The following is extracted from my chapter “Human Dignity Found in Religious Community,” in The Inherence of Human Dignity Vol. 2: Law and Religious Liberty, edited by Barry W. Bussey and Angus J. L. Menuge (Anthem Press, 2021).
The Hutterian Brethren, a Christian communal colony in Alberta, refuse to have their pictures taken because they believe photography violates the second commandment of God not to make as idols ‘any likeness of what is in heaven above or on the earth beneath’ (Exodus 20:4, NASB). From 1974 to 2003, the Alberta government allowed this group an exemption from the general requirement for photographs on a driver’s licence. However, that policy changed to require all provincial drivers to be photographed and images stored in a facial recognition database. Only 453 Albertans held non-photo licences at the time of the change – a mere 0.02% of the total number of licences issued. Of the 453, 250 belonged to the Hutterian Brethren community.
On judicial review, both lower Alberta courts supported the Hutterian Brethren’s constitutional freedom, holding the government’s limit on that freedom was unjustified. The courts rejected the Alberta government’s accommodation proposals as they still required a photograph. The Hutterites proposed that they carry a licence without a photograph but that it be marked stating that it could not be used for identification purposes. The Alberta government refused.
At the SCC, the Court was sharply divided, but the majority accepted the government’s limit on religious freedom as being justified. Former Chief Justice McLachlin, writing for the four-member majority, held that there was an infringement of religious freedom. However, McLachlin was concerned that freedom of religion ‘presents a particular challenge’ because ‘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’ and that ‘giving effect to each of their religious claims could seriously undermine the universality of many regulatory programs’ (para 36, italics added). Such reasoning could allow any dump truck to run through a picket fence. It appears to have been the first time the Court favoured government policy in complex regulatory regimes at the expense of the religious freedom. At first blush, one might understand the reluctance of the Court to allow a significant damper on the government’s ability to carry out the work of governing in the modern context – that is, an increasingly multicultural and diverse society. However, in this case the Alberta government gave the exemption for 29 years with no evidence of any harm or ‘overall detriment of the community’ (para 36) whatsoever. McLachlin’s reasoning is hardly convincing.
McLachlin’s impoverished view of religious communities is evidenced by her acceptance of the Alberta government’s argument that the photograph was required to combat identity theft – with no mention of the 700,000-plus Albertans without any driver’s licence, who would therefore not be in the facial recognition database. Instead, the concern centred on the 250 Hutterian Brethren who had strong, deeply held beliefs against their photographs being taken. The reasoning was particularly odd given that the primary purpose for the photograph on a driver’s licence has nothing to do with identity theft but rather with driver identification. McLachlin held the government’s concern was of ‘pressing and substantial importance’ to justify the limit on their religious freedom. The harmful effects of the limit were proportional in her view because Alberta’s system needed to be in line with that of other provinces. Moreover, the Hutterian Brethren matters were simply the result of ‘a multicultural, multireligious society where the duty of state authorities to legislate for the general good inevitably produces conflicts with individual beliefs’ (para 90, italics added). The fact that McLachlin repeatedly characterized the communal convictions of the Hutterites as a matter of ‘individual beliefs’ is particularly telling, especially since the Hutterites themselves argued for a much more complex notion of religious faith in community. They explained 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”’ (para 8).
Unfortunately, the SCC failed to properly understand and ascertain the role of religious community and the individual’s commitment to community faith. It shirked its responsibility in understanding what the community believes and the extent of commitment the members have to maintaining that belief and practice. Without that knowledge, the law is bound to minimize the effect of its decision on the claimant.
For example, the SCC was ready to accept the Alberta government’s attempt at accommodation which would have involved keeping the photo requirement but ‘eliminating or alleviating the need for [the Hutterites] to carry photos’ (para 57). In other words, let the picture be taken but don’t carry it. The SCC majority thought that was a reasonable compromise to reduce the impact on the members’ s.2(a) Charter rights. The Court neither understood nor appreciated the Hutterites’ religiously motivated aversion to photographs. Carrying photos was troubling, but having one’s picture taken in the first place was the real problem, since it created an idol. The SCC’s lack of appreciation was part of a systemic failure to consider the substance and extent of the commitment of the Hutterites to their religious belief and practice. The entire legal analysis is grossly impaired when there is a failure to understand the religious community.[1] Unless this lack of interest is corrected there is little chance for meaningful dialogue between the normative commitments of law and religion. It cannot happen because the law has a blind spot. The law does not recognize its own weakness in favouring the state over religious communities in such situations.
