpose for Which the Limit Is Imposed Pressing and

Substantial?

[41] The chambers judge defined the government’s objective in

imposing a universal photo requirement as being “to prevent identity theft or

fraud and the various forms of mischief which identity theft may facilitate,

and . . . the harmonization of international and interprovincial standards for

photo identification” (para. 10). This objective is part of the larger goal of

ensuring the integrity of the system for licensing drivers. As Slatter J.A.

explained:

Driver’s licences are an important part of the overall regulation of traffic

safety. They have become a near universal form of identification. The

integrity and reliability of the driver’s licence system benefits all

Albertans who require, on a routine basis, proof of their identity. The

presence of photographs is an important part of the integrity of the

system. There unfortunately are significantly large groups of people

who seek to exploit the identities of others for financial or other

purposes. The overall cost of the activities of this group are very large,

and the [Province] (and all Albertans) have an obligation to do whatever

they can to minimize the opportunities for identity theft. Photographs on

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driver’s licences will not eliminate all misuse, and the value of the

savings that will result are hard to measure. They are likely however to

be significant. [para. 127]

[42] 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 purpose of

a universal photo requirement is to have a complete digital data bank of

facial photos to prevent wrongdoers from using driver’s licences as breeder

documents for purposes of identity theft. As discussed above (para. 10), the

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.

[43] The chambers judge found that the universal photo

requirement was also aimed at harmonization of international and

interprovincial standards for photo identification. The evidence supports the

Province’s contention that other provinces and nations are moving toward

harmonization, and that a feature of this harmonization is likely to be a

universal photo requirement for all licence holders. While the fact that other

provinces have not yet moved to this requirement arguably undercuts the

position that a universal photo requirement is necessary in Alberta now,

governments are entitled to act in the present with a view to future

developments. Accordingly, harmonization may be considered as a factor

relevant to the Province’s goal of ensuring the integrity of the licensing

system by reducing identity theft associated with the system.

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[44] The majority of the Court of Appeal suggested that the goal

of the universal photo requirement should be confined to purposes related to

traffic safety, since that was the subject of the authorizing Act. However,

government regulations may deal both with the primary goal of an enabling

law and with collateral concerns resulting from measures adopted to achieve

this goal. As Slatter J.A. put it, “[i]t is the height of formality to suggest that

the prevention of the misuse of a driver’s licence is not one of the purposes

of the Traffic Safety Act. Provisions that attempt to prevent the misuse or

abuse of an enactment are well within the objectives of the enactment”

(para. 90).

[45] In this case, the government’s primary goal is traffic safety,

as denoted by the title of the Act. To further this goal, the Act puts in place

a system of licensing drivers. A collateral effect of the licensing system is

that the driver’s licences issued under this system have become generalized

identification documents, with the attendant risk that they might be misused

for identity theft and the various mischiefs that flow from identity theft. The

Province was entitled to pass regulations dealing not only with the primary

matter of highway safety, but with collateral problems associated with the

licensing system. It was therefore entitled to adopt a regulation requiring

photos of all drivers to be held in a digital photo bank, thereby minimizing

the risk of identity theft to the extent possible.

[46] Finally, as explained above, the fact that the specific

objectives of the impugned regulation were not debated or ratified by the

legislature does not render them invalid for the purposes of s. 1  . If a

regulation is validly enacted pursuant to delegated legislative authority, its

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objective can properly be evaluated under the test established in Oakes.

[47] I conclude that the Province has established that the goal of

ensuring the integrity of the driver’s licensing system so as to minimize

identity theft associated with that system is pressing and substantial.

Having established that the limit on the right is a measure “prescribed by

law” and that the asserted purpose of the limit is pressing and substantial,

the remaining issue is whether the limit is proportionate, in the sense that it

is rationally connected to the goal, limits the right as little as reasonably

necessary, and is proportionate in its effects.

(c) Is the Means by Which the Goal Is Furthered Proportionate?

(i) Is the Limit Rationally Connected to the Purpose?

[48] At this stage, the Province must show that the universal

photo requirement is rationally connected to the goal of preserving the

integrity of the driver’s licensing system by minimizing the risk of identity

theft through the illicit use of driver’s licences. To establish a rational

connection, the government “must show a causal connection between the

infringement and the benefit sought on the basis of reason or logic”: RJR-

MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para.

153. The rational connection requirement is aimed at preventing limits being

imposed on rights arbitrarily. The government must show that it is

reasonable to suppose that the limit may further the goal, not that it will do

so.

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[49] The government argues that a universal system of photo

identification for drivers will be more effective in preventing identity theft

than a system that grants exemptions to people who object to photos being

taken on religious grounds. The affidavit evidence filed by the government

supports this view.

[50] Alberta’s evidence demonstrates the ways in which the

existence of an exemption from the photo requirement would increase the

vulnerability of the licensing system and the risk of identity-related fraud. As

Mr. Joseph Mark Pendleton, Director of the Special Investigations Unit of the

Alberta Ministry of Government Services, put it in his affidavit supporting

Alberta’s position, “[o]pportunities for fraud are as numerous as criminals

are clever and resourceful”. The existence of non-photo licences in the

system raises the possibility that a person could hold multiple licences in

different names, as long as no more than one of them was a regular

photographic licence. As stated by Alberta, “each licensee whose photo is

not entered in our database creates an opportunity for impersonation by

wrongdoers, because that person’s licence can be renewed or replaced by a

wrongdoer without being detected by [facial recognition]”. A non-photo

licence can be obtained and used to obtain credit or enter into other

commercial relationships to the detriment of the other parties to the

transactions. Without the photographs of all licence holders in the photo

identification bank, the assurance of a one-to-one correspondence between

individuals and issued licences is lost, and the possibility of driver’s licence-

based fraud would be increased.

[51] The majority of the Alberta Court of Appeal, while deciding

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the case on the basis of minimum impairment, expressed doubt on whether

the universal photo requirement for all holders of driver’s licences is

rationally connected to the goal of preserving the integrity and security of

the driver’s licensing system. Conrad J.A. pointed out that many Albertans

do not hold driver’s licences and concluded that the risk flowing from

exempting a few hundred Hutterites from the requirement was “minimal”.

These concerns confuse rational connection with proportionality of negative

and positive effects of the measure. The issue at the stage of rational

connection is simply whether there is a rational link between the infringing

measure and the government goal. The balance between positive and

negative effects of the measure falls to be considered at the final stage of

the s. 1  analysis.

[52] I conclude that the Province has established that the

universal photo requirement is rationally related to its goal of protecting the

integrity of the driver’s licensing system and preventing it from being used

for purposes of identity theft.

