Hutterian Brethen and the Supreme Court of Canada – One Lawyer’s Story Article #2 in a Series

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21st Sep 2010


The Court of Queen’s Bench was the first level of court in Alberta for this case. At this level, both parties needed to set out the entire case which consisted of the evidence and the law.


The Alberta Government began issuing photo drivers’ licences in 1974 but provided an exemption for those individuals who objected to having their pictures taken on religious grounds. In 2003, the situation changed when the Alberta Government passed a new mandatory photo drivers’ licence regulation with no provision for an exemption for religious reasons. Of the approximate 2.4 million drivers’ licences in existence in Alberta, there were 453 non-photo drivers’ licences in 2003 that had been issued to individuals with religious objections. The Hutterian Brethren sincerely believe that the Second Commandment prohibits them from having their photos willingly taken.

The Evidence

The Hutterian Brethren challenged the photo drivers’ licence law through a process called a special chambers application. As such, no oral or viva voce evidence was presented to the court. Rather, each side put their evidence into an affidavit, with the person swearing the affidavit then undergoing a cross examination by opposing counsel. This cross examination is done under oath and a court reporter records the proceedings and creates an official transcript. It is the affidavit and the transcript of the cross examinations that then forms the body of evidence which the court actually sees. The individuals swearing the affidavit and who are cross examined are only names to the court and only present their evidence through the written affidavits and transcripts filed with the court.

In preparing what evidence to put forward, we considered what was required to prove our case as well as anticipate what was necessary to counter the arguments we expected from the Attorney General of Alberta (the “AG”). Unlike litigation arising from an incident like a motor vehicle accident where most of the evidence arises from the incident itself, this case required both parties to put forward evidence to support their respective arguments. It was a conceptual case that required an analysis of what freedom of religion protected and what was an acceptable infringement of that freedom. It was not the cold application of the law to a set of facts arising from a specific incident. Although equality was also argued, these articles focus on the freedom of religion aspect of the case. Ultimately, at the SCC, the arguments for practical purposes focussed on freedom of religion and whether there was justification to infringe upon that freedom.

I will analyse the evidence after the SCC decision is handed down.

The law applicable to this case to a large extent drove the evidence put forward by the parties.

The Law

The law is divided into two distinct steps.

In the first step, the ball is in the Hutterian Brethren’s court. It is up to the applicant (in this case the Hutterian Brethren) to prove that their Charter right to freedom of religion has been infringed. If we could not prove this step, the case was over and the AG didn’t need to do anything.

The Charter of Rights guarantees the right to freedom of conscience and religion:
“2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;”

However, this simple statement does not say anything about how to determine what that freedom protects. It is necessary to go to the case law to flesh out those details.

The Amselem Test – (to prove infringement of freedom of religion)

A 2004 decision of the SCC, the Amselem case, sets out the test an applicant needs to satisfy in order to prove their Charter right to freedom of religion has been infringed.

The Amselem case involved a condominium corporation (the “Respondent”) and some of its residents (the “Appellants”). The Appellants were co-owners of condominium units, each of which had individual balconies. Pursuant to the terms of the condominium agreement, no decorations, alterations or constructions could be made on the balconies. The Appellants held the religious belief that they needed to set up “succahs” on their balconies for the purposes of fulfilling the biblically mandated obligation of dwelling in such small enclosed temporary huts during an annual religious festival.

None of the Appellants had read the co-ownership agreement which prohibited them from setting up such structures. The Respondent proposed to allow the Appellants to set up a communal succah in the gardens which satisfied some of the residents but the Appellants felt that their religious beliefs required them to have their own succahs on their own balconies. It is interesting to note that, in the Amselem case, the Respondent put forward expert evidence from religious leaders stating that a communal succah would satisfy the biblically mandated obligation whereas the Appellants put forward expert evidence from other religious leaders which stated that only private succahs would fulfil the biblically mandated obligation.

Amselem sets out a 2 part test, both of which the Hutterian Brethren needed to prove.

There is a sincere belief in a practice or belief that has a nexus with religion. This sincere belief need not be mandatory, required by official religious dogma nor does it necessarily need to be in conformity with the position of religious officials. It may be a subjectively held belief, but it must be sincere and not an artifice.