McLachlin stated, ‘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’ (para 35).’ In the determination of minimal impairment she reiterated, ‘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’ (para 51). Yet, the 29 years experience of accommodating this religious community was evidence enough that the government needed no deference.
McLachlin’s admission of deference is remarkable because it reveals a willingness to understand the government but not so the religious claimant. The court took pains to determine the what of the government’s position and even the extent of commitment the government must have to regulate, in this case, photographs for the driver’s licence. Unfortunately, the same regard was not given to the Hutterites. The failure of the law to properly understand the religious beliefs and commitment of the Hutterian Brethren led to an inability to find a resolution that would have met the purpose of the state objective and shown respect for the religious practice.
At least one alternative readily comes to mind that would have solved the problem. The Hutterites suggested their non-photo bearing licence be clearly marked as ineligible for identification. The Court refused that suggestion because of identity theft. However, an appropriate resolution would be fingerprinting the licensee so that both name and identifying characteristic (fingerprint) would be linked without the possibility of replication.
The Court’s review of the balance between the salutary and deleterious effects of the government position was ‘whether the limit leaves the adherent with a meaningful choice to follow his or her religious beliefs and practices’ (para 88). To answer this enquiry the Court must know the seriousness of the limit upon the claimant. Though the Court had no knowledge of the extent of commitment to that belief it ruled that the community members had a choice to follow their religious beliefs.
The Court admitted that ‘In judging the seriousness of the limit in a particular case, the perspective of the religious or conscientious claimant is important’ (para 90). Yet it was quick to point out that the ‘bare assertion’ of the claimant that the limit curtails his practise ‘does not, without more, establish the seriousness of the limit […] We must go further to evaluate the degree to which the limit actually impacts on the adherent’ (para 90).
The fundamental flaw in this approach is that the Court made its determination based on what it perceived as the actual impact on the community, rather than having a clear, unequivocal understanding of the Hutterite position. For the Court it was a matter of ensuring that the Hutterites had a ‘meaningful choice’ to practise their faith – that choice was to pay extra for transportation to and from their communal compound. Said the Court, it was ‘a cost on those who choose not to have their photos taken’ (para 96, emphasis added).
However, for the Hutterites, the issue is not a choice, it is an obligation of the conscience that goes to the core of who they are, not simply as individuals, but as a community with a deep sense of historical continuity and social unity. The failure of the law to take into account the what of the claimant’s belief and practices, and the extent of commitment to that belief and practice, could not be more evident.
For the foreseeable future, the young children of the Hutterite community will be left to wonder why their parents cannot drive them upon the free-flowing highways of this country. The answer that the Supreme Court would like them to give is that as parents they chose not to have their photographs taken. Of course, those parents will say nothing of the sort. Rather, their consciences as informed by their reading and understanding of the Second Commandment dictate that they must not – for fear of eternal consequences – allow their likeness to be produced in any form. They will share to the coming generation that they are unwelcome to participate in one of Canadian society’s most ubiquitous privileges – to drive. All because the law’s sympathy does not extend to their religious obligation to refuse photographs. But the concern goes much deeper than driving. For the Hutterites, the dilemma involves their very ability to function as an agrarian community with deeply ingrained customs and shared responsibilities; if one member cannot fulfill his or her role (like selling eggs and fresh produce at the local farmer’s market) this does not just interfere with that member’s rights, it affects the entire commune’s ability to operate, teach, worship, and sustain themselves both physically and spiritually. There is also an element of unity with the past as well as the present community, which calls to mind Bonhoeffer’s description – ‘It wills historical continuity as well as the social realization of its will’. Thus, to abandon a particular belief is also to sever this deep and powerfully maintained bond with traditions that have defined the Hutterites for generations.[2]
McLachlin rejected the Hutterites’ claim that to deny them their licence ‘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’ was demeaning and infringed their human dignity (para 107). McLachlin saw it differently. Governments issue a licence to those who meet the statutory requirements (in this case a photograph) and not based on religious belief.