(ii) Does the Limit Minimally Impair the Right?

[53] The question at this stage of the s. 1  proportionality

analysis is whether the limit on the right is reasonably tailored to the

pressing and substantial goal put forward to justify the limit. Another way

of putting this question is to ask whether there are less harmful means of

achieving the legislative goal. In making this assessment, the courts accord

the legislature a measure of deference, particularly on complex social issues

where the legislature may be better positioned than the courts to choose

among a range of alternatives.

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[54] In RJR-MacDonald, the minimal impairment analysis was

explained as follows, at para. 160:

As the second step in the proportionality analysis, the government

must show that the measures at issue impair the right of free expression

as little as reasonably possible in order to achieve the legislative

objective. The impairment must be “minimal”, that is, the law must be

carefully tailored so that rights are impaired no more than necessary. The

tailoring process seldom admits of perfection and the courts must accord

some leeway to the legislator. If the law falls within a range of

reasonable alternatives, the courts will not find it overbroad merely

because they can conceive of an alternative which might better tailor

objective to infringement . . . . On the other hand, if the government fails

to explain why a significantly less intrusive and equally effective

measure was not chosen, the law may fail. [Emphasis added; citations

omitted.]

In this manner, the legislative goal, which has been found to be pressing and

substantial, grounds the minimum impairment analysis. As Aharon Barak, former

President of the Supreme Court of Israel, puts it, “the rational connection test and the

least harmful measure [minimum impairment] test are essentially determined against

the background of the proper objective, and are derived from the need to realize it”:

“Proportional Effect: The Israeli Experience” (2007), 57 U.T.L.J. 369, at p. 374.

President Barak describes this as the “internal limitation” in the minimum

impairment test, which “prevents it [standing alone] from granting proper protection

to human rights” (p. 373). The internal limitation arises from the fact that the

minimum impairment test requires only that the government choose the least drastic

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means of achieving its objective. Less drastic means which do not actually achieve

the government’s objective are not considered at this stage.

[55] I hasten to add that in considering whether the government’s

objective could be achieved by other less drastic means, the court need not

be satisfied that the alternative would satisfy the objective to exactly the

same extent or degree as the impugned measure. In other words, the court

should not accept an unrealistically exacting or precise formulation of the

government’s objective which would effectively immunize the law from

scrutiny at the minimal impairment stage. The requirement for an “equally

effective” alternative measure in the passage from RJR-MacDonald, quoted

above, should not be taken to an impractical extreme. It includes alternative

measures that give sufficient protection, in all the circumstances, to the

government’s goal: Charkaoui v. Canada (Citizenship and Immigration),

2007 SCC 9, [2007] 1 S.C.R. 350. While the government is entitled to

deference in formulating its objective, that deference is not blind or

absolute. The test at the minimum impairment stage is whether there is an

alternative, less drastic means of achieving the objective in a real and

substantial manner. As I will explain, in my view the record in this case

discloses no such alternative.

[56] The purpose of the limit in this case, I earlier concluded, is to

maintain the integrity of the driver’s licensing system by minimizing the risk

of driver’s licences being used for purposes of identity theft, so as to prevent

fraud and various other misuses of the system. The regulation is part of a

complex regulatory scheme and is aimed at an emerging and challenging

problem. The question, therefore, is whether the means chosen to further

its purpose — the universal photo requirement for all licensed drivers — is

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reasonably tailored to address the problem of identity theft associated with

driver’s licences.

[57] The Province proposes alternatives which maintain the

universal photo requirement, but minimize its impact on Colony members by

eliminating or alleviating the need for them to carry photos. This would

permit the Province to achieve its goal of a maximally efficient photo

recognition system to combat fraud associated with driver’s licences, while

reducing the impact on the members’ s. 2  (a) rights.

[58] However, the Hutterian claimants reject these proposals. For

them, the only acceptable measure is one that entirely removes the limit on

their s. 2  (a) rights. They object to any photo being taken and held in a

photo data bank. For them, the only alternative is a driver’s licence issued

without a photo, stamped with the words, “Not to be used for identification

purposes”.

[59] The problem with the claimants’ proposal in the context of

the minimum impairment inquiry is that it compromises the Province’s goal

of minimizing the risk of misuse of driver’s licences for identity theft. The

stamp “Not to be used for identification purposes” might prevent a person

who comes into physical possession of such a licence from using it as a

breeder document, but it would not prevent a person from assuming the

identity of the licence holder and producing a fake document, which could

not be checked in the absence of a photo in the data bank. As Slatter J.A.

pointed out, without the photo in the bank, the bank is neutralized and the

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risk that the identity of the holder can be stolen and used for fraudulent

purposes is increased. The only way to reduce that risk as much as possible

is through a universal photo requirement. The claimants’ argument that the

reduction in risk would be low, since few people are likely to request

exemption from the photo requirement, assumes that some increase in risk

and impairment of the government goal may occur, and hence does not

assist at the stage of minimal impairment.

[60] The claimants’ proposal, instead of asking what is minimally

required to realize the legislative goal, asks the government to significantly

compromise it. An exemption for an unspecified number of religious

objectors would mean that the one-to-one correspondence between issued

licences and photos in the data bank would be lost. As shown by the

Province, this disparity could well be exploited by wrongdoers. Contrary to

the suggestion of LeBel J. (para. 201), the evidence discloses no alternative

measures which would substantially satisfy the government’s objective while

allowing the claimants to avoid being photographed. In short, the

alternative proposed by the claimants would significantly compromise the

government’s objective and is therefore not appropriate for consideration at

the minimal impairment stage.

[61] This is not to suggest the Colony members are acting

improperly. Freedom of religion cases may often present this “all or

nothing” dilemma. Compromising religious beliefs is something adherents

may understandably be unwilling to do. And governments may find it

difficult to tailor laws to the myriad ways in which they may trench on

different people’s religious beliefs and practices. The result may be that the

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justification of a limit on the right falls to be decided not at the point of

minimal impairment, which proceeds on the assumption the state goal is

valid, but at the stage of proportionality of effects, which is concerned about

balancing the benefits of the measure against its negative effects.

[62] I conclude that the universal photo requirement minimally

impairs the s. 2 (a) right. It falls within a range of reasonable options

available to address the goal of preserving the integrity of the driver’s

licensing system. All other options would significantly increase the risk of

identity theft using driver’s licences. The measure seeks to realize the

legislative goal in a minimally intrusive way.

