Freedom of Religion - Interesting Case Proceeding to Highest Court

[StoneMtn]

CHARTER: FREEDOM OF RELIGION, FREEDOM TO DRIVE

Alberta began issuing drivers’ licences with photos in 1974. Until 2003, however, an exception to the photo requirement was made available under the Alberta Operator Licensing and Vehicle Control Regulation, to people who objected on religious grounds. Such individuals were able to seek a non-photo licence called a Condition Code G licence. In 2003, the Alberta government passed the Operator Licensing and Vehicle Control Amendment Regulation, amending the original Regulation , thus implementing a mandatory photo requirement for all drivers’ licences. At the time of the change, there were 453 Condition Code G licences in Alberta. Fifty-six per cent of these licences were held by the Respondents and members of other Hutterian Brethren colonies. The Respondents sincerely believe that the Second Commandment prohibits them from having their photograph willingly taken. A number of the members have Condition Code G licences; however, with the amended Regulation in effect, the individuals currently holding these licences would be required to have their photograph taken upon renewal of their licences, resulting in a breach of their religious beliefs. The Respondents challenged the new Regulation on the grounds that it breached their rights under the Canadian Charter of Rights and Freedoms. The Court of Queen’s Bench held that the amended Regulation infringed the Respondents Charter rights and could not be saved by section 1 of the Charter. The C.A., with Slatter J. dissenting, affirmed the trial decision.

Her Majesty the Queen in Right of the Province of Alberta v. Hutterian Brethren of Wilson Colony and Hutterian Brethren Church of Wilson Colony (Alta. C.A., May 17, 2007)(32186) "The application for an extension of time and the application for leave to appeal...are granted."

[bradm]

I'm not entirely up on constitutional law, but I'm not sure I see why this regulation infringes on someone's religious rights. Getting a driver's license is not a right (at least, as far as I know; is driving even mentioned in the Charter?), it's a privilege, and the state has (IMHO) reasonable grounds (i.e., public safety) to demand proof that a particular person behind the wheel has met the minimum standard for driving ability, with the proof not only including that a person possesses a certificate, but proof that the certificate was issued to the person holding it, and the only way I can think of to do that effectively is with a picture of a person's face. (Could fingerprints be used? Would Brethren members object to having their fingerprints taken?)

In other words, if you don't want your picture taken, fine, but you won't be able to get a license. The Regulation was not (as far as I know) put in place to limit the ability of members of a particular religion to get a license, it had compeltely separate and reasonable justification. It also doesn't limit a person's freedom to practise a particular religion.

I wonder: IIRC, the Charter also includes wording that says discrimination based on age isn't allowed. Would this mean that a 15-year-old could challenge the lower (16 years) age limit for getting a license?

Aloha,

Brad

[StoneMtn]

Well, just to make sure you know what stage it's at right now, at the moment the decision stands that these people do not have to have photos. That was decided by one Court, and upheld by another.

Now, it's up to the Supreme Court of Canada to decide the answer.

Brad makes good points. I'm interested in others' views.

[jonyak]

so how is getting there picture taken against their religion but driving around in a car, that destroys mother nature, not?

doesn't make much sense to me but oh well.

[ike]

I'd be surprised if the supreme court upholds the decision.

If there was a reason that the brethren had to drive it might make sense to me, but it seems they are choosing to drive so where's the breach of rights?

[hamilton]

I wholeheartedly agree with Brad.

[allison]

I'd be appalled if the Supreme Court DID NOT hold up the decision.

I would doubt that the government of Alberta argued that they weren't infringing the right to religion..however the onus would be upon them to prove that it was justified because of the objective of the law(to protect the public by ensuring drivers were competent, etc)and that that enforcement was minimized to the point of the"undue hardship"test (usually used in Human Rights cases) to accomodate the groups religious beliefs.

I think proving the latter would be hard with such a small segment of the population.

I loved constitutional law.

[StoneMtn]

I also have to wonder (and I have not looked at the case, so I don't know what was argued) whether it is found to be relevant that this is occurring in Alberta. It gets very cold there, and it could be argued that denying a person the right to drive, on the basis that they had to do something contrary to their religion to do it, is a denial of their basic human right to enjoy the ability to travel from their garage to their destination without being subjected to deathly cold temperatures.

Perhaps if the issue arose in Victoria it would be a different answer than in Alberta?