Alberta, Canada - In a 4-3 decision the Supreme Court of Canada (SCC) recently upheld the Alberta law requiring mandatory photos on driver's licences.
The law had been challenged by two groups of Hutterian Brethren in Alberta. Hutterites are a small Christian sect and some believe that 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 -- prevents them from voluntarily having their photographs taken.
Alberta started issuing licences with photographs in 1973, but it allowed an exception for those who objected on religious grounds.
The exemption was removed in 2003 -- ostensibly so Alberta could maintain a central electronic database in an effort to reduce identity theft -- thereby leading to this case.
I doubt that the database is or will be effective and there's no evidence that exempting Hutterites would compromise the effectiveness of the database.
The database is far from complete with about 700,000 Albertans not holding drivers' licences.
FAIRNESS
But this isn't about fairness or determining which side is correct. Governments are entitled to make mistakes and even act foolishly provided they do so lawfully, and that brings us to the Charter of Rights and Freedoms.
The charter guarantees everyone "freedom of conscience and religion." This right is not absolute. It is subject to laws that are "demonstrably justified in a free and democratic society."
The SCC proceeded on the assumption that any law forcing a Hutterite to violate his beliefs in order to obtain a driver's licence constitutes a violation of the right to freedom of religion.
This assumes that as a practical matter Hutterites are compelled to obtain driver's licences, which is not the case.
They can drive on communal roads without a licence and hire others to drive them around on the occasions they need to travel on provincial roads.
Further, I don't understand how the requirement to be photographed impacts on the religious freedom of the Hutterites.
The photograph law doesn't violate their right to worship their religion as they wish, nor does it force anyone to act in a manner contrary to their beliefs.
So does this law really violate any Hutterian's freedom of religion?
In order to find the law valid, the SCC concluded the law is "demonstrably justified in a free and democratic society." To reach this conclusion the SCC examined the impact of the law on freedom of religion as well as the overall effects of the law. The court examined "the harm done to the claimants' religious freedom against the benefits associated with the universal photo requirement for driver's licences."
It asked whether the limit on the right is "proportionate in effect to the public benefit conferred by the limit."
Even though the SCC's decision only relates to Hutterites, there's no reason why their reasoning, and therefore their decision, would not apply to other religions.
The compulsory photo requirement should be able to withstand a challenge by other groups claiming a different religious violation.
Muslim women with their heads fully covered would not be entitled to insist on an exemption any more than a Hutterite could.
As the majority decision states, "(b)y 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."
It was a controversial and a close decision but the SCC reached the right result.