[63] Much has been made of the fact that over 700,000 Albertans

do not hold driver’s licences. The argument is that the risk posed by a few

hundred potential religious objectors is minuscule as compared to the much

larger group of unlicensed persons. This argument is accepted by the

dissent. In my view, it rests on an overly broad view of the objective of the

driver’s licence photo requirement as being to eliminate all identity theft in

the province. Casting the government objective in these broad terms, my

colleague Abella J. argues that the risk posed by a few religious dissenters is

minimal, when compared to the general risk posed by unlicensed persons.

But with respect, that is the wrong comparison. We must take the

government’s goal as it is. 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 so as to minimize identity theft associated with that system.

The question is whether, within that system, any exemptions, including for

religious reasons, pose real risk to the integrity of the licensing system.

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[64] The implication of Justice Abella’s reasoning is that because

the province tolerates the identity theft risk posed by unlicensed Albertans, it

must therefore tolerate the risk associated with non-photographed licensees.

On this logic, the province would be required to take the more radical

approach of requiring photographic identification for every Albertan, which

would directly contravene the respondents’ religious beliefs, before it could

rely upon a security risk argument in the context of the narrower driver’s

licensing program. In my opinion, the province has a legitimate interest in

ensuring the integrity of its driver’s licensing system and guarding against

the risk that it will be used to perpetrate fraud. In order to accomplish this

goal, it should not be forced to undertake broader measures that it might

have resisted for other policy reasons.

[65] The courts below approached minimum impairment in a

different fashion. First, they conducted the balancing inquiry at the stage of

minimal impairment. Second, drawing on this Court’s decision in Multani, the

courts below applied a reasonable accommodation analysis instead of the

Oakes test.

[66] In my view, a distinction must be maintained between the

reasonable accommodation analysis undertaken when applying human rights

laws, and the s. 1  justification analysis that applies to a claim that a law

infringes the Charter  . Where the validity of a law is at stake, the

appropriate approach is a s. 1  Oakes analysis. Under this analysis, the

issue at the stage of minimum impairment is whether the goal of the

measure could be accomplished in a less infringing manner. The balancing

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of effects takes place at the third and final stage of the proportionality test.

If the government establishes justification under the Oakes test, the law is

constitutional. If not, the law is null and void under s. 52  insofar as it is

inconsistent with the Charter  .

[67] A different analysis applies where a government action or

administrative practice is alleged to violate the claimant’s Charter  rights. If

a Charter  violation is found, the court’s remedial jurisdiction lies not under

s. 52  of the Constitution Act, 1982  but under s. 24(1)  of the Charter  :

R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61. In such cases,

the jurisprudence on the duty to accommodate, which applies to

governments and private parties alike, may be helpful “to explain the

burden resulting from the minimal impairment test with respect to a

particular individual” (emphasis added): Multani, at para. 53, per Charron J.

[68] Minimal impairment and reasonable accommodation are

conceptually distinct. Reasonable accommodation is a concept drawn from

human rights statutes and jurisprudence. It envisions a dynamic process

whereby the parties — most commonly an employer and employee — adjust

the terms of their relationship in conformity with the requirements of human

rights legislation, up to the point at which accommodation would mean

undue hardship for the accommodating party. In Multani, Deschamps and

Abella JJ. explained:

The process required by the duty of reasonable accommodation

takes into account the specific details of the circumstances of the parties

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and allows for dialogue between them. This dialogue enables them to

reconcile their positions and find common ground tailored to their own

needs. [para. 131]

[69] A very different kind of relationship exists between a

legislature and the people subject to its laws. By their very nature, laws of

general application are not tailored to the unique needs of individual

claimants. The legislature has no capacity or legal obligation to engage in

such an individualized determination, and in many cases would have no

advance notice of a law’s potential to infringe Charter  rights. It cannot be

expected to tailor a law to every possible future contingency, or every

sincerely held religious belief. Laws of general application affect the general

public, not just the claimants before the court. The broader societal context

in which the law operates must inform the s. 1  justification analysis. A

law’s constitutionality under s. 1  of the Charter  is determined, not by

whether it is responsive to the unique needs of every individual claimant, but

rather by whether its infringement of Charter  rights is directed at an

important objective and is proportionate in its overall impact. While the law’s

impact on the individual claimants is undoubtedly a significant factor for the

court to consider in determining whether the infringement is justified, the

court’s ultimate perspective is societal. The question the court must answer

is whether the Charter  infringement is justifiable in a free and democratic

society, not whether a more advantageous arrangement for a particular

claimant could be envisioned.

[70] Similarly, “undue hardship”, a pivotal concept in reasonable

accommodation, is not easily applicable to a legislature enacting laws. In

the human rights context, hardship is seen as undue if it would threaten the

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viability of the enterprise which is being asked to accommodate the right.

The degree of hardship is often capable of expression in monetary terms. By

contrast, it is difficult to apply the concept of undue hardship to the cost of

achieving or not achieving a legislative objective, especially when the

objective is (as here) preventative or precautionary. Though it is possible to

interpret “undue hardship” broadly as encompassing the hardship that

comes with failing to achieve a pressing government objective, this

attenuates the concept. Rather than strain to adapt “undue hardship” to the

context of s. 1  of the Charter  , it is better to speak in terms of minimal

impairment and proportionality of effects.

[71] In summary, where the validity of a law of general

application is at stake, reasonable accommodation is not an appropriate

substitute for a proper s. 1  analysis based on the methodology of Oakes.

Where the government has passed a measure into law, the provisions of s. 1

 apply. 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.

(iii) Is the Law Proportionate in Its Effect?

[72] The third and final step of the proportionality analysis is to

determine proportionality of effects. We have seen that the regulation

advances an important objective; that its limitation on the Colony members’

religious freedom is rationally connected to that goal; and that the means

chosen to achieve the government objective — the universal photo

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requirement — meet the requirement of minimal impairment.

[73] This leaves a final question: are the overall effects of the law

on the claimants disproportionate to the government’s objective? When one

balances the harm done to the claimants’ religious freedom against the

benefits associated with the universal photo requirement for driver’s

licences, is the limit on the right proportionate in effect to the public benefit

conferred by the limit?

