12th Jul 2011
ARTICLE #5 – EPILOGUE
Alberta v. Hutterian Brethren of Wilson Colony (“Hutterian Brethren”) is the latest decision in which the courts have wrestled with the interface between s.1  and s.2(a)  of the Charter of Rights and Freedoms (the “Charter”). Has Hutterian Brethren pinned the issue or are we still wrestling? This article explores the matter.
A. Hutterian Brethren – An Analysis
B. Potential implications: past and present;
C. A re-examination of s.1 analysis – Accommodation as a 2 Way Street
A. Hutterian Brethren – An Analysis
Hutterian Brethren – The Facts
1) The Brethren  had 2 religious beliefs:
a) the prohibition from willingly allowing their pictures to be taken; and
b) the doctrine of communal living, which required some of their members to be able to drive in order to maintain the self sufficiency of their rural communal living;
2) Alberta first required pictures on Alberta drivers licences in 1974, but exempted Hutterites due to their religious beliefs. In 2003 Alberta implemented a mandatory photo requirement for all drivers licences;
In 2003 there were 453 non-photo drivers licences, 2,394,917 drivers licences in total and over 700,000 Albertans without drivers licences – 37 of the 142 Wilson Colony members had drivers licences;
Alberta offered to accommodate the Brethren in 2 ways, both of which required taking a picture. Neither of these accommodations was acceptable to the Brethren;
the Brethren offered to accommodate Alberta by:
a) having their drivers licences specifically marked “Not to be used for identification purposes”; or
b) being fingerprinted so that upon renewal of their licences, their identity could be verified beyond a reasonable doubt. Neither of these accommodations was acceptable to Alberta;
3) Alberta’s argument focused on preventing identity theft by virtue of their facial recognition software.
s.1 Analysis – the Oakes Test
The Supreme Court of Canada (“SCC”) engaged in the s.1 analysis by following the Oakes test.  The court appeared to be in agreement that the objective to be served was the goal of ensuring the integrity of the driver’s licensing system so as to minimize identity theft. However, as can be seen by the divergence in opinion at the third and fourth branches of the Oakes test, this agreement on the objective to be served was more apparent than real.
It is the first, third and fourth branches of the Oakes test that raise conceptual matters which deserve further comment:
1) in the first branch (objective to be served), the framing of the objective as maintaining the integrity of the drivers licence system;
2) in the third branch (minimal impairment), the levelof deference shown to the government; and
3) confirmation that the fourth branch (proportionality) is part of the s.1 analysis and setting the parameters of such proportionality analysis.
First Branch of Oakes – Framing of the Objective
By framing the objective to be served as maintaining the integrity of the drivers licence system, the court appears to change the analysis from the objective of identity theft prevention to the objective of whether any exemption to the law would pose a real risk to the integrity of a particular system. By doing so, the pressing societal concern of identity theft prevention becomes a secondary consideration since the overall question of “how much” prevention occurs never needs to be determined. Consequently, proportionality becomes less important in the rest of the Oakes analysis since the analysis then focuses on maintaining the integrity of the system rather than identity theft prevention. This approach requires the government to take a hard position since any concession makes the focus of the analysis identity theft prevention rather than maintaining the integrity of the system.
The Brethren argued that the integrity of the system was not at risk since facial recognition software could not be used for any first time applicants like the Brethren, the 700,000 other Albertans without drivers licences or newcomers to Alberta, since none would have their pictures in the system for the facial recognition software to compare. Since facial recognition software cannot be used the first time a picture is registered, it cannot ensure the integrity of the system. The only way that the identity of one of the Brethren could be stolen in the drivers licence system, or where one of the Brethren could obtain a photo drivers licence in a fraudulent name, would be if Alberta’s system of verifying the identity first time applicants was thwarted. Facial recognition software is not relevant to maintaining the integrity of the system if the picture of the first time applicant is not valid. It is the ability of Alberta to verify the identity of all first time applicants and not the facial recognition software that is crucial to the integrity of the system. This argument was rejected by the majority.
Third Branch of Oakes – Deference to the Government
The majority opened its analysis showing significant deference to the government and noted:
“In making this assessment, the courts accord the legislature a measure of deference, particularly on complex social issues where the legislature may be better positioned than the courts to choose among a range of alternatives.”
The majority found that an exemption for an unspecified number of religious adherents (456 out of approximately 2.5 million drivers) would significantly compromise the government’s objective of maintaining the integrity of its system and therefore the only way to achieve the government objective was through a universal photo requirement.
The combination of the objective being the “integrity of the system” rather than identity theft prevention and the deference to the government makes for a powerful tool for the government and a formidable obstacle for the religious adherent to overcome.
Fourth Branch of Oakes – Proportionality
The Hutterian Brethren case is significant for clearly stating that the fourth branch of the Oakes test is applicable despite the doubts of some prominent legal scholars.
The introduction of the concept of “privilege” into the Oakes analysis is a new feature which some members of the panel were not comfortable with. What does this introduction mean for the s.1 analysis? The majority reasoning appears to be that since driving is a privilege and not a right, a different s.1 analysis is required. Is this the first step towards a Canadian laicité? Is it now easier for law makers to deny the privilege (i.e. the secular) so long as it does not explicitly deny the right?
