Photo ruling violates Hutterites’ religious rights
It is hard for most of us to see how religious freedom and a driver's licence could be connected. But for certain Hutterian Brethren in Alberta, the absolute requirement to have a digital photo on their driver's licence contravenes the second commandment.
The Hutterian Brethren of Wilson Colony brought a legal challenge to the Alberta law that requires a photo driver's licence on the basis that it violates their religious freedom under the Charter. The Supreme Court of Canada, in a four to three decision, recently upheld the law.
Up until 2003, Alberta allowed exemptions to the requirement for a photo driver's licence. The province changed the regulations to make this an absolute requirement in order to prevent identity theft. Driver's licences are considered "breeder" documents, meaning that they are a primary photo ID that can be used to then obtain other documents.
Not a right
Yet for Hutterites, having a photo taken violates their deeply held religious beliefs. Hutterian Brethren live a communal lifestyle on agricultural colonies, mainly in western Canada. They use modern conveniences such as trucks and farm machines. If they cannot get driver's licences, they will be forced to hire others to drive for them.
Chief Justice Beverley McLachlin wrote the majority judgment. While she strongly affirmed religious freedom, she said that having a driver's licence is a privilege, not a right. Just because the Hutterian Brethren will have the additional costs of hiring drivers does not mean that the practice of their religion is violated.
Chief Justice Rosalie McLachlin seems to be making a distinction between religious practices, such as worship, and violations of conscience. Yet as far back as the very first case on religious freedom, the case involving Big M Drug Mart, the courts have identified both freedom to practice religion and freedom from coercion in relation to religion.
This is clearly a case where Hutterites will either be coerced into violating their beliefs by agreeing to being photographed or be forced to hire others to do their driving for them.
Abella wrote what I would describe as a scathing dissent. She repeatedly quoted Chief Justice McLachlin's own words from previous judgments and from speeches to support her arguments. It seems that Abella was saying that McLachlin was violating her own principles.
Two dissenting judges, Abella and Justice Louis LeBel, strongly affirmed the communal and relational aspects of religion. This is most welcome as religious freedom has been defined in previous court cases as an individual right even though the faithful know that we usually practice our faith together.
LeBel also argued that a driver's licence is not a privilege but a right. Anyone who meets the driving requirements, age and passes the required driving test is given a licence. There is no discretion to deny anyone a licence if the person meets the requirements. Being photographed has never been a requirement for a driver's licence.
LeBel correctly points out that it is not the Hutterites' fault that a driver's licence has become a de facto identity document. They should not be denied a licence to drive a car on that basis.
Impact on believers
This case involves 250 people who live apart from the rest of society. It is easy to think that this bears little on believers in Canada.
But every case involving religious freedom has an impact on all believers.
This decision suggests that laws that require believers to violate their beliefs are valid and believers do not need to be accommodated. That sounds a lot like the marriage commissioners, like Orville Nichols, who recently lost his appeal in Saskatchewan. The Saskatchewan Court of Queen's Bench upheld a human rights tribunal that said that Nichols does not have the right to refuse to marry same-sex couples.
These decisions show that the courts are severely limiting the right of conscientious objection. As society moves farther and farther from its Christian roots, this right becomes increasingly important to believers.
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