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Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37

Facts:

Hutterites live in rural communities and have established complete self-sufficiency. They are isolated, but need to drive on public highways. They adhere to a "second commandment" against graven images - means they cannot take photographs. Exemptions traditionally for ALTA driver’s licenses, but gov changed mind and required photos to be taken. 2 possibilities:
**1. Take photo and put in a sterile/sealed packet to give to police officer
**2. Take photo, not put it on licence but keep in database

It is a rare case of perfect convergence between state goal and religious prohibition; nothing the government can do to mitigate the sin of the photograph.

Issue(s):

Are the Hutterites' 2(a) guarantees unjustifiably infringed?

Ratio:

If a law is fundamentally supposed to apply to everyone (writ large), an accommodation of religious beliefs (individual tailoring) is NOT appropriate under s.1 – the legislation must do this (greater deference due to complexity of law). Effects on the freedom of religion with writ large laws will be considered under final balancing step of s.1.

Analysis:

Arguments:
*ALTA didn’t make a public safety argument for identification (given the decades that police had operated perfectly fine without photo ID)
**Concerned about identity theft, want a face-recognition database
**Ensure harmonization, early adopter

ALTA CA rejected anything not objectively related to highway traffic/safety/regulation
*Can’t assert identity theft concerns in a law dealing with highway safety

SCC:
*Possibly a shift in 2(a) jurisprudence – wrt majority’s analysis of s.1; inconsistent w/ legislative process to show it has allowed for individual accommodation
*Accepted all ALTA states as pressing and substantial; agrees rationally connected; repeatedly refers to law’s complexity
**Suggesting greater deference to the legislature in this area

Minimal impairment: Stick as closely as possible to objective gov is trying to achieve
**Fully complete database as it relates to drivers in ALTA; very comprehensive system
**For the majority, any deviation from photo requirement will not satisfy the objective – there IS no minimally impairing alternative that does not required a photograph
**With a perfect convergence of violation and justification, minimal impairment (proportionality) is the only place to do the analysis
**A law that is fundamentally supposed to apply to everyone (writ large); an accommodation of religious beliefs (individual tailoring) is NOT appropriate under s.1 – the legislation must do this.
***If the whole point of the law is to uniformly apply, the court is of the view that individual tailoring of the law is not appropriate

Overall Proportionality (Ultimate balancing)
**Nominal; Many feel their consideration of the Hutterites was dismissive (retaining drivers)

Dissent
*Part of Hutterites' conviction is being as self-sufficient as possible
*Dislikes “right/privilege” dichotomy in driving

Holding:

4-3 majority upheld the law; surprised most observers, given the direction court took in Anselem.


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