In 1974, the province of Alberta began to issue drivers' licences with photographs of the licence holder but exempted persons who objected to having their photographs taken for religious reasons from the photograph requirement. At that time the Muslim population of Canada was tiny and it was an unspoken assumption that the exemption was created for the Hutterian Brethren who have long had a number of colonies throughout the Prairies. In 2003, the province made photographs mandatory for all licence holders and created a provincial facial recognition data bank for the photographs. The Wilson colony of Hutterites objected to having their photographs taken on the ground that photographs constitute an infringement of the second commandment concerning idols (Exodus 20.4) as they understand it. Without drivers' licences, the colony is unable to make off colony trips to take their produce to market, or their ill members for medical treatment, or to be volunteer firefighters in their surrounding area, that is, the absence of licensed drivers makes it much more difficult for them to sustain their largely self-sufficient agrarian communal way of life which is also a matter of belief (Acts 2.44) without the expense of hiring taxis or outside drivers on an as-needed basis. The province offered a compromise that Hutterite drivers be issued with photograph-free licences but that photographs would still be required for the data base. The colony suggested a photograph-free licence bearing the words, ‘Not to be used for identification purposes’. Neither side accepted the other's proposal and the colony initiated litigation on the ground that the freedom of religion of the Hutterites pursuant to section 2(a) of the Canadian Charter of Rights and Freedoms (the ‘Charter’)Footnote ¹ had been infringed.Footnote ² The colony succeeded at trial and by a 2–1 decision in the Alberta Court of Appeal but lost in a 4–3 decision in the Supreme Court of Canada because in the view of the majority, written by McLachlin CJC, the photograph requirement was a ‘reasonable limit’ on religious freedom and ‘demonstrably justifiable in a free and democratic society’ under section 1 of the Charter.

This was not the first time a Hutterite colony has been to the Supreme Court of Canada; for all their shunning of their host Canadian society, Hutterites have been determined litigants since their first immigration to Canada in 1918 to protect their communal way of life as far as possible.Footnote ³ Today there are approximately 30,000 Hutterites living on about 350 colonies in Alberta, Saskatchewan and Manitoba, and another approximately 10,000 living in North and South Dakota, Montana and Minnesota.Footnote ⁴ They have enjoyed considerable economic success in North America and are renowned for their agricultural acumen which they have also patented and licensed to other agricultural entities and farmers. Indeed, jealousy on the part of other farmers with whom they compete has occasionally erupted into provincial legislation placing limits on their land holdings which has been struck down or repealed in the past.Footnote ⁵ They live communally only and the not-for-profit corporation model for holding property is entirely suited to their communal beliefs. They pay taxes, use provincial health services, follow provincial school curriculums in their schools and offer some voluntary services to their neighbours, but otherwise live introspectively within their colonies, their ‘arks of salvation’ suspended between earth and heaven.

The number of Hutterite drivers in Alberta affected by the legislation was estimated to be about 250, in a province with a population base of about two million people of whom about 700,000 over the age of 16, at which age drivers' licences may be issued, do not possess a driver's licence and therefore are not photographed for the provincial data bank. Since Hutterites typically do not travel much beyond their own colonies, and largely to visit other colonies, they live geographically confined lives and are often recognisable by their distinctive clothing. Thus, at first glance, the province's argument that photographs are necessary to the integrity of the data base and as a means of preventing identity theft is difficult to entertain seriously. If ever there was a case for enforcing the section 2(a) protection for freedom of religion of a tiny religious minority against an attempt by a state to photograph as many residents as possible, Wilson Colony must be that case. But it was not in the view of the majority of the Supreme Court of Canada.