  1. There is a sincere belief in a practice or belief that has a nexus with religion. This sincere belief need not be mandatory, required by official religious dogma nor does it necessarily need to be in conformity with the position of religious officials. It may be a subjectively held belief, but it must be sincere and not an artifice.Where sincerity is in fact at issue, the court may look at evidence relating to whether the religious belief is sincere or not. However, the court does not engage in judicial interpretation of the religious belief. The court is not the arbiter of religious dogma.
  2. The law interferes with this ability to act in accordance with that practice or belief, in a
    manner that is more than trivial or insubstantial.

the AG conceded during argument that this first test had been met, that is, the new law requiring mandatory photos on drivers’ licences infringed the Hutterian Brethren’s sincerely held religious belief in a manner that was more than trivial or insubstantial.

The second step occurs after the Hutterian Brethren prove step #1, that is infringement of their Charter right of freedom of religion has occurred. The onus then shifted to the AG to prove that this infringement was justified under s.1 of the Charter.

s.1 reads:
“The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic society.”

The procedure for how one makes this determination was set out in a case called R. v Oakes.

The Oakes Test – (to justify overriding any Charter right)

Mr. Oakes was convicted of unlawful possession of a narcotic. At that time, Section 8 of the Narcotic Control Act provided that, if the court finds a person in possession of a narcotic, the person is presumed to be in possession for the purpose of trafficking and must be convicted of trafficking unless that person provides evidence establishing the contrary. This type of clause is known as a “reverse onus” clause. Mr. Oakes challenged the validity of this reverse onus clause as a violation of the presumption of innocence pursuant to Section 11(d) of the Charter of Rights.

Section 11(d) of the Charter states as follows:
“11. Any person charged with an offence has the right:
(d) to be presumed innocent until proven guilty accordingto law in a fair and public
hearing by an independent and impartial tribunal;”

From this set of facts, the SCC formulated what is now referred to as the Oakes test, which sets out the procedural steps taken to determine when s.1 of the Charter is satisfied thereby justifying overriding a guaranteed Charter right.

The Oakes test is a four part test or set of guidelines to be used by courts in determining whether s.1 of the Charter saves an otherwise unconstitutional law. It must be remembered that the Oakes test does not come into consideration unless the Hutterian Brethren first prove that their Charter rights have been infringed. However, once the onus shifts, each part of the Oakes test must be proven by the AG in order to be able to justify overriding the Charter right. Failure to prove even one of these parts means that the law is unconstitutional.

  1. Objective to be served
    The objective the law is attempting to achieve must be sufficiently important to warrant overriding
    a constitutionally protected right.
  2. Proportionality Test
    (a) Rational Connection: measures must be fair and not arbitrary, carefully designed to achieve the
    objective and rationally connected to that objective;
    (b) Minimal Impairment
    means should impair the right in question as little as possible
    Over the years the courts have borrowed the concept of “reasonable
    accommodation” from human rights law in making the analysis in this part of Oakes.
    The main argument of the Hutterian Brethren at the SCC was on this part of the
    Oakes test. More on this later.
    (c) Proportionality
    must be proportionality between the deleterious effects of the
    measures and the objective, and there must be a proportionality between the
    deleterious and the salutary effects of the measures (Note: this latter portion
    requiring an analysis of the deleterious and salutary effects

Court of Queen’s Bench Decision

The role of the judge at this first level is to sort through the evidence, determine what is relevant, where there is conflicting evidence, determine which to believe or give more weight to, determine what law to apply, apply that law to the evidence and then come up with a reasoned decision.

This role is not as easy to fulfill as one might think at first blush. The parties may put forward matters as evidence which, on closer scrutiny, is not evidence per se but more in the order of general assertions unsupported by hard facts. Sometimes there is conflicting evidence which requires the judge to give more weight to some of the evidence. The potentially applicable law is broad which is not reflected in the non-technical description of this article. For example, at this level of court the parties cited over 40 different cases and other sources of potentially applicable law that the judge had to wade through, analyse and determine which was relevant and which was
not, and then apply that relevant law in a principled and reasoned manner to the relevant evidence.

OK, so much for the legalese – what did the judge do?