At the least, the introduction of the concept of privilege means that lawyers dealing with future s. 2 (a) challenges will need to analyse their case to determine if any of the Charter infringements can be cast by the law making body as affecting a privilege and what that characterisation means for their case. 
Reasonable Alternatives Leaving Meaningful Choices
Since neither party raised the issue of hiring drivers as a potential alternative, neither party adduced evidence to either support or negate this alternative for purposes of the s. 1 analysis.
It is therefore unclear which party had the onus of adducing this evidence. However, since the majority found that there was no evidence to show why hiring drivers would be prohibitive, it would appear that the onus is on the religious adherent to adduce evidence in this regard. Does this mean that there is an onus shift for the fourth branch of Oakes?
If the law making body comes up with as many reasonable alternatives as possible when introducing the infringing law, will the religious adherent now need to refute each of the alternatives in the s.1 analysis, that is will the onus of proof shift to the religious adherent, at least in the fourth branch of Oakes, to prove why these “reasonable alternatives” do not apply? Or does this somehow go to the s.2(a) onus so that the religious adherent needs to prove why each of these possible alternatives infringes their freedom of religion rights? These questions will need to be determined in future cases.
Summary of Hutterian Brethren
What does Hutterian Brethren mean for the state of the law? In addition to clearly stating that the fourth branch of Oakes is applicable, it also appears to mark a shift of the court from a broad interpretation of what is protected by s.2(a) to a deferential position that allows government more room to implement laws of general application that will withstand the scrutiny of a s.1 challenge, at least in the area of s.2(a) rights. It may be that the majority is signalling a shift towards a position taken by the US Supreme Court that laws of general application override religious freedoms lest each conscience becomes a law unto itself.
B. Potential implications: past and present
Let us next look to Amselem and Multani through the Hutterian Brethren rear view mirror, then to current issues and how Hutterian Brethren might be applied to situations of apparent pressing and important public goals.
It is submitted that the Hutterian Brethren leaves the law in an unsettled state, one that could be interpreted by all parties, particularly government, in future disputes to mean that an attempt at accommodation is unnecessary. In Hutterian Brethren, the Alberta government took the position that the only accommodations available were ones that completely overrode the religious belief of the religious adherent: take a picture. On the other hand, the religious adherents offered two accommodations: one to have a licence marked: “not to be used for identification purposes”, and the other to be finger printed. The majority reasoned that hiring drivers, a matter that was not argued by either party on the journey to the SCC, was a reasonable alternative that left a meaningful choice to the Brethren. The alternative put forward by the Brethren of being finger printed was not dealt with by the majority in the decision.
The potential downside is that this decision may be interpreted by future religious adherents that compromise is unnecessary since taking a hard or extreme position from the outset will be no better or worse than engaging in a dialogue of accommodation with the government. As will be developed later in this paper, an analytical approach to s.1 that, directly or indirectly, encourages parties to take hard positions runs contrary to the true construction of s.1 analysis.
Amselem – The Facts
The first point to note about Amselem is that it was not a s.1 case. However, it is the seminal case which establishes the legal analysis required for determining what freedom of religion means pursuant to s.2(a) of the Charter, and what an individual needs to establish in order to trigger their “freedom of religion” rights.
The material facts of the Amselem case are as follows:
1. The appellants were Orthodox Jews who owned residential units in a luxury condominium;
Their religious beliefs required them to set up a “succah” on their own balconies and live in them during the Jewish religious festival of Succot;
The bylaws of the condominium (the “Bylaws”) prohibited construction on the balconies and therefore succahs were not permitted on the balconies;
None of the appellants had read the Bylaws prior to purchasing or occupying their individual units;
The condominium association refused to allow the construction of succahs on balconies although after receiving a request from the Canadian Jewish Congress to help facilitate a temporary solution, the condominium association proposed that a communal succah be constructed in the common gardens;
The appellants refused this proposal and insisted on constructing succahs on their own balconies.
The majority in Amselem appears to have reasoned that there is no necessity for the religious adherent to take any steps to attempt an accommodation of his or her religious beliefs and simply that their religious beliefs are what they are. In the majority view, any characterisation of the religious adherents “steadfast adherence to his or her religious beliefs” as intransigence, “does not further an enlightened resolution of the dispute…” This comment, as it relates to the s.2(a) analysis is understandable since whether an accommodation exists has little relevance to defining the parameters of a sincerely held religious belief. However, it can also be interpreted as providing an incentive to religious adherents to take extreme positions without any regard to attempting an accommodation. It is one matter to steadfastly define a sincerely held religious belief for s.2(a) purposes but it is a far different matter for the religious adherent to begin and end the dialogue by setting his (unbending) position of religious beliefs in the context of the s.1 analysis.
Although Amselem is not a s.1 case, it does set the stage for a zero sum analysis for purposes of s.1 as the case can easily be read by future religious adherents that they are free to take the most extreme view of their religious beliefs without compromise. Even though in Amselem the appellants had previously observed their religious belief by using a succah erected by family or friends, or sometimes simply not erecting a succah, due to the subjective nature of a religious belief, they were allowed to take the position that their current subjective religious belief (which differed from past practices) required them to have an individual succah on their own balcony without exception.
