The Supreme Court of Canada has taken a step backward on religious freedom by ruling that Alberta Hutterites who object to having their photos taken for their driver's licences are out of luck. For 29 years, the Hutterites had an exemption from being photographed, until Alberta developed a mandatory system featuring facial-recognition technology to prevent identity theft. The risk in exempting 250 Hutterites seems to be marginal and speculative compared with the actual damage to the community's religious freedom and autonomy done by Alberta's mandatory policy.
This is by no means an easy call. Canada is a multicultural, multireligious society. Inevitably, a policy or law or regulation will step on someone's toes, as the Supreme Court majority in the 4-3 ruling, led by Chief Justice Beverley McLachlin, pointed out on Friday. The court wished to leave governments room to make decisions in pursuit of important objectives without being second-guessed by judges. Its deference might, in another case, have been praiseworthy.
Why wasn't it here? Because the government's evidence of a serious threat to the integrity of the licensing system posed by a small, self-contained group of Hutterites with a specially designated licence is hard to understand. (The only known problem involving the religious exemption occurred when a white man asked for it on grounds of native spirituality.) Because there are several other cards - for health, social insurance and birth certificates - that do not always have pictures. And because long before Canada had the Charter of Rights and Freedoms, it allowed conscientious objectors from Doukhobor and Mennonite communities to avoid military service in the First and Second World Wars. There is a tradition of respect for the autonomy of such self-contained, religious rural communities.
It is true, as Chief Justice McLachlin wrote, that no one is compelling the Hutterites to do anything. They do not have to drive. If they wish, they may hire others to drive for them. Driving is not a right but a privilege. But, as Madam Justice Rosalie Abella noted in dissent, self-sufficiency is a central feature of the Hutterite way of life, and the driver's licence, whether a privilege or not, is a key to self-sufficiency.
The court seemed strangely in thrall to Alberta's digital facial-recognition technology, and accepted the need for a perfect, identity-theft-proof system. By contrast, the court did not demand perfect protection from terrorists when it struck down Canada's security-certificate system last year, Mr. Justice Louis LeBel said in a separate dissent. "Important as they were, the objectives of the law were not treated as absolute goals, which had to be realized in their perfect integrity."
Religious freedom is by no means absolute, but Canadians should not necessarily have to bow before the god of technology, either.