The justification for the decision assumed that the complainants sincerely believed that their beliefs about their way of life and the second commandment had a nexus with religion and that the legislation would interfere with that sincere belief in a manner that was not trivial or insubstantial, although McLachlin CJC noted that the lower courts had made no express finding of a section 2(a) infringement.Footnote ⁶ An assumption of sincerity is now established in both CanadaFootnote ⁷ and the United KingdomFootnote ⁸ in these types of cases as a prior condition for a religious freedom claim. She then justified the majority decision on the ground that the photograph requirement satisfied the qualifying provision of section 1 in the Charter which permits infringement of fundamental freedoms provided the limit is a ‘reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society’. In her view the purpose of the system was to minimise the risk of identity theft associated with driver's licences; the photograph requirement was connected to that goal and did not limit freedom of religion more than required to achieve the goal. Any negative impact on religious freedom did not outweigh the benefits of the requirement. McLachlin CJC assumed that the goal of the requirement was to maximise the integrity of the system as a method of personal identification rather than as a means of identifying those permitted to drive in Alberta which does not necessarily involve a photograph only a licence card.

To conclude that the photograph requirement was a permissible section 2(a) infringement, the majority relied on the so-called ‘Oakes test’Footnote ⁹ which an earlier court had devised to flesh out section 1 in its application to Charter cases and which is comprised of several parts: (i) the limit must be prescribed by law, either by legislation or regulation; (ii) the purpose of the limit must be pressing and substantial; and (iii) the means for furthering the goal of the legislation must be proportional to the goal, that is, it must (a) be rationally connected to the purpose, (b) minimally impair the right alleged and (c) be proportionate in its effect. This is clearly a lawyer's test combining all those elements of ambiguity, reasonableness and discretion favoured by courts wishing to have maximum legal room for making policy decisions. It can lead to quite different judicial outcomes as demonstrated by comparing the majority and minority decisions in Wilson.

All three dissenting judges wrote opinions but one was a simple concurrence with the other two. In contrast to the majority opinion which focused on the reasonableness of a state photograph requirement in these interesting times, Abella J placed the burden of proving that the benefits of the legislation outweighed the harm to the Hutterites' freedom of religion as a core constitutionally protected democratic value on the province and found that the province had not done so. She noted that a state will always argue that a measure chosen is the minimum required to achieve its objective but required it to prove that argument, which is, of course, rather difficult to do given the ambiguous nature of these cases in which genuine differences of opinion are possible. She accepted the characterisation of the impact of the photograph requirement as severe for the Hutterites' way of life and noted the absence of identity theft cases to date involving the Hutterites since the adoption of the original legislation in 1974. She doubted that excluding such a small number of drivers from the data base would increase the incidence of identity theft, especially given how many adult Albertans did not have licences in the first place. Moreover, she cited evidence ignored by the majority that the facial recognition software could not be used to distinguish definitively persons on the basis of photographs and suggested that the absence of a provincial universal identity card indicated no compelling need for using a driver's licence instead. She concluded that the benefits of the requirement were slight and hypothetical.

Both LeBel and Fish JJ agreed. LeBel J further considered how within the Oakes test, a court should balance state action on the one hand and Charter rights on the other, that are of high social value, and concluded that courts must have discretion to assess the objectives of the impugned legislation and alternative means of achieving those objectives. In his view, the province failed to show that the photograph licence requirement was a proportionate response to the identity theft problem. While he did not suggest what might be proportionate (which is not a judicial task), LeBel J concluded that because a driver's licence is vital in rural Alberta today to daily life, belittling the impact of its absence on the beliefs and way of life of the Hutterites by expecting them to rely on external drivers to operate their farms and preserve their way of life was not an appropriate judicial outcome. A limited exception from the requirement for the Hutterites had not been proven to jeopardise the security of Albertans.

The interest in the Wilson Colony case for non-Canadian readers likely lies in the abject failure of the Oakes test to produce an agreed and reasonably defensible outcome when religious freedom must be balanced against other pressing societal objectives such as security from identity theft or even simply physical security. Canadian courts have been engaged in this project since the coming into force of the Charter in 1982 and recent decisions of the House of Lords, for example, in which similar balancing acts have had to be adjudicated within the context of Articles 9(1) and 9(2) of the European Convention on Human Rights,Footnote ¹⁰ suggest that British courts now face the same dilemma of finding a judicial test of neutral application to choose one social outcome over another which may be reasonably acceptable within a liberal democratic society. In both R (SB) v Governors of Denbigh High School Footnote ¹¹ and R (Williamson) v Secretary of State,Footnote ¹² for example, various tests were proposed by various law lords concerned with balancing competing interests which combined in whole or in part aspects of the Oakes test but based on the wording of Article 9. These proposed testsFootnote ¹³ were much less complex than Oakes and required the law lords to address more directly the social values at issue and make clearer policy choices such as enforcing school uniform requirements or restricting the corporal punishment of children, respectively, which could only anger the complainants in those cases but nevertheless set clear policy directions on sustaining traditional core British values.