AMSELEM STARTS THE S.2(A) PROCESS BY ALLOWING RELIGIOUS ADHERENTS TO TAKE AN UNBENDING POSITION ON THEIR RELIGIOUS BELIEFS. IT IS THE PREMISE OF THIS AUTHOR THAT THE S.1 ANALYTICAL APPROACH OF HUTTERIAN BRETHREN CREATES AN INCENTIVE FOR ALL PARTIES TO A S.2(A) DISPUTE TO TAKE HARD POSITIONS WITHOUT ANY DIALOGUE. IF IT IS A WINNER TAKE ALL ANALYSIS, THEN IT IS BETTER TO TAKE A POSITION WHERE YOU WIN AS MUCH AS POSSIBLE.
Multani – The Facts
Unlike Amselem, Multani is a s.1 case.
The material facts of Multani are as follows:
1) the appellants are orthodox Sikhs whose religious belief requires the wearing of a kirpan  at all times;
2) the Code de vie (code of conduct) of the appellant’s school prohibited the carrying of weapons and dangerous objects;
the school board and the appellant agreed that he could wear his kirpan at school provided that it was sealed and sewn inside his clothing (at the first level of court, the appellant agreed that the kirpan be secured in a wooden sheath, wrapped in cloth and sewn to a shoulder strap);
the school’s governing board refused to ratify the agreement on the basis that wearing a kirpan at the school would violate the code of conduct;
a review board unanimously upheld the decision to prohibit the wearing of a metal kirpan, but suggested that a symbolic kirpan in the form of a pendant or one made of a material rendering it harmless would be acceptable;
the appellant moved to another school before the matter was finally determined by the SCC.
ALTHOUGH THE SCC ULTIMATELY HELD THAT THE TOTAL BAN ON KIRPANS WAS UNCONSTITUTIONAL AS IT DID NOT WITHSTAND THE SCRUTINY OF S.1, WOULD A HYPOTHETICAL SEQUEL TO MULTANI BE DECIDED DIFFERENTLY IN LIGHT OF HUTTERIAN BRETHREN?
Instead of focusing on the reduction of violence in schools, what if the school boards were to frame their argument as maintaining the integrity of a “zero tolerance” system to provide a violence free learning environment.
When creating this zero-tolerance violence free learning environment system, the school boards would need to do their research on how zero-tolerance systems work elsewhere, with an emphasis on the complexity of implementing such systems in different social and cultural environments. Since zero-tolerance means no exceptions, the school boards would be required to take a hard position that no exceptions could be tolerated, else the integrity of the system would be compromised. When the matter came before the courts, the school boards would then be able to show what their system is (i.e. zero tolerance), no exceptions could be tolerated in order to maintain the integrity of the system and that they had done their homework by gathering information setting out the social and cultural complexity of resolving the problem of violence in schools.
This approach pursuant to Hutterian Brethren, would inform the court’s analysis in the first 3 branches of Oakes. The fourth branch of Oakes then might again be the pivotal branch to be argued.
Whether going to a public school is a right or whether it is a privilege may not be relevant in the hypothetical sequel. Since the religious adherent ultimately moved to another school in the original action, would it not be reasonable to argue in the sequel that, by this very action, the religious adherent in the original Multani case affirmed that moving to another school was a reasonable alternative which was a meaningful choice for him. It is reasonable to presume that Mr. Multani received a similar quality of education and he was allowed to wear his kirpan. The only difference would be inconvenience and possibly additional cost. Although Multani casts attendance at public school as a right, it could be argued that there is a right to access public education but not necessarily a right to attend a specific school in the public education system. So long as the religious adherent could attend another public (or private) school, a limit on the right which exacts a cost but nevertheless leaves the adherent with a meaningful choice about the religious practice at issue would arguably be acceptable in light of Hutterian Brethren.
WHATEVER THE OUTCOME OF THE SEQUEL TO MULTANI, THE ANALYSIS APPLICABLE TO THE FOURTH BRANCH OF OAKES WILL REQUIRE FURTHER DEVELOPMENT BY THE COURTS.
That is a look at the past. Let us now hypothesize what the present could look like. The banning of face veils in public places is an issue that is frequently in the news. How might the Hutterian Brethren affect these types of bans in Canada and how could the principles espoused therein effect such bans?
Crime, Anarchy, and Terrorism
Toronto was the site for the recent G20 summit. An anarchist group calling themselves the “Black Bloc” wearing black clothes and balaclavas are allegedly responsible for much of the violence and vandalism which occurred in Toronto during the G20 summit. The violence and terror visited by anarchy on society is not a recent phenomenon. Toronto has first hand experience of the chaos and destruction caused by the anti-social acts of masked individuals bent on anarchy and violence.
In light of this experience, what if Toronto were to pass a general law to prevent crime, terrorism and anarchy which included financing for CCTV for public buildings mass transit major business and financial centres, government buildings, and airports then coupling that law of general application with a ban on face coverings for any of those places – in order to create a universal regulatory program which is a regulatory response to the complex and growing social problem of crime, terrorism and anarchism.
Unfortunately, violence is not a stranger to modern societies and it would seem to be eminently reasonable for the Toronto government to want to take pre-emptive measures for the common good to ensure that violence did not take hold in Toronto.