She went further and said that even if there was a distinction on religion, the government’s decision “arises not from any demeaning stereotype but from a neutral and rationally defensible policy choice’ (para 108). What is missing here is McLachlin’s appreciation that even neutral and rational government policies may be discriminatory. She rejected the comparison to the Andrews v. Law Society of British Columbia case (1989) where the SCC held that the Canadian citizenship requirement for membership in the Law Society of British Columbia violated the Charter and was unreasonable. Interestingly, it was Justice McLachlin’s BC Court of Appeal (BCCA) decision (1986) that was before the SCC in Andrews. She stated then that the first question under a s. 15 challenge is:
whether the impugned distinction is reasonable or fair, having regard to the purposes and aims and its effect on persons adversely affected. I include the word ‘fair’ as well as ‘reasonable’ to emphasize that the test is not one of pure rationality but one connoting the treatment of persons in ways which are not unduly prejudicial to them (p. 609-10, quoted in Andrews 1989).
She found none of the Law Society’s arguments convincing and felt the citizenship requirement was ‘clearly prejudicial’, concluding that ‘the requirement of citizenship for admission to the practice of law is unreasonable or unfair’ (p. 616, quoted in Andrews 1989).
If we weigh these two cases on the scales of justice, it seems rather counterintuitive to conclude that discrimination on the basis of citizenship is an unacceptable limit; but, a photograph that offends religious conscience is an acceptable limit. More than that, in the Hutterian Brethren case, Chief Justice McLachlin went so far as to say the ‘Colony members’ claim is to the unfettered practice of their religion, not to be free from religious discrimination’ (2009, para 108). From my reading of the case, there was nothing to suggest that the Hutterite colony was saying any such thing. They simply wanted the government to continue recognizing what it had permitted for 29 years. Moreover, in Andrews, there was no revoking of a previous accommodation as there was in the Hutterite case.
While it is true, in the very strict sense, that the Hutterites will be able to go on in their religious practice, but with the increased cost of hiring transportation, the fact remains they have to face a terrible burden because of the law’s inability to understand their plight. Their vulnerability will be seen in the increased personal danger or delays in getting transportation to medical facilities for those in need; the increased burden to maintain a livelihood in getting goods to market; and the reliance upon outside sources for the delivery of supplies; in all likelihood, it will be reasonable to assume they will face further ridicule because of their plight in the community at large.
Justice Abella, in dissent, emphasized the communal aspect of religious freedom (para 130-133). She quoted from former Justice Bertha Wilson in Edwards Books (1986), who stated:
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, p. 808-9)
Abella also highlighted the understanding of the European Court of Human Rights[3] in this regard:
[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)
Justice LeBel also took up the communal aspect in his reasons:
Religion is about religious beliefs, but also about religious relationships. […] [This appeal] raises issues about belief, but also about the maintenance of communities of faith. We are discussing the fate […] of a community that shares a common faith and a way of life that is viewed by its members as a way of living that faith and of passing it on to future generations (182).
Justices Abella and LeBel’s reasons, though in dissent, were the first indication in a long while that the SCC had turned its mind, in a serious way, to the communal nature of religious freedom. However, to date the SCC has yet to clearly articulate the law in this respect.
The underlying assumption throughout the Hutterian Brethren case is that the deference given to the government is reasonable because the matter deals with ‘a complex regulatory response to a social problem’(para 37) where the limit is the inability to access conditional benefits or privileges of the state. If the limit were penal, ‘threatening the liberty of the accused’ (ibid), then the law would not provide the same deference. Thus, it becomes a question of degree as to the nature of the limit. If the limit has to do with public privilege, as the issuing of a driver’s licence, then the government is given deference; if, however, it has to do with personal liberty, then there is little deference.
