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The Failure of Proportionality Tests to Protect Christian Minorities in Western Democracies: AlbertavHutterian Brethren of Wilson Colony

Published online by Cambridge University Press:  30 April 2010

Margaret H. Ogilvie
Margaret H. Ogilvie
Affiliation:
Chancellor's Professor and Professor of Law, Carleton University, Ottawa Barrister, Ontario and Nova Scotia
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Extract

In 1974, the province of Alberta began to issue drivers' licences with photographs of the licence holder but exempted persons who objected to having their photographs taken for religious reasons from the photograph requirement. At that time the Muslim population of Canada was tiny and it was an unspoken assumption that the exemption was created for the Hutterian Brethren who have long had a number of colonies throughout the Prairies. In 2003, the province made photographs mandatory for all licence holders and created a provincial facial recognition data bank for the photographs. The Wilson colony of Hutterites objected to having their photographs taken on the ground that photographs constitute an infringement of the second commandment concerning idols (Exodus 20.4) as they understand it. Without drivers' licences, the colony is unable to make off colony trips to take their produce to market, or their ill members for medical treatment, or to be volunteer firefighters in their surrounding area, that is, the absence of licensed drivers makes it much more difficult for them to sustain their largely self-sufficient agrarian communal way of life which is also a matter of belief (Acts 2.44) without the expense of hiring taxis or outside drivers on an as-needed basis. The province offered a compromise that Hutterite drivers be issued with photograph-free licences but that photographs would still be required for the data base. The colony suggested a photograph-free licence bearing the words, ‘Not to be used for identification purposes’. Neither side accepted the other's proposal and the colony initiated litigation on the ground that the freedom of religion of the Hutterites pursuant to section 2(a) of the Canadian Charter of Rights and Freedoms (the ‘Charter’) had been infringed. The colony succeeded at trial and by a 2–1 decision in the Alberta Court of Appeal but lost in a 4–3 decision in the Supreme Court of Canada because in the view of the majority, written by McLachlin CJC, the photograph requirement was a ‘reasonable limit’ on religious freedom and ‘demonstrably justifiable in a free and democratic society’ under section 1 of the Charter.

Type
Comment
Information
Ecclesiastical Law Journal , Volume 12 , Issue 2 , May 2010 , pp. 208 - 214
Copyright
Copyright © Ecclesiastical Law Society 2010

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References

1 RSC 1985, App II, No 44.

2 Alberta v Hutterian Brethren of Wilson Colony (2009) SCC 37.

3 For recent histories of the Hutterite experience in Canada see: Janzen, W, Limits on Liberty. The Experience of Mennonite, Hutterite and Doukhobor Communities in Canada (Toronto: University of Toronto Press, 1990)Google Scholar and Esau, AJ, The Courts and the Colonies. The Litigation of Hutterite Church Disputes (Vancouver, UBC Press, 2004)Google Scholar.

4 Esau, ibid, p 6–7.

5 Janzen, supra, n 3, ch 4.

6 Supra, n 2, paras 32–34.

7 Syndicat Northcrest v Amselem (2004) 241 DLR (4th) 1 (SCC).

8 R (SB) v Governors of Denbigh High School [2007] 1 AC 100 (HL).

9 R v Oakes [1986] 1 SCR 103.

10 Human Rights Act 1998, Sch I, Pt I.

11 Supra, n 8.

12 [2005] 2 WLR 590 (HL).

13 For a detailed comparative analysis of recent Supreme Court and House of Lords cases see: MH Ogilvie, ‘Freedom of Religion in Canada and the United Kingdom: A Hopeful Beginning for a Fruitful Dialogue?’(2009) 48 Supreme Court Law Review (2d) 409.

14 As this was being written, a Muslim woman who alleges she is a Canadian citizen filed a $2.5 million law suit against the federal government on the ground that it erred in denying her re-entry to Canada after an overseas consular official concluded from her passport photograph that she was not the woman in that photograph. She was wearing a hijab and comparative photographs in the Canadian press suggest that the consular official's decision is not without some merit: National Post (Wednesday 20 September 2009), p 1.