Constitutionally entrenched bills of rights require courts to make decisions whose cumulative effect over time contributes significantly to social change by virtue of the sanctioning power of the state behind those courts. Judicial attempts to disguise policy choices behind judicial tests purporting to be neutral and to lead to reasoned results should be unacceptable where a culture is at stake. The stark contrast between the decisions of McLachlin CJC and Abella J demonstrates that tests such as the Oakes test, applied by both, can result in conflicting outcomes depending entirely on which factors and facts are selected for consideration and how they are weighed, in light of the unspoken personal attitudes and values of the judge. A more direct consideration of how important enforcement of the photograph requirement really was would have had the advantages of honesty and transparency in showing where the judiciary stands on significant cultural and religious matters. Although beyond the scope of a scholarly comment, it might be interesting to speculate why the daughter of a rural Albertan farmer and sometime fundamentalist preacher and a publicly self-acknowledged atheist comes down against the Hutterites, while the Jewish daughter of Nazi concentration camp survivors born in a transit camp prior to family immigration to Canada favours the Hutterites, emphasising the role of the courts in protecting religious minorities from the state.

The important point is that proportionality tests neither work when protecting religious freedom nor are they satisfying either intellectually or in respect to the outcome. Certain choices are purely choices and it is to be expected that courts should make those choices in accordance with traditional social values within a country and not hide behind purportedly neutral tests to advance other values. In Wilson Colony, the choice to exempt the Hutterites from the photograph requirement would have been the appropriate choice within the Canadian context. The terms negotiated with the Crown on which the Hutterites first moved to Canada, as well as those on which the Mennonites came as well, included exemptions from military service and jury duty, for example, as well as public school attendance, and permission to farm communally. The Canadian constitutional tradition has been to create exemptions for small religious communities in exchange for what the government of the day has considered to be of broader social value, in the case of the Hutterites, helping to develop the Prairies through farming. As a tiny religious minority with no real history of lawbreaking, their right to protection is difficult to rebut especially after the Charter. Jealousy by neighbouring farmers on account of Hutterite agrarian success is a slender basis on which to rest a denial of an exemption and the fundamental Charter freedom of religion.

The Wilson Colony case may have been made more complex by a factor beyond the control of the Hutterites and the unspoken elephant in the case, that is, its potential to spill over into claims by other religious groups for photo identification exemptions. The largest sub-group, the over one million Muslims now living in Canada, have made vocal and very public claims that females be permitted to wear hijabs or even to be photographed with only their eyes visible for passports, health cards and drivers' licences. To date these claims have been largely rejected although hijabs are permissible for passport photographs.Footnote ¹⁴ Although only the Hutterite complete exemption claim was made in the case, it seems unlikely that the court would not have recalled such claims as reasons were given. However, this possibility simply underlines the need for courts to make policy choices which demonstrate a clear commitment to established values including the historical practice of favouring legal protection for genuine religious minorities who live peacefully and lawfully with their neighbours.

Since the Hutterites are unlikely to drive illegally, their public response to the decision, as reported in the media, has been to state that they are considering both moving to another jurisdiction or asking the court to rehear the case – a request without constitutional precedent. It is difficult to see where in the world today the Hutterites could flee as has been their historical practice; Canada has treated them well and they have flourished here to a greater extent than anywhere else in their pilgrimage over the earth. Whatever their final decision, however, the Wilson Colony decision of the Supreme Court amply demonstrates the failure of proportionality tests, such as the Oakes test, to yield outcomes that the Charter was originally enacted to achieve, that is, the protection of peaceful and economically productive religious minorities from overreaching contemporary states.