A split top-court judgment denying Hutterites an exemption from mandatory driver's licence photos is a setback for religious rights, critics say.
And one of the most surprisingly forceful voices against the decision Friday came from the fractured court itself: dissenting Madam Justice Rosalie Abella.
The Supreme Court of Canada ruled 4-3 to uphold provincial rules requiring a digital photo for all new licences.
Headshots have been entered in an Alberta database since 2003 to help the government track existing drivers and prevent fraud.
"The goal of setting up a system that minimizes the risk of identity theft associated with driver's licences is a pressing and important public goal," Chief Justice Beverley McLachlin wrote for the majority.
"The universal photo requirement is connected to this goal and does not limit freedom [of]religion more than required to achieve it."
The Hutterian Brethren are a Christian sect that believes being photographed breaks the second of the Ten Commandments, which forbids idolatry.
They had been allowed to carry special permits since 1974 when the government introduced licences with photos.
In 2003, Alberta allowed permits without photos, but said a picture must still be taken for the database. The Hutterites refused.
Those who won't comply with the rules can always hire drivers, Chief Justice McLachlin said of the farming Wilson Colony near Lethbridge, Alta., that argued its way of life is threatened. The Chief Justice jettisoned that assertion.
"Many businesses and individuals rely on hired persons and commercial transport for their needs, either because they cannot or choose not to drive."
She was joined in the majority by Mr. Justice Ian Binnie, Madam Justice Marie Deschamps and Mr. Justice Marshall Rothstein.
Lawyers for the colony said the province presented no evidence to show any related security risk.
Federal lawyers warned that allowing an exemption for Hutterites could increase the risk of forgery for a document also used for identity purposes. They also raised the prospect of a flood of requests for religious-based exemptions.
Judge Abella attacked Alberta's case in a passionate dissent, the principles of which Mr. Justice Louis LeBel and Mr. Justice Morris Fish supported.
In her view, the security benefit of mandatory photos is slight compared with the impact on the Hutterites. She noted about 700,000 Albertans who don't have driver's licences aren't in the security database either.
"There is no evidence that in the context of several hundred thousand unphotographed Albertans, the photos of approximately 250 Hutterites will have any discernible impact on the province's ability to reduce identity theft," she wrote.
"The mandatory photo requirement is a form of indirect coercion that places the Wilson Colony members in the untenable position of having to choose between compliance with their religious beliefs or giving up the self-sufficiency of their community, a community that has historically preserved its religious autonomy through its communal independence."
Judge Abella went further, saying the majority's approach let the Alberta government off the hook without adequately proving religious rights were justifiably infringed. The result "imperils and contradicts human rights jurisprudence."
Chief Justice McLachlin countered, "with respect," that Judge Abella wrongly overstates the purpose of the photo requirement.
"It is not the broad goal of eliminating all identity theft, but the more modest goal of maintaining the integrity" of the driver's licensing system, she wrote. Any infringement on religious freedom is therefore necessary and justifiable, she concludes.
Yesterday's judgment overturns Hutterite victories before both the Alberta Court of Queen's Bench, which struck down the photo rules as unconstitutional, and a majority of the Alberta Court of Appeal, which agreed.
Nathalie Des Rosiers, lawyer for the Canadian Civil Liberties Association, called the judgment "a setback for religious beliefs in Canada."
"Essentially, the majority opinion gives a lot of deference to the government in designing administrative systems - and that's worrisome. Traditionally when freedoms were at stake, we were asking big questions of government."
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