[74] In Oakes, Dickson C.J. explained the function of this third

and final step of the proportionality analysis:

Some limits on rights and freedoms protected by the Charter  will be

more serious than others in terms of the nature of the right or freedom

violated, the extent of the violation, and the degree to which the

measures which impose the limit trench upon the integral principles of a

free and democratic society. Even if an objective is of sufficient

importance, and the first two elements of the proportionality test are

satisfied, it is still possible that, because of the severity of the deleterious

effects of a measure on individuals or groups, the measure will not be

justified by the purposes it is intended to serve. The more severe the

deleterious effects of a measure, the more important the objective must

be if the measure is to be reasonable and demonstrably justified in a free

and democratic society. [pp. 139-40]

[75] Despite the importance Dickson C.J. accorded to this stage of

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the justification analysis, it has not often been used. Indeed, Peter W. Hogg

argues that the fourth branch of Oakes is actually redundant: Constitutional

Law of Canada (5th ed. Supp.), vol. 2, at section 38.12. He finds

confirmation of this view in the fact that he is unable to locate any case in

which this stage of the analysis has been decisive to the outcome. In his

opinion, this is because it essentially duplicates the analysis undertaken at

the first stage, pressing and substantial objective. If a law has an objective

deemed sufficiently important to override a Charter  right and has been

found to do so in a way which is rationally connected to the objective and

minimally impairing of the right, Hogg asks rhetorically, how can the law’s

effects nonetheless be disproportionate to its objective? In his view, a

finding that a law’s objective is “pressing and substantial” at the first stage

of Oakes will always produce a conclusion that its effects are proportionate.

The real balancing must be done under the heading of minimal impairment

and, to a much more limited extent, rational connection.

[76] It may be questioned how a law which has passed the

rigours of the first three stages of the proportionality analysis — pressing

goal, rational connection, and minimum impairment — could fail at the final

inquiry of proportionality of effects. The answer lies in the fact that the first

three stages of Oakes are anchored in an assessment of the law’s purpose.

Only the fourth branch takes full account of the “severity of the deleterious

effects of a measure on individuals or groups”. As President Barak explains:

Whereas the rational connection test and the least harmful measure test

are essentially determined against the background of the proper

objective, and are derived from the need to realize it, the test of

proportionality (stricto sensu) examines whether the realization of this

proper objective is commensurate with the deleterious effect upon the

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human right. . . . It requires placing colliding values and interests side by

side and balancing them according to their weight. [p. 374]

In my view, the distinction drawn by Barak is a salutary one, though it has not

always been strictly followed by Canadian courts. Because the minimal impairment

and proportionality of effects analyses involve different kinds of balancing,

analytical clarity and transparency are well served by distinguishing between them.

Where no alternative means are reasonably capable of satisfying the government’s

objective, the real issue is whether the impact of the rights infringement is

disproportionate to the likely benefits of the impugned law. Rather than reading

down the government’s objective within the minimal impairment analysis, the court

should acknowledge that no less drastic means are available and proceed to the final

stage of Oakes.

[77] The final stage of Oakes allows for a broader assessment of

whether the benefits of the impugned law are worth the cost of the rights

limitation. In Thomson Newspapers Co. v. Canada (Attorney General),

[1998] 1 S.C.R. 877, Bastarache J. explained:

The third stage of the proportionality analysis performs a

fundamentally distinct role. . . . The focus of the first and second steps of

the proportionality analysis is not the relationship between the measures

and the Charter  right in question, but rather the relationship between

the ends of the legislation and the means employed. Although the

minimal impairment stage of the proportionality test necessarily takes

into account the extent to which a Charter  value is infringed, the

ultimate standard is whether the Charter  right is impaired as little as

possible given the validity of the legislative purpose. The third stage of

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the proportionality analysis provides an opportunity to assess, in light of

the practical and contextual details which are elucidated in the first and

second stages, whether the benefits which accrue from the limitation are

proportional to its deleterious effects as measured by the values

underlying the Charter  . [Emphasis in original; para. 125.]

[78] In my view, this is a case where the decisive analysis falls to

be done at the final stage of Oakes. The first two elements of the

proportionality test — rational connection and minimum impairment — are

satisfied, and the matter stands to be resolved on whether the “deleterious

effects of a measure on individuals or groups” outweigh the public benefit

that may be gained from the measure. In cases such as this, where the

demand is that the right be fully respected without compromise, the

justification of the law imposing the limit will often turn on whether the

deleterious effects are out of proportion to the public good achieved by the

infringing measure.

1. Salutary Effects

[79] The first inquiry is into the benefits, or “salutary effects”

associated with the legislative goal. Three salutary effects of the universal

photo requirement were raised on the evidence: (1) enhancing the security

of the driver’s licensing scheme; (2) assisting in roadside safety and

identification; and (3) eventually harmonizing Alberta’s licensing scheme

with those in other jurisdictions.

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[80] The most important of these benefits and the one upon

which Alberta principally relies is the enhancement of the security or

integrity of the driver’s licensing scheme. The photo requirement ensures

both a “one-to-one” and “one-to-many” correspondence among licence

holders. This makes it possible, through the use of computer software, to

ensure that no person holds more than one licence. It is clear on the

evidence that the universal photo requirement enhances the security of the

licensing system and thus of Albertans. Mandatory photos represent a

significant gain to the integrity and usefulness of the computer comparison

system. In short, requiring that all licence holders are represented by a

digital photo in the data bank will accomplish these security-related

objectives more effectively than would an exemption for an as yet

undetermined number of religious objectors. Any exemptions would

undermine the certainty with which the government is able to say that a

given licence corresponds to an identified individual and that no individual

holds more than one licence. This evidence stands effectively

uncontradicted.

[81] Though it is difficult to quantify in exact terms how much risk

of fraud would result from permitted exemptions, it is clear that the internal

integrity of the system would be compromised. In this respect, the present

case may be contrasted with previous religious freedom cases where this

Court has found that the potential risk was too speculative.

[82] In Trinity Western University v. British Columbia College of

Teachers, 2001 SCC 31, [2001] 1 S.C.R. 772, a risk was held to be overly

speculative because there was insufficient evidence that potentially

discriminatory beliefs were actually resulting in discriminatory conduct. In

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the present case, by contrast, it is clear that the photo exemption would

have a tangible impact on the integrity of the licensing system because it

would undermine one-to-one and one-to-many photo comparisons to verify

identity.

[83] Similarly, in Amselem, the “security concern” posed by the

construction of personal succahs was purely speculative because there was

no evidence that emergency exits were actually being blocked. The

appellants had offered to set up their succahs “in such a way that they

would not block any doors, would not obstruct fire lanes, [and] would pose

no threat to safety or security in any way” (para. 89). The Court noted that

“security concerns, if soundly established, would require appropriate

recognition in ascertaining any limit on the exercise of the appellants’

religious freedom” (para. 88). Here, by contrast, it is established that

exempting people from the photo registry creates a real risk to security

because it undermines the integrity of the system.