If the objective to be served is maintaining the integrity of the CCTV system and deference is required of the courts, it would appear that maintaining the integrity of this type of system would be viewed by the courts similarly to the drivers licence system in Hutterian Brethren. It seems logical that any exceptions to such a universal system could be exploited by those very elements of society that are looking to perpetrate violence, anarchy and terrorism. The question then would need to be what reasonable alternatives are open to individuals whose religious beliefs require their face to be covered. They could still live in the Toronto, could still work in Toronto, but if in one of the areas “covered” by CCTV, then the only issue would be what a reasonable alternative would be. Who frames the range of reasonable alternatives and who has the onus to prove or disprove them would need to be decided by the courts.
There appears to be ample room for creative interpretation of the Hutterian Brethren case which will need to be dealt with by the courts in future cases.
C. A re-examination of s.1 analysis – Accommodation as a 2 Way Street
It is the hypothesis of this paper that Canadian society is defined by the concept of accommodation. The Charter which is set out in ss.1 through 34 of the Constitution Act, 1982 protects “multicultural heritage”, denominational and separate school systems, certain rights of Aboriginal Peoples, and the official languages of English and French, both federally and in New Brunswick. Whether one views the Constitution of Canada as a document that reflects the will of Canadian society or a document that defines Canadian society, it is the “supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect.” However it is viewed, both s. 1 and s. 33 can be interpreted as provisions which build the concept of accommodation into our Charter.
Unlike the Canadian Charter, the American Bill of Rights contained in the US Constitution lacks a limitation clause similar to our s.1. Accordingly, “… the American courts have had to imply qualification on the rights in order to accommodate a legitimate restraints… this has been accomplished as a matter of “judicial legislation” and without any express direction in the Bill of Rights.” In other words, the US courts have had to create “judicial legislation” to justify overriding constitutional rights.
The American Bill of Rights has worked admirably well for the United States for over 200 years. However, both historically and culturally, Canada is not the same as the US, a fact which is clearly reflected in the difference between our respective constitutional documents. The fact that Canadian society did not simply adopt the American Bill of Rights means that we cannot simply adopt the approach used by the US courts. No matter how well reasoned the US decisions may be for the American Bill of Rights, the differences between our respective constitutional documents requires Canadian courts to use an analysis that is fashioned for the unique aspects of our Constitution. s.1 is unique in that it “states explicitly the exclusive justificatory criteria (outside of s. 33 of the Constitution Act, 1982) against which limitations on those rights and freedoms must be measured.” In other words, the mechanism and authorisation to override or infringe guaranteed Charter rights is built into the Charter and it is not necessary for our courts to resort to “judicial legislation” as the US courts have had to do. Indeed it is arguable that such “judicial legislation” has little legal basis in the Canadian constitutional context.
It is the premise of this paper that since our Charter has accommodation “hard wired” into it, it is an inescapable conclusion that (Canadian) “society” for purposes of the s.1 analysis must also engage the concept of accommodation. However, this accommodation cannot be one sided, it must be a two way street.
If we look at s.1 of the Charter, the object of the sentence is “society”. The phrase “prescribed by law” differentiates between private and state action. The phrase “reasonable limitations” defines the type of limitation but is not the operative portion of s.1 since a reasonable limitation per se will not satisfy s.1. The phrase “demonstratively justified” is a standard by which the “reasonable limitation” must be measured. The phrase “free and democratic” is an adjective to define the object of the paragraph, which is “society”. Therefore the concept of “society” must be engaged by the courts in the s.1 analysis since the failure to do so means the constitutionality of any law will be measured against an object (ie. society), that is never defined or articulated by the courts in the analysis.
If we are not to leave the s.1 analysis to the value judgement of individual judges as to what the undefined “society” is for each case, then the analysis itself must engage the concept of society even though a definition may not be forthcoming. “I can’t define it but I know it when I see it” is far too vague a principle to be used by individual judges to justify overriding rights guaranteed in the supreme law of the land.
A potential danger of not engaging the concept of society in the s.1 analysis is that society then becomes an entity unto itself which results in a “we-they” analysis or a presumption by the courts that there is a dominant “societal norm” to which the religious adherent must be compared, which quickly devolves into a zero sum analysis.
The s.1 analysis must recognize that society is not an entity unto itself but rather takes its form from all of its component parts, one of which is the religious adherents themselves. Conversely, the religious adherents must come to the table recognising that they are a part of society and cannot live outside of Canadian society. The reason why the religious adherents have a guaranteed Charter right of freedom of religion is because Canadian society determined that it was an important enough right to be included in an entrenched constitution that is the supreme law of Canada.
The danger of utilizing a zero sum approach in the s.1 analysis is that the result becomes a winner take all situation. Whether one agrees or disagrees with the s.1 analysis result in any particular case, where the group of religious adherents is relatively small, the effect on Canadian society as a whole will also be small. However, given the rich and lengthy multicultural heritage of Canada, it is easy to conceive of a situation where a relatively large group of homogenous religious adherents take an extreme position in their religious belief and bring a s.1 challenge to a particular law. If the s.1 analysis provides no incentive for the parties to engage in a dialogue, to simply set out hard, extreme positions in a winner take all scenario, are we taking the first step down a slippery slope? If we approach s.1 as a we-they analysis – society vs. the religious adherent, then would a negative decision not simply be a statement that Canadian society rejects them and therefore they must live outside of Canadian society. It is the fear of this writer that this may be the first step of multiculturalism turning into the Balkanization of Canada.
