Blog of the International Journal of Constitutional Law

Canadian Religion Cases

The Supreme Court of Canada in October of 2009 issued an important freedom of religion decision in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37. The Court rejected arguments that the Hutterites should be exempt from having photographs on their driver’s licenses. The Colony argued that the requirement violated their sincerely held religious beliefs. The Court ruled that Alberta’s interest in preventing identity fraud and theft, as well as promoting roadside safety, were sufficiently powerful justifications. Thus, Alberta satisfied the proportionality test under Canadian constitutional law. The dissenters argued that 700,000 Alberta residents don’t even have driver’s licenses, and that the Hutterites received an exemption for 29 years without significant consequences. Moreover, the dissenters said this placed a burden on the Colony that outweighed the benefits. The various opinions are quite detailed and this is just a summary of the major points.

It’s interesting to compare this case to the Supreme Court of Canada’s 2006 decision in Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6. There the Court granted an exemption that allowed a 12 year old Sikh boy to wear a dagger to school despite a contrary weapon policy. The dagger, known as a kirpan, is a Sikh religious object that must be worn by someone like this boy. The Court there said the school could never attain absolute safety, that methods could be instituted to ensure the dagger was not dangerous (e.g. sealing it under the pants of the boy), that the boy had never been a behavior problem, that the boy would face an irreconcilable conflict between his religion and the school code otherwise, and that Canada’s multi-cultural values were at stake.

The question then becomes whether the Court in the Hutterian case can distinguish Multani. The Court said the Hutterian case involved a “complex regulatory response to a social problem,” Par. 37, not the use of a penal type code. Multani also involved only granting an exemption for one person. Yet there seem to be tensions. The Court in the Hutterian case said the goal was to reduce the risk of identity fraud “as much as possible”, Par. 59, whereas the Court in Multani said schools only need try to be reasonably safe.


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