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Hutterites lose battle over photos |
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Written by Pamela Roth
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Friday, July 24 2009, 10:35 PM |
Members of the Wilson Hutterite Colony are shocked and disappointed following a decision by the Supreme Court of Canada that all driver’s licences in Alberta require photo ID.
After hearing the appeal more than nine months ago, the Supreme Court of Canada delivered the judgment on Friday morning with a 4-3 decision to uphold Alberta rules requiring a digital photo for all new licences.
Some Hutterite sects, however, believe the Bible’s Second Commandment, forbidding idolatry, which prohibits them from willingly having their photo taken.
Since the colony can’t appeal the decision, Lethbridge lawyer Greg Senda, who represents the colony, said it’s up to his clients to determine what their response is going to be. Whatever the response is, however, it will have to be made quickly since the province views their current licences with no photos as not valid.
“This was not a frivolous lawsuit. They sincerely believe the second commandment prohibits them from willingly allowing their picture to be taken and now they are forced with a situation of what they are going to do,” said Senda, who noted one judge suggested the colony could hire drivers. “It’s not like a normal situation where I, as a lawyer, can make recommendations on my clients based on the law because this is longer based on the law. This is based on their religious beliefs, so it’s totally up to them to determine what the response is going to be.”
The history of the case has turned into a long and lengthy one. For nearly 30 years, Hutterian Brethren were issued licences without photos, but in May 2003 the Alberta government passed legislation requiring photo identification for all drivers to be placed in the province’s facial recognition data bank. By 2003, Alberta had approved 453 special licences without photos — 56 per cent of them were held by Hutterites.
In response, the Wilson Hutterite Colony, just south of Coaldale, mounted a constitutional challenge to the new regime and the Alberta Court of Queen’s Bench agreed the law violated the freedom of religion guaranteed under the Charter of Rights.
The provincial court of appeal upheld the ruling in a split decision last May.
As a result, the Alberta government took the case to the Supreme Court of Canada in a final bid to overturn the exemption, arguing advances in technology designed to enhance the security of driver’s licences and help prevent fraud, identity theft and terrorism, have made it necessary for photos to be used on licences. The government further contended to many people would take advantage of a religious exception to the photo ID rule.
But, according to Senda, this would not have been the case if the appeal was granted.
“There would be very little effect by granting an exemption,” said Senda. “Some words were used that it was hypothetical or speculative harm. In their (justices) view, there would have been no kettle of fish opened. This would have been essentially a non-event.”
The ruling will effect approximately 37 members of the Wilson Hutterite Colony, which have since split into various regions. Although the colony attempts to be self-sufficient, some members need driver’s licences so they can travel outside the colony to do business and attend to the needs of members.
Hutterites account for less than one per cent of Alberta licence holders and are the only religious group ever granted the exemption.
Senda argued the province presented no evidence to show the practice somehow constitutes a security threat. That argument was echoed in a portion of the written judgement from Justice Rosalie Abella who viewed the security benefit of mandatory photos is slight compared to the impact on a traditional community that was exempted for almost 30 years.
She noted more than 700,000 Albertans have no driver’s licence and are therefore not in the facial recognition database either.
“The harm to the constitutional rights of the Hutterites, in the absence of an exemption, is dramatic. The serious harm caused by the infringing measure weighs far more heavily on the scales than the benefits the province gains from its imposition on the Hutterites,” she wrote. “This makes the mandatory photo requirement 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.”
Chief Justice Beverly McLaughlin wrote for the majority: “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” and that “the universal photo requirement is connected to this goal and does not limit freedom (of) religion more than required to achieve it.”
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