[84] The requirement of a photo on a driver’s licence serves the

additional purpose of assisting police officers in reliably identifying drivers at

the roadside. Alberta concedes that this benefit, given the relatively small

number of persons who would seek religious exemptions, would not in itself

justify limiting freedom of religion. Yet another salutary benefit may flow

from eventual harmonization with other licensing systems. This benefit,

however, remains to be realized. While these effects may not be

determinative, they support the overall salutary effect of the universal photo

requirement.

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[85] In summary, the salutary effects of the universal photo

requirement for driver’s licences are sufficient, subject to final weighing

against the negative impact on the right, to support some restriction of the

right. As discussed earlier, a government enacting social legislation is not

required to show that the law will in fact produce the forecast benefits.

Legislatures can only be asked to impose measures that reason and the

evidence suggest will be beneficial. If legislation designed to further the

public good were required to await proof positive that the benefits would in

fact be realized, few laws would be passed and the public interest would

suffer.

2. Deleterious Effects

[86] This brings us to the deleterious effects of the limit on Colony

members’ exercise of their s. 2  (a) right. At this point, the seriousness of

the effects of the limit on Colony members’ freedom of religion falls to be

addressed. Several points call for discussion.

[87] A preliminary observation is that the seriousness of the limit

on freedom of religion varies from case to case, depending on “the nature of

the right or freedom violated, the extent of the violation, and the degree to

which the measures which impose the limit trench upon the integral

principles of a free and democratic society” (Oakes, at pp. 139-40).

[88] The deleterious effects of a limit on freedom of religion

requires us to consider the impact in terms of Charter  values, such as

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liberty, human dignity, equality, autonomy, and the enhancement of

democracy: Thomson Newspapers, at para. 125; see also Health Services

and Support — Facilities Subsector Bargaining Assn. v. British Columbia,

2007 SCC 27, [2007] 2 S.C.R. 391. The most fundamental of these values,

and the one relied on in this case, is liberty — the right of choice on matters

of religion. As stated in Amselem, per Iacobucci J., religious freedom

“revolves around the notion of personal choice and individual autonomy and

freedom” (para. 40). The question is whether the limit leaves the adherent

with a meaningful choice to follow his or her religious beliefs and practices.

[89] There is no magic barometer to measure the seriousness of a

particular limit on a religious practice. Religion is a matter of faith,

intermingled with culture. It is individual, yet profoundly communitarian.

Some aspects of a religion, like prayers and the basic sacraments, may be

so sacred that any significant limit verges on forced apostasy. Other

practices may be optional or a matter of personal choice. Between these

two extremes lies a vast array of beliefs and practices, more important to

some adherents than to others.

[90] Because religion touches so many facets of daily life, and

because a host of different religions with different rites and practices co-

exist in our society, it is inevitable that some religious practices will come

into conflict with laws and regulatory systems of general application. As

recognized by the European Court of Human Rights in Kokkinakis v. Greece,

judgment of 25 May 1993, Series A No. 260-A, cited by my colleague Abella

J., this pluralistic context also includes “atheists, agnostics, sceptics and the

unconcerned” (para. 31). Their interests are equally protected by s. 2 (a):

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R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 347. In judging the

seriousness of the limit in a particular case, the perspective of the religious

or conscientious claimant is important. However, this perspective must be

considered in the context of a multicultural, multi-religious society where the

duty of state authorities to legislate for the general good inevitably produces

conflicts with individual beliefs. The bare assertion by a claimant that a

particular limit curtails his or her religious practice does not, without more,

establish the seriousness of the limit for purposes of the proportionality

analysis. Indeed to end the inquiry with such an assertion would cast an

impossibly high burden of justification on the state. We must go further and

evaluate the degree to which the limit actually impacts on the adherent.

[91] The seriousness of a particular limit must be judged on a

case-by-case basis. However, guidance can be found in the jurisprudence.

Limits that amount to state compulsion on matters of belief are always very

serious. As the U.S. Supreme Court has stated: “At the heart of liberty is

the right to define one’s own concept of existence, of meaning, of the

universe, and of the mystery of human life. Beliefs about these matters

could not define the attributes of personhood were they formed under

compulsion of the State”: Planned Parenthood of Southeastern Pennsylvania

v. Casey, 505 U.S. 833 (1992), at p. 851.

[92] Canadian law reflects the fundamental proposition that the

state cannot by law directly compel religious belief or practice. Thus, this

Court has held that if the purpose of a law is to interfere with religious

practices, the law cannot be upheld: see Big M Drug Mart, Zylberberg v.

Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641 (C.A.), and

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Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 71

O.R. (2d) 341 (C.A.). To compel religious practice by force of law deprives

the individual of the fundamental right to choose his or her mode of

religious experience, or lack thereof. Such laws will fail at the first stage of

Oakes and proportionality will not need to be considered.

[93] Cases of direct compulsion are straightforward. However, it

may be more difficult to measure the seriousness of a limit on freedom of

religion where the limit arises not from a direct assault on the right to

choose, but as the result of incidental and unintended effects of the law. In

many such cases, the limit does not preclude choice as to religious belief or

practice, but it does make it more costly.

[94] The incidental effects of a law passed for the general good

on a particular religious practice may be so great that they effectively

deprive the adherent of a meaningful choice: see Edwards Books. Or the

government program to which the limit is attached may be compulsory, with

the result that the adherent is left with a stark choice between violating his

or her religious belief and disobeying the law: Multani. The absence of a

meaningful choice in such cases renders the impact of the limit very serious.

[95] However, in many cases, the incidental effects of a law

passed for the general good on a particular religious practice may be less

serious. The limit may impose costs on the religious practitioner in terms of

money, tradition or inconvenience. However, these costs may still leave the

adherent with a meaningful choice concerning the religious practice at

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issue. The Charter  guarantees freedom of religion, but does not indemnify

practitioners against all costs incident to the practice of religion. Many

religious practices entail costs which society reasonably expects the

adherents to bear. The inability to access conditional benefits or privileges

conferred by law may be among such costs. A limit on the right that exacts

a cost but nevertheless leaves the adherent with a meaningful choice about

the religious practice at issue will be less serious than a limit that effectively

deprives the adherent of such choice.

[96] This returns us to the task at hand — assessing the

seriousness of the limit on religious practice imposed in this case by the

regulation’s universal photo requirement for driver’s licences. This is not a

case like Edwards Books or Multani where the incidental and unintended

effect of the law is to deprive the adherent of a meaningful choice as to the

religious practice. The impugned regulation, in attempting to secure a social

good for the whole of society — the regulation of driver’s licences in a way

that minimizes fraud — imposes a cost on those who choose not to have

their photos taken: the cost of not being able to drive on the highway. But

on the evidence before us, that cost does not rise to the level of depriving

the Hutterian claimants of a meaningful choice as to their religious practice,

or adversely impacting on other Charter  values.