Where the s.1 analysis is a zero sum analysis, parties may be more inclined to take extreme and intransigent positions. An example of how this might play out was discussed in the Amselem case where both the trial judge and the Quebec Court of Appeal criticized the religious adherents for being unwilling to contribute to a solution that would be acceptable to all  and “…the appellant’s inflexible and intransigent attitude had made any accommodation virtually impossible.” Although Amselem was not a s.1 case, it illustrates that the probability of religious adherents taking intransigent positions without any notion of compromise is more than just theoretical musings.
It is not the premise of this paper that the Oakes test be abandoned. The courts have already considered the applicability of reasonable accommodation in the s. 1 analysis and the concept is widely associated with the issue of freedom of religion and conscience.
What is required is a further judicial exploration and development of the concept of “accommodation as a two way street” in the context of the “minimal impairment” portion of the Oakes test.
It is important to note here that “accommodation as a two way street” does not mean that the concept of “reasonable accommodation” as developed in human rights jurisprudence is simply overlaid on the s.1 analysis. Our Constitution in s.1 sets out how guaranteed Charter rights may be overridden – human rights legislation does not. Charter rights are enjoyed (generally) because we are part of Canadian society and the parameters of those rights are set out in our Constitution and the rule of law. Human rights are enjoyed (generally) because we are human and the parameters of those rights are set out by international conventions to which Canada is a party, international jurisprudence, our Constitution, domestic statutes and the rule of law. Unless and until our courts decide to equate how human rights and constitutional rights may be infringed, the analytical approaches should be kept distinct, despite the fact that both deal with fundamental rights of individuals.
The s.1 analysis specifically engages the concept of society. If the law cannot be shown to be a reasonable limitation that can be demonstrably justified in a free and democratic society, it is invalid. Without engaging the concept of society in the analysis, s.1 has no meaning. However, engaging the concept of society must not be conflated with defining society for purposes of the s.1 analysis.
So what does this phrase “accommodation as a two way street” mean?
The first point to make is that it does not mean a conflict between an amorphous “society” and a “religious adherent” – it is not a zero sum game.
The second point to make is that the religious adherent must realise that the reason that they have the right to freedom of religion is that Canadian society has determined that religious freedom is an important enough concept that it should receive guaranteed protection in our Charter, but subject to s.1. Restated, the religious adherent must recognise that their freedom of religion does not give them the right to live outside Canadian society. On the other hand governments must also recognise that it is not a “we-they” analysis. Therefore, it should not be a contest in the form of a zero sum game, a we-they analysis where the interests of one party are pitted against the other. It is not a competition to determine who is right and who is wrong as between adversaries. Society is a sum of the whole, which includes the religious adherent.
It is also not a cost benefit analysis or balancing act as both of those approaches connote a “we-they” analysis that ultimately starts down the slippery slope of a zero sum game.
It is precisely because our Charter contains the concept of society that we are all mandated to take individual responsibility for working towards a compromise, the great Canadian compromise, in resolving conflicts related to Charter rights. It is not good enough for the religious adherent to take an extreme position and say it is my right so accommodate me. Conversely, it is not good enough for the law maker to simply say this is a general law applicable to all that is in the best interests of society, so get over it.
So the question of defining “accommodation as a two way street” requires that the parties to a potential conflict “come to the table” as it were, ready to engage in the give and take, the compromise of accommodation as a two way street. This is not to suggest that the courts will ultimately need to define “society” nor is it likely that a fully developed concept of “society” will be developed in the jurisprudence. Accommodation as a two way street will act as an evidentiary tool to aid the courts in making their s.1 analysis. But more importantly it discourages parties to a Charter dispute from taking hard or even extreme positions and requires them to determine what alternatives are available, with the courts ultimately deciding the matter (but at least with a full discussion of the alternatives before them). We could not have arrived at the form of our Constitution, with its many accommodations, if the individual parts of Canadian society had taken extreme, unbending positions. If the Charter reflects accommodation, the s.1 analysis set out in the Charter must also reflect accommodation.
But, how does this have any practical application to reality? How is it possible to expect governmental agencies to engage in negotiations with all potentially (constitutionally) affected interest groups when passing all laws and regulations?
The answer is: how does any governmental agency, under the current interpretation of the Oakes test seriously accommodate the party whose Charter rights are being infringed and ensure that the provisions (law) have been carefully tailored to accomplish the objective of the law and minimally impair the Charter rights, unless it has not at least identified the parties whose Charter rights are being infringed, determined what those subjectively held beliefs are, seriously attempted to accommodate those Charter rights and carefully tailored the law to accomplish the objective while at the same time minimally impairing the Charter rights of the religious adherent. It is not possible to do this without first talking to the religious adherent to determine what their subjectively held beliefs are and how the measures will affect them.
Introducing the concept of “accommodation as a two way street” adds no additional conceptual hardship to the analytical process when compared to the current approach. Indeed, as the courts lack the information gathering mechanism that governments have at their disposal, the courts need to be aware of the alternatives considered by the parties in order to make the s.1 analysis on a fully informed basis. Putting the responsibility on the parties to the dispute to meet on this two way street will, at the very least, provide the courts with the best set of facts and potential alternatives in order to make a ruling on the particular dispute.