After a brief introduction Justice LoVecchio noted that the AG did not dispute nor take issue with the evidence of the Hutterian Brethren that the photo drivers’ licence regulation infringed their sincerely held religious belief in a fashion that was more than trivial or insubstantial. In other words, the Hutterian Brethren had met their burden of proof and the sole issue in dispute was whether, pursuant to s.1 of the Charter, the mandatory photo drivers’ licence regulation could override the Hutterian Brethren’s guaranteed Charter right to freedom of religion. As there is no hierarchy between Charter rights, if s.1 justifies overriding freedom of religion, it would also justify overriding
the Charter right of equality. Since the argument right up to the SCC focussed on s.1 of the Charter, you can see that it is not necessary to discuss the Charter right of equality in these articles.

Objective to be Served

The judge noted that the AG characterised the objective to be served by the photo drivers’ licence regulation as being two fold: 1) the prevention of identity theft or fraud and the various forms of mischief which identity theft may facilitate; and 2) international and interprovincial photo identification standardisation. Although the judge held that these objectives were sufficiently important to satisfy the first part of the Oakes test, he noted that the photo drivers’ licence regulation did not create a photo identification card for all Albertans and was “aimed no further than ensuring that the system of issuing operator’s licences is safeguarded from fraud…”

Using this more limited understanding of the objective to be served, the judge then moved on to the rest of the analysis under the Oakes test.

Rational Connection

The judge found that the mandatory photo requirement on drivers’ licences is rationally connected to the objective of safeguarding the drivers’ licence system from fraud. So far, so good for the AG.

Minimal Impairment

The judge used the concept of “reasonable accommodation” in his analysis of this part of the Oakes test.

After establishing the analytical framework, since the AG had the burden of proof, the judge looked at the accommodations proffered by the AG. He noted that both potential accommodations required the Hutterian Brethren to submit to having their photos taken “which is precisely their problem”.

The judge then looked to see if any other alternative existed that would satisfy the AG’s objectives while minimally impairing the Hutterian Brethren’s guaranteed Charter rights.

He then turned to the proposed alternative put forward by the Hutterian Brethren which was to issue non-photo drivers’ licences specially marked “not to be used for identification purposes”. Although the Hutterian Brethren did not have to put forward any evidence in this regard, practical considerations came into play and the Hutterian Brethren also put forward the alternative of fingerprints. The fingerprint alternative did not form a material part of the Hutterian Brethren’s argument at either the Queen’s Bench or the Court of Appeal, but it was argued at the SCC. You have to wait for this argument to be explained.

The judge found that this alternative of being specially marked “not to be used for identification purposes” would not impair the Hutterian Brethren’s Charter rights and would also meet the AG’s objectives since:

“[28] In my view, this accommodation would also meet the government’s objectives. The non-photographic driver’s licences would bear a warning to all who might rely upon them as identity documentation not to do so. Even in the unlikely event that an individual sought to obtain a non-photographic driver’s licence by impersonating a person who claimed a religious objection to the capture of their image, that individual would be significantly limited in the extent to which he or she could use the licence.”

Since the AG failed to prove minimal impairment, it did not satisfy its onus to prove that s.1 of the Charter justified overriding the Hutterian Brethren’s guaranteed Charter rights.


Although not strictly necessary since the AG failed to prove minimal impairment, the judge commented on the deleterious and salutary effects. He noted that since photo drivers’ licences do not safeguard the identity of those individuals who do not qualify to drive, the effects of the photo drivers’ licence regulation “appear somewhat limited when weighed against the acknowledged incursion upon the religious beliefs of the [Hutterian Brethren]”. It could be that Justice LoVecchio felt that the AG may have failed on this part of the Oakes test also.


After discussing a number of potential remedies, Justice LoVecchio noted that the AG had already
faced this issue before the law was changed and struck down the mandatory photo drivers’ licence
regulation as being unconstitutional, which restored the pre-2003 status quo.

On to the Alberta Court of Appeal – Article #3 in the series

A copy of the written decision of the Alberta Court of Queen’s Bench can be viewed free at the CanLii website ( and search for “Hutterian Brethren of Wilson Colony” or at the Alberta Courts website (

K. Gregory Senda
Peterson & Purvis LLP
537 – 7th Street South, T1J 2G8
P.O. Box 1165, T1J 4A4
Lethbridge, Alberta, Canada
Telephone (403) 328-9667 Fax (403) 381-8822
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