This position denies the basic equality of rights protection under the Charter. To give deference to the state is to favour the state up front. The decision gave an unfair advantage to the state. The claimant is by definition the weaker party in the litigation – lack of resource capacity to commit to a long term fight, and lack of public support or influence has already put the claimant in a subservient position to counter the designs of the state. On the face of it the Charter promises that any limits to guaranteed rights will have to be demonstrably justified in a free and democratic society. A tipping of the scales in favour of the state results in a situation where the justification will be less than robust.
Further, why in principle should there be a different standard for a regulatory limit involving a public benefit, service, or privilege, as opposed to a limit involving personal liberty? Both are actions of the state, which has virtually unlimited power and ability to enforce its will upon the individual. Both limit a guaranteed right. What exempts the state from having to put forward an energetic justification of its limit in the one but not the other? ‘Nothing’ is the appropriate response.
It would be more just if the deference toward the state came not from the regulatory vs. penal axis of the limit but rather from the optional vs. obligatory axis of the religious belief and practice. Thus, if a religious belief were optional then it would be reasonable for the state to be given deference in its limit. If, however, the religious belief were obligatory then it should not matter whether the limit were regulatory or penal – as both, in the eyes of the claimant would amount to the same.
This approach may prove useful because (1) the state is without parallel in capacity to put forth its position in whatever situation it finds itself; (2) the onus on the state to justify its limit would not have to be so robust for matters that have lower religious significance to the claimant.[4]
The Hutterian Brethren decision highlights the fact that Canadian jurisprudence has not yet articulated the collective aspect of religious freedom. It is not because the law has not recognized that right, but because, until recently, there has been no sustained attack upon that communal right to warrant such analysis. It was among those rights ‘taken for granted to be the unchallengeable rights of Canadians’ (Boucher v R, 1951 at 285 per Rand J). However, that has changed. This case highlighted government actors’ willingness to challenge communal religious rights for political purposes. The pre-supposition appears to be that the secular state interest is supreme and must prevail. Therefore, mediating institutions such as religious communities are a nuisance when they refuse to comply. This decision prepared the way for further erosion in religious freedom rights in subsequent cases, ultimately leading to the disastrous decisions in the Trinity Western University law school case, which marked a new low in Canadian jurisprudence on religious freedom.
[1] For more on the incongruous, reductionist decisions that may result when courts fail to understand the complexities of religion, see Raymond Chui (2020) ‘Religion and Public Benefit’ in The Status of Religion and the Public Benefit in Charity Law, ed. Barry W. Bussey (London: Anthem Press) p. 23-36. Implicit in Chui’s argument is the harm done to human dignity if the law disregards the complexities of religious belief and behaviour. He notes that ‘any important life experience must engage with what is real and true, and the religious aspect of life is receptive to such questions. Moreover, since the quest to find such truth is impossible to do alone, by its nature the search for the sacred requires observance in a communal context.’ He concludes that without a full, complete vision of religion, ‘we run the risk of doing an injustice to the very essence of what it means for humanity to thrive in community’ (35). This also calls to mind the LGBTQ argument that decisions are invalid unless they incorporate the voices of the queer community, e.g. ‘the extent to which judicial decisions affirm and defend the equality of queer people’s rights is determined by the extent to which they understand and express those rights as articulated by queer people. TWU litigation to date has shown that when queer voices do not figure prominently in the litigation process (via interveners and expert witnesses), and queer voices do not figure prominently in the written decisions (to illustrate judges’ consideration of them), it affects the litigation outcome: queer people’s rights tend to be mischaracterized, their experiences misunderstood, and their ongoing struggle for equality stunted’ (Feinstein and Hamill 2017, 158-159).
[2] I want to acknowledge Amy Ross for this insight.
[3] In the case Metropolitan Church of Bessarabia and Others v. Moldova, No. 45701/99, ECHR 2001-XII.
[4] One has to recognize that given the nature of litigation there may be few instances where a claimant pursues the protection of a religious practice that is considered optional. But there are some – consider that for many religious groups it may not be obligatory to have a house of worship, yet if a government regulation somehow had the effect of preventing a congregation from having a building in which to worship, they would fight to maintain that right. It is suggested that in that case, where having a building is not obligatory for the claimant, the onus on the government to justify its limit would not be as high. It is perhaps intuitive that the majority of claimants would go through the tribulation of Charter litigation only if the religious practice were mandatory.