As with much constitutional analysis, there is a continuum that exists where certain parts of the continuum are more useful in the analysis for certain types of issues; a contextual approach to s.1 analysis. The contextual approach used by the SCC in the third branch of Oakes in different cases is indicative of the court’s willingness to use different approaches where it assists the court in making the s.1 analysis in different fact situations. The courts have wrestled with this continuum even where the question is between “infringement” and “denial” of Charter rights.
In Oakes, the courts needed to determine whether the reverse onus in the Narcotics Control Act violated the presumption of innocence entrenched in s.11(d) of the Charter. Oakes was a fact situation which fit into that end of the continuum which required little fact finding for purposes of the s.1 analysis – simply, was the reverse onus of the Narcotics Control Act a reasonable limitation of the presumption of innocence. Although Oakes was originally meant to be a single test for all s.1 cases, the SCC over the years has pulled out different tools from its analytical chest for use in the third branch of Oakes. The approach of accommodation as a 2 way street is but another such analytical tool.
The Constitution of Canada must “be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions bear these considerations in mind.” We cannot expect the judiciary to work in an evidentiary and contextual vacuum. As new social, political and historical realities arise, the judiciary must be provided with as much information as possible in order to be able to interpret the Constitution in these novel situations in a fashion that remains true to the original intent of its framers, particularly where the framers did not have these novel situations in mind when creating the Constitution. Failure to do so risks the Constitution being frozen in an era that did not contemplate new social or political realities, or in the Hutterian Brethren, new technologies.
Adopting the analysis of accommodation as a 2 way street is in accordance with the great Canadian compromise and forms part of the conceptual approach to s.1 analysis. Engaging the concept of society in the s.1 analysis will require a constant reaffirmation of what Canadian society is and what it means to be a part thereof for all s.2(a) cases.
The approach to s.1 analysis after Hutterian Brethren arguably creates an incentive for parties to take extreme positions in disputes involving s. 2(a) rights, in which case discussion stops and the wrestling match begins anew.
The Canadian Constitution has the concept of accommodation hardwired into it – it is something that Canadian society has entrenched in the supreme law of the land. In order to remain true to our Constitution, the s.1 analysis must engage the concept of society. The way to do this is to require all parties to engage in a meaningful dialogue where ever possible, to attempt to meet somewhere along the two way street.
Whether the religious adherent is a new comer or an old comer to Canada, the conceptual approach to the s.1 analysis must require them to enter into a dialogue about their s.2(a) rights and this requirement must also apply to the government. A system that provides an incentive for either side to take hard or extreme positions at best fails to reflect the true nature of s.1 and at worst sets the stage for acrimonious conflict between a juggernaut (in the non-religious sense) and an immoveable object. Something is bound to break.
The majority in Hutterian Brethren has shown what appears to be an increased deference to the government in the s.1 analysis. Such increased deference ultimately may increase the number of cases where the parties take hard, adversarial positions in s.2(a) disputes. It is this author’s hypothesis that a re-examination of the conceptual approach to the s.1 analysis is warranted, at least in the s.2(a) context, one that engages the concept of society.
K. Gregory Senda
Peterson & Purvis LLP
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THIS ARTICLE IS FOR GENERAL INFORMATIONAL PURPOSES ONLY TO ILLUSTRATE ONE TYPE OF LAW THAT THE AUTHOR PRACTICES. IT IS NOT LEGAL ADVICE NOR IS IT INTENDED TO BE LEGAL ADVICE. A PARTY READING THIS ARTICLE SHOULD NOT DO ANYTHING OR REFRAIN FROM DOING ANYTHING BASED ON THE CONTENTS HEREOF. ANY PARTY INVOLVED IN A LEGAL ISSUE WHICH MIGHT POTENTIALLY BE IN THE AREA CANVASSED BY THIS ARTICLE MUST SEEK LEGAL ADVICE FROM THEIR QUALIFIED LEGAL COUNSEL.
  2 S.C.R. 567
 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.
 Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion
 I will refer to the Hutterian Brethren in their capacity as the parties to the case as the “Brethren” in order to differentiate the individuals from the case name
 R. v. Oakes,  1 S.C.R. 103; For reference purposes, a brief description of the Oakes test is attached as Schedule “A” to this paper
 Hutterian Brethren, supra at para 56 “The purpose of the limit in this case, … is to maintain the integrity of the driver’s licensing system by minimizing the risk of driver’s licences being used for purposes of identity theft so as to prevent fraud and various other misuses of the system.”
at para 63 “We must take the government’s goal as it is. It is not the broad goal of eliminating all identity theft, but the more modest goal of maintaining the integrity of driver’s licensing system so as to minimize identity theft associated with that system. (emphasis in original) The question is whether, within that system, any exemptions, including for religious reasons, pose real risk to the integrity of the licensing system.”
 Hutterian Brethren, Para 63
 453 non-photo licenses out of approximately 2.5 million licenses; over 700,000 Albertans without licences whose identities are potentially available to be used to fraudulently obtain a driver’s licence.