[97] The Hutterian claimants argue that the limit presents them

with an invidious choice: the choice between some of its members violating

the Second Commandment on the one hand, or accepting the end of their

rural communal life on the other hand. However, the evidence does not

support the conclusion that arranging alternative means of highway

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transport would end the Colony’s rural way of life. The claimants’ affidavit

says that it is necessary for at least some members to be able to drive from

the Colony to nearby towns and back. It does not explain, however, why it

would not be possible to hire people with driver’s licences for this purpose,

or to arrange third party transport to town for necessary services, like visits

to the doctor. Many businesses and individuals rely on hired persons and

commercial transport for their needs, either because they cannot drive or

choose not to drive. Obtaining alternative transport would impose an

additional economic cost on the Colony, and would go against their

traditional self-sufficiency. But there is no evidence that this would be

prohibitive.

[98] On the record before us, it is impossible to conclude that

Colony members have been deprived of a meaningful choice to follow or not

to follow the edicts of their religion. The law does not compel the taking of

a photo. It merely provides that a person who wishes to obtain a driver’s

licence must permit a photo to be taken for the photo identification data

bank. Driving automobiles on highways is not a right, but a privilege. While

most adult citizens hold driver’s licences, many do not, for a variety of

reasons.

[99] I conclude that the impact of the limit on religious practice

imposed by the universal photo requirement for obtaining a driver’s licence

is that Colony members will be obliged to make alternative arrangements for

highway transport. This will impose some financial cost on the community

and depart from their tradition of being self-sufficient in terms of transport.

These costs are not trivial. But on the record, they do not rise to the level of

seriously affecting the claimants’ right to pursue their religion. They do not

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negate the choice that lies at the heart of freedom of religion.

3. Weighing the Salutary and Deleterious Effects

[100] Having considered the seriousness of the limit in terms of

its impact on the claimants’ freedom of religion, we must balance these

deleterious effects against the salutary effects of the law, in order to

determine whether the overall impact of the law is proportionate.

[101] The law has an important social goal — to maintain an

effective driver’s licence scheme that minimizes the risk of fraud to citizens

as a whole. This is not a goal that should lightly be sacrificed. The evidence

supports the conclusion that the universal photo requirement addresses a

pressing problem and will reduce the risk of identity-related fraud, when

compared to a photo requirement that permits exceptions.

[102] Against this important public benefit must be weighed the

impact of the limit on the claimants’ religious rights. While the limit imposes

costs in terms of money and inconvenience as the price of maintaining the

religious practice of not submitting to photos, it does not deprive members

of their ability to live in accordance with their beliefs. Its deleterious effects,

while not trivial, fall at the less serious end of the scale.

[103] Balancing the salutary and deleterious effects of the law, I

conclude that the impact of the limit on religious practice associated with the

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universal photo requirement for obtaining a driver’s licence, is proportionate.

(d) Conclusion on Justification

[104] I conclude that the limit on the Colony members’ freedom

of religion imposed by the universal photo requirement for holders of driver’s

licences has been shown to be justified under s. 1  of the Charter  . The

goal of minimizing the risk of fraud associated with driver’s licences is

pressing and substantial. The limit is rationally connected to the goal. The

limit impairs the right as little as reasonably possible in order to achieve the

goal; the only alternative proposed would significantly compromise the goal

of minimizing the risk. Finally, the measure is proportionate in terms of

effects: the positive effects associated with the limit are significant, while the

impact on the claimants, while not trivial, does not deprive them of the

ability to follow their religious convictions.

B. The Claim Under Section 15

[105] The s. 15 claim was not considered at any length by the

courts below and addressed only summarily by the parties in this Court. In

my view, it is weaker than the s. 2  (a) claim and can easily be dispensed

with. To the extent that the s. 15(1) argument has any merit, many of my

reasons for dismissing the s. 2  (a) claim apply to it as well.

[106] Briefly, s. 15(1) is “aimed at preventing discriminatory

distinctions that impact adversely on members of groups identified by the

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grounds enumerated in s. 15 and analogous grounds”: R. v. Kapp, 2008 SCC

41, [2008] 2 S.C.R. 483, at para. 16. Religion is a ground enumerated in s.

15. As recently restated by this Court in Kapp, at para. 17, the test for

discrimination under s. 15(1) is as follows:

(1) Does the law create a distinction based on an enumerated or

analogous ground?

(2) Does the distinction create a disadvantage by perpetuating prejudice

or stereotyping?

[107] The respondents claim that “[r]efusing to issue licences to

the Wilson Members who otherwise qualify for such licences simply because

they refuse to abandon their religious belief in the Second Commandment,

but issuing licences to the comparator group simply because they do not

share such religious belief, clearly demeans and infringes upon the human

dignity of the Wilson Members” (Factum, at para. 39). However, photo

licences are not issued to other drivers “simply because they do not share

such religious belief”, but rather because they meet the statutory

requirements for issuance of a licence — which include having a photo

taken.

[108] Assuming the respondents could show that the regulation

creates a distinction on the enumerated ground of religion, it arises not from

any demeaning stereotype but from a neutral and rationally defensible policy

choice. There is no discrimination within the meaning of Andrews v. Law

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Society of British Columbia, [1989] 1 S.C.R. 143, as explained in Kapp. The

Colony members’ claim is to the unfettered practice of their religion, not to

be free from religious discrimination. The substance of the respondents’ s.

15(1) claim has already been dealt with under s. 2  (a). There is no breach

of s. 15(1).

VI. Conclusion

[109] The impugned regulation is a reasonable limit on religious

freedom, demonstrably justified in a free and democratic society. I would

therefore allow the appeal. The constitutional questions stated in my order

of January 16, 2008 should be answered as follows:

1. Does s. 14(1)(b) of Alberta’s Operator Licensing and Vehicle

Control Regulation, Alta. Reg. 320/2002, as amended by Alta. Reg.

137/2003, infringe s. 2  (a) of the Canadian Charter of Rights and

Freedoms ?

Answer: Yes.

2. If so, is the infringement a reasonable limit prescribed by law as can

be demonstrably justified in a free and democratic society under s. 1

 of the Canadian Charter of Rights and Freedoms ?

Answer: Yes.

3. Does s. 14(1)(b) of Alberta’s Operator Licensing and Vehicle

Control Regulation, Alta. Reg. 320/2002, as amended by Alta. Reg.

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137/2003, infringe s. 15(1)  of the Canadian Charter of Rights and

Freedoms ?