 Calculations of Conscience: The Costs and Benefits of Religious and Conscientious Freedom, Howard Kislowicz, Richard Haigh, Adrienne Ng, Alberta Law Review (2011) 48:3 at pp 684, 694, 696, 698, 699 (herein referred to as “Kislowicz, Haigh and Ng”)
 Hutterian Brethren, supra at para 53
 Hutterian Brethren, supra at para 78 “…this is a case where the decisive analysis falls to be done at the final stage of Oakes.”
 Also see Multani v. Commission scolaire Marguerite-Bourgeoys,  1 S.C.R. 256 (herein “Multani”) at para 51 for reference to “reasonable alternatives”
 Hutterian Brethern, supra at para 88, see also para 94 and 95
 Hutterian Brethren, supra at para 98
 Hutterian Brethren , supra at para 172 (Abella J. in dissent)
 The police have reportedly used the ICBC photo data base and facial recognition software to help identify Vancouver rioters. Does the voluntary giving of a photo in order to access a privilege mean that the right of privacy is waived or of less importance? The courts will need to sort through this issue in the (likely) ensuing legal challenge.
 See Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990); per Scalia for the majority: “It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.”
 Hutterian Brethren, supra at para 4
 On the basis that even if the applicant could fraudulently obtain such a non-photo driver’s licence, such a non-photo licence could not be used as a foundation document to obtain other identification
 On the basis that fingerprints can be used to verify the identity of the individual renewing the licence beyond a reasonable doubt
 Syndicat Northcrest v. Amselem,  2 S.C.R. 551 (herein “Amselem”)
 The onus is on the religious adherent to prove on a balance of probabilities the following:
1) there is a sincere belief in a practice or belief that has a nexus with religion; and
2) the impugned law interferes with their ability to act in accordance with that practice or belief, in a manner that is more than trivial or insubstantial (Amselem at para 56, 65)
 A succah is a small enclosed temporary hut or booth, traditionally made of wood or other materials such as fastened canvas and opened to the heavens in which Jews are commanded to “dwell” in temporarily during the festival of Succot.
 Amselem supra at para 87
1.  Apart from two of the appellants, none of the appellants had set up succahs at the sanctuary in prior years; In those years they had celebrated the holiday as guests with family and friends, using their host’s succahs;
Evidence of the appellants past conduct was limited to one appellant who “when to the home of his sister, who lived not far from his apartment… to celebrate Succot. In 1994, when he moved into the Sanctuair, he did not erect a succah. Instead he went to New York state and stayed with a grandson who had his own succah. Another appellant who had lived in the Sanctuair since 1989 “had never errected a succah before 1996. During that period, even though he practised his religion, he usually went to New York state to celebrate Succot with his family. For several years, he remained in Montreal for the first important days of the holiday but did not erect a succah, as he thought it would be too difficult to do so for just a few days. … no evidence from the other [appellants was heard] on this point.”
 a kirpan is a religious object that resembles a dagger (approximately 20 cm) and must be made of metal
 Multani Para 40 “Forced to choose between leaving his kirpan at home and leaving the public school system, Gurbaj Singh decided to follow his religious convictions and is now attending a private school. The prohibition against wearing his kirpan to school has therefore deprived him of his right to attend a public school.” Charron, J
and see 1921 Sacco and Vanzetti anarchist trials: http://law.jrank.org/pages/9979/Sacco-Vanzetti-Trial.html ;
and see 1995 Battle in Seattle: http://www.towardfreedom.com/home/global-news/2202-11-years-after-the-wto-uprising-seattle-detroit-cancun-immokalee
 As in Hutterian Brethren, there should be no constitutional issue arising from a province enacting legislation related to crime prevention even though criminal powers are a federal jurisdiction
 For example see Oklahoma City bombing – Timothy McVeigh: http://www.courthousenews.com/2010/11/19/31996.htm ; Wikipedia http://en.wikipedia.org/wiki/Timothy_McVeigh; Timothy James McVeigh was a United States Army veteran and former security guard responsible for detonating a truck bomb in front of the Alfred P. Murrah Building in Oklahoma City on April 19, 1995, killing 168 people. It was the deadliest act of terrorism within the United States prior to the September 11, 2001 attacks  and is referred to as the Oklahoma City bombing .
 July 7, 2005 London England bus and subway bombings: http://www.theglobeandmail.com/news/world/europe/top-secret-evidence-should-be-heard-in-london-bombings-hearings-appeals-court/article1808551/; http://en.wikipedia.org/wiki/7_July_2005_London_bombings ; The 7 July 2005 London bombings (often referred to as 7/7) were a series of coordinated suicide attacks , upon London’s public transport system during the morning rush hour. On that morning, four al-Qaeda associated militants detonated four bombs, three on London Underground trains in quick succession, a fourth bomb exploding an hour later on a double-decker bus in Tavistock Square . Fifty-two civilians were killed in the attacks and around 700 were injured;
And see March 20, 1995 Tokyo subway sarin gas attack – Aum Shinrikyo: http://www.cdc.gov/ncidod/eid/vol5no4/olson.htm; http://en.wikipedia.org/wiki/Tokyo_subway_sarin_gas_attack; the sarin attack in subways of Tokyo The Sarin attack on the Tokyo subway, usually referred to in the Japanese media as the Subway Sarin Incident (地下鉄サリン事件 Chikatetsu Sarin Jiken, was an act of domestic terrorism perpetrated by members of Aum Shinrikyo on March 20, 1995;
And see March 11, 2004 Madrid train bombings: http://www.cnn.com/2010/WORLD/asiapcf/12/02/thailand.arrests/; http://en.wikipedia.org/wiki/March_11,_2004_Madrid_train_bombings; The Madrid train bombings consisted of a series of coordinated bombings against the Cercanías (commuter train ) system of Madrid, Spain on the morning of 11 March 2004 (three days before Spain’s general elections ), killing 191 people and wounding 1,800.The official investigation by theSpanish Judiciary determined the attacks were directed by an al-Qaeda -inspired terrorist cell  although no direct al-Qaeda participation (only “inspiration”) has been established.