Answer: No.

4. If so, is the infringement a reasonable limit prescribed by law as can

be demonstrably justified in a free and democratic society under s. 1

 of the Canadian Charter of Rights and Freedoms ?

Answer: It is not necessary to answer this question.

The following are the reasons delivered by

[110] ABELLA J. (dissenting) — Freedom of religion is a core,

constitutionally protected democratic value. To justify its impairment,

therefore, the government must demonstrate that the benefits of the

infringement outweigh the harm it imposes. This was enunciated by Dickson

C.J. in R. v. Oakes, [1986] 1 S.C.R. 103, where he developed the test under

s. 1  for justifying limits to constitutional rights:

Even if an objective is of sufficient importance, . . . it is still possible

that, because of the severity of the deleterious effects of a measure on

individuals or groups, the measure will not be justified by the purposes it

is intended to serve. The more severe the deleterious effects of a

measure, the more important the objective must be if the measure is to

be reasonable and demonstrably justified in a free and democratic

society. [p. 140]

And in Liberty of Conscience: In Defense of America’s Tradition of Religious

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Equality (2008), Martha C. Nussbaum similarly observed that:

Some such burdens to religion may have to be borne, if the peace and

safety of the state are really at stake, or if there is some other extremely

strong state interest. But it seems deeply wrong for the state to put

citizens in such a tragic position needlessly, or in matters of less weight.

And often matters lying behind laws of general applicability are not so

weighty. [p. 117]

[111] It may be, however, that the nature of the particular

religious duty brings it into serious conflict with countervailing and

compelling social values and imperatives. As Dickson J. stated in R. v. Big M

Drug Mart Ltd., [1985] 1 S.C.R. 295, religious freedoms are subject to such

limitations

as are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others . . . .

. . .

. . . The values that underlie our political and philosophic traditions

demand that every individual be free to hold and to manifest whatever

beliefs and opinions his or her conscience dictates, provided . . . only

that such manifestations do not injure his or her neighbours or their

parallel rights to hold and manifest beliefs and opinions of their own.

[pp. 337 and 346]

[112] The issue in this case, therefore, is whether in balancing

the benefits of the infringing measure against the harm to the right, the

infringement is justified. With respect, unlike the Chief Justice, in my view it

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is not.

[113] The government of Alberta has imposed a mandatory

photo requirement for a driver’s licence. The stated objective of the

measure is to help reduce identity theft through the use of a facial

recognition database. The province acknowledges that roadside safety and

security are not at issue. Since the introduction of a photo requirement 29

years earlier, there had been, without incident, an exemption for those like

the Hutterites whose religion prohibits them from being photographed.

[114] The harm to the constitutional rights of the Hutterites, in

the absence of an exemption, is dramatic. Their inability to drive affects

them not only individually, but also severely compromises the autonomous

character of their religious community.

[115] Unlike the severity of its impact on the Hutterites, the

benefits to the province of requiring them to be photographed are, at best,

marginal. Over 700,000 Albertans do not have a driver’s license and are

therefore not in the province’s facial recognition database. 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.

[116] This means that the serious harm caused by the infringing

measure weighs far more heavily on the s. 1  scales than the benefits the

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province gains from its imposition on the Hutterites. The province has

therefore not discharged its onus of justifying the imposition of a mandatory

photo requirement on the members of the Wilson Colony.

Background

[117] In 1974, the Province of Alberta introduced photographs

on driver’s licences. Until 2003, the Registrar required photos as a general

rule, but could issue a non-photo Condition Code G licence if a person had a

sincere religious objection or a temporary medical condition which affected

their appearance. The Alberta Operator Licensing and Vehicle Control

Regulation, Alta. Reg. 320/2002, under the Traffic Safety Act, R.S.A. 2000,

c. T-6, governed these licences and gave the Registrar discretion to

determine whether the exemption from a photograph requirement was

justified.

[118] The Hutterites of Wilson Colony believe that the Second

Commandment, which prohibits idolatry, prohibits them from being

photographed. They also believe in communal property and live together in

religious colonies. The colonies attempt to be self-sufficient, and members

of the community operate motor vehicles in order to fulfill their

responsibilities to the community. Specifically, the Wilson Colony members

use motor vehicles 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.

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[119] In May 2003, Alberta amended the regulations to make a

photograph mandatory for all driver’s licences (Operator Licensing and

Vehicle Control Amendment Regulation, Alta. Reg. 137/2003). At the time,

there were 453 Condition Code G licences in Alberta. Of those, 56 percent,

or about 250, were held by Hutterites (2007 ABCA 160, 77 Alta. L.R. (4th)

281, per Conrad J.A., at para. 5).

[120] The purpose of the mandatory photograph was primarily

to reduce identity theft. Section 3(b) of the amended regulations allows the

Registrar to use facial recognition software to verify the identity of all licence

applicants. The photograph that is taken at the time of issuance of the

licence is incorporated into the province’s database. Facial recognition

software compares this photograph to all the other photographs in the

system, to help ensure that no one has more than one licence in his or her

name.

[121] As noted earlier, more than 700,000 Albertans do not have

a driver’s licence and are therefore not in the province’s facial recognition

database.

[122] The Wilson Colony members objected to being

photographed. Alberta then proposed two alternatives: first, that they have

their photograph taken and printed on their licences. Each licence would

then be placed in a special package which the licensee would never be

required to open, preventing the licensee from ever coming into physical

contact with the printed photo. The photographs would be stored in digital

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form in the database. The second proposal was that a photograph would be

taken but not actually printed on their licences. Only the digital images

would be stored in the facial recognition database.

[123] The Wilson Colony members rejected these alternatives

since they both required them to contravene the religious prohibition against

having their photograph taken. Their proposal was that there be a photoless

licence with a stamp indicating that the licence could not be used for

identification purposes.

[124] The failure to reach an agreement resulted in a

constitutional challenge by the members of the Wilson Colony to the

mandatory photo requirement. They were successful before the Alberta

Court of Queen’s Bench (2006 ABQB 338, 57 Alta. L.R. (4th) 300) and the

Court of Appeal.

Analysis

[125] Alberta conceded that the photo requirement impairs the

Wilson Colony members’ freedom of religion. Nor did it dispute that the

requirement places a distinctive burden on the Colony members, as the

chambers judge noted:

Nor does the Attorney General dispute that the requirement that people who wish to obtain or renew an operator’s licence is a distinctive burden for those who hold those beliefs.

In short, the Attorney General does not take issue with the

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proposition that the burden imposed upon the Applicants by Section

14(1)(b) of AR 137/2003 is a breach of the Charter  Rights of the

Applicants under both Section 2  (a) and Section 15(1)  of the

Charter  . Accordingly, there is no need to engage in an assessment of

whether Section 14(1)(b) of AR 320/2002, as amended, violates the

guaranteed Charter  rights of the Applicants. [paras. 6-7]

[126] The constitutional guarantee of freedom of conscience and

religion is found in s. 2 (a) of the Canadian Charter of Rights and Freedoms  ,

which states:

2. Everyone has the following fundamental freedoms:

(a) freedom of conscience and religion;

[127] In both Big M Drug Mart and R. v. Edwards Books and Art

Ltd., [1986] 2 S.C.R. 713, Dickson C.J. explained the significance of the

right, one that rests on the values of autonomy and dignity. In Edwards

Books, he characterized freedom of religion as “profoundly personal beliefs

that govern one’s perception of oneself, humankind, nature, and, in some

cases, a higher or different order of being. These beliefs, in turn, govern

one’s conduct and practices” (p. 759). In Big M Drug Mart, he wrote that

[t]he essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

. . .

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. . . an emphasis on individual conscience and individual judgment .

. . lies at the heart of our democratic political tradition. [pp. 336 and 346]

It is the centrality of the rights associated with freedom of individual conscience that

underlies their designation in the Canadian Charter of Rights and Freedoms  as “fundamental”. They are the sine qua non of the political tradition underlying the Charter  .

Viewed in this context, the purpose of freedom of conscience and

religion becomes clear. The values that underlie our political and

philosophic traditions demand that every individual be free to hold and

to manifest whatever beliefs and opinions his or her conscience dictates,

provided inter alia only that such manifestations do not injure his or her

neighbours or their parallel rights to hold and manifest beliefs and

opinions of their own. [p. 346]

[128] The European Court of Human Rights espoused a similarly

liberal conception of freedom of religion in Kokkinakis v. Greece, judgment

of 25 May 1993, Series A No. 260-A:

. . . freedom of thought, conscience and religion is one of the foundations of a “democratic society” within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

While religious freedom is primarily a matter of individual

conscience, it also implies . . . freedom to “manifest [one’s] religion”. Bearing witness in words and deeds is bound up with the existence of religious convictions.

. . . freedom to manifest one’s religion is not only exercisable in

community with others, “in public” and within the circle of those whose

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faith one shares, but can also be asserted “alone” and “in private” . . . .

[para. 31]

[129] In Ôahin v. Turkey [GC], No. 44774/98, ECHR 2005-XI,

the European Court of Human Rights compellingly wrote:

Pluralism, tolerance and broadmindedness are hallmarks of a

“democratic society”. Although individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of people from minorities and avoids any abuse of a dominant position. [para. 108]

(See also Jeremy Webber “The Irreducibly Religious Content of Freedom of

Religion”, in Avigail Eisenberg, ed., Diversity and Equality: The Changing

Framework of Freedom in Canada (2006), 178, at p. 184; Charles Taylor,

Philosophical Arguments (1995), at pp. 225 et seq.)

[130] Moreover, it is important to recognize that freedom of

religion has “both individual and collective aspects” (Edwards Books, at p.

781, per Dickson C.J.). Wilson J., in her partial dissent in Edwards Books,

confirmed this dual nature of freedom of religion when she said:

In his commentary on the Canadian Charter of Rights and

Freedoms  Professor Tarnopolsky . . . points out that the Charter  protects group rights as well as individual rights. He distinguishes between individual and group rights on the basis that the assertion of an individual right emphasises the proposition that everyone is to be treated the same regardless of his or her membership in a particular identifiable group whereas the assertion of a group right is based on the claim of an individual or group of individuals because of membership in a particular identifiable group: see “The Equality Rights”, in The Canadian Charter of Rights and Freedoms  : Commentary (1982), at p. 437.

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. . . it seems to me that when the Charter  protects group rights

such as freedom of religion, it protects the rights of all members of the

group. It does not make fish of some and fowl of the others. For, quite

apart from considerations of equality, to do so is to introduce an

invidious distinction into the group and sever the religious and cultural

tie that binds them together. It is, in my opinion, an interpretation of the

Charter  expressly precluded by s. 27  which requires the Charter 

to be interpreted “in a manner consistent with the preservation and

enhancement of the multicultural heritage of Canadians”. [Emphasis in

original; pp. 808-9.]

Both the individual and group aspects are engaged in this case.

[131] The group, or “community”, aspect of religious freedom

was discussed by the European Court of Human Rights in Metropolitan

Church of Bessarabia and Others v. Moldova, No. 45701/99, ECHR 2001-XII:

[T]he right of believers to freedom of religion, which includes the right to manifest one’s religion in community with others, encompasses the expectation that believers will be allowed to associate freely, without arbitrary State intervention. Indeed, the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection [of religious freedom] . . . .

In addition, one of the means of exercising the right to manifest

one’s religion, especially for a religious community, in its collective

dimension, is the possibility of ensuring judicial protection of the

community, its members and its assets . . . . [para. 118]

[132] This does not mean that the right to freedom of religion

cannot yield to a state objective whose benefits outweigh the harm to the

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right. The assertion of a sincere religious belief or duty does not end the

inquiry. As the European Court of Human Rights said in Ôahin:

[Freedom of religion] does not protect every act motivated or inspired by a religion or belief . . . .

In democratic societies, in which several religions coexist within one

and the same population, it may be necessary to place restrictions on freedom to manifest one’s religion or belief in order to reconcile the interests of the various groups and ensure that everyone’s beliefs are respected . . . .

. . .

. . . Pluralism and democracy must also be based on dialogue and a

spirit of compromise necessarily entailing various concessions on the

part of individuals or groups of individuals which are justified in order to

maintain and promote the ideals and values of a democratic society . . . .

[paras. 105, 106 and 108]

The nature of the religious right asserted will also be of relevance in balancing

benefits and harms.

Section 1 

[133] Section 1  of the Charter  states:

The Canadian Charter of Rights and Freedoms  guarantees the

rights and freedoms set out in it subject only to such reasonable limits

prescribed by law as can be demonstrably justified in a free and

democratic society.

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[134] It is against the scope of the particular constitutional right

that the government has the onus of demonstrating that a limit is justified

under s. 1  in accordance with the Oakes test. The purpose of the Oakes

analysis is to balance the benefits of the objective with the harmful effects of

the infringement. The stages of the Oakes test are not watertight

compartments: the principle of proportionality guides the analysis at each

step. This ensures that at every stage, the importance of the objective and

the harm to the right are weighed.

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