 See 2008 Mumbai attack http://sify.com/news/26-11-attack-victim-s-family-wants-severe-punishment-for-kasab-news-national-kl1makiacbf.html; http://en.wikipedia.org/wiki/2008_Mumbai_attacks; The 2008 Mumbai attacks (often referred to as November 26th or 26/11) were more than 10 coordinated shooting and bombing attacks across Mumbai , India’s largest city, by Islamic terrorists  from Pakistan.  The attacks, which drew widespread global condemnation, began on 26 November 2008 and lasted until 29 November, killing at least 175 people and wounding at least 308, 9/11,
And see 1920 Wall Street anarchist bombing, footnote 31 above
 See Timothy McVeigh footnote 32 above
 See June 23, 1985 Air India bombing
On 23 June 1985, the airplane operating on the route — a Boeing 747-237B (c/n 21473/330, reg VT-EFO) named after Emperor Kanishka — was blown up by a bomb while in Irish airspace, at an altitude of 31,000 feet (9,400 m), and crashed into the Atlantic Ocean
And see New Year’s Eve 1999 bomb plot – Millenium bomber – Ahmed Ressa, Los Angelos airport: http://www.historycommons.org/timeline.jsp?complete_911_timeline_miscellaneous_al_qaeda_issues=
complete_911_timeline_alleged_al_qaeda_connected_attacks&timeline=complete_911_timeline; Ahmed Ressam (Arabic : احمد رسام; also Benni Noris or the Millennium Bomber; born May 9, 1967, in Bou Ismaïl , Algeria ) is a Muslim Algerian al-Qaeda member who lived in Montreal, Canada .
 This approach would also be applicable to Hérouxville, Quebec which has already banned face coverings.
 “A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person.” R. v. Big M Drug Mart Ltd.,  1 S.C.R. 295 at para 94 per Dickson, CJ
 s. 27 Charter
 s. 29 Charter
 s. 25 Charter; it may be that s. 25 is limited in its protection of Aboriginal rights, with s. 35 (which is outside the Charter but within the Constitution) dealing with most of the substantive Aboriginal rights
 s. 16 – s 23 Charter
 The Canadian Constitution is not a single document, with 30 instruments scheduled to s. 52(2) of the Constitution Act, 1982, and the rules of the Constitution “have to be hunted down in a variety of places.” per Constitutional Law of Canada (5th ed) Supplemented Carswell, Peter W. Hogg (herein referred to as “Hogg on Constitutional Law”)
 s. 52 The Constitution Act, 1982
 The “notwithstanding” clause: 33 (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”
 Hogg on Constitutional Law, supra at Chapter 38-1
 For example see Employment Division, Department of Human Resources of Oregon v. Smith 494 U.S. 872 (1990)
 Oakes, supra at para 63
Oakes, supra per Dickson, CJ at para 64. “A second contextual element of interpretation of s. 1 is provided by the words “free and democratic society”. Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions whichenhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by theCharter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified. (emphasis added)”; see also R v. Big M Drug Mart Ltd.,  1 S.C.R. 295, at pg 336 per Dickson C.J.:
“A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct.”
see also R v. Edwards Books and Art Ltd.,  2 S.C.R. 713 at para 215 per Wilson, J.:
“…respect for human rights cannot be achieved in a pluralistic society without a spirit of co-operation and goodwill on the part of all citizens but especially on the part of the majority.”
 From this statement, it is clear that the writer does not adhere to the “collectivist tradition” in which the state is viewed as an agency which mediates between the interests of various groups within society and by which the goals of the collectivity are advanced. See The Supreme Court of Canada and s.1 – The Erosion of the Common Front, Robin M. Elliot, Queen’s Law Journal, Vol. 12  at page 281.
 Even in the battle against global terrorism, a zero sum game analysis may not be warranted, see Liberty vs. Security – Not a Zero-Sum Game, The Lawyers Weekly, Vol. 26, No. 2 (May 12, 2006) Stantley A. Cohen
 cf Kislowicz, Haigh and Ng, supra at pg 690
 Amselem supra at para 177 referring to the criticism of the trial judge “In his view, [Rochon J., Superior Court of Quebec] their attitude showed that they were not willing to contribute to a solution that would be acceptable to all.” “…they never proposed anything other than the erection of succahs on their balconies.”
 Amselem supra at para 129 referring to Morin J.A. of the Quebec Court of Appeal “…it was the intransigent attitude adopted by the appellants that made any accommodation practically impossible, as they systematically refused every proposal that did not strictly meet their requirements.”
 e.g. see Multani, supra at para 52, 53
 For example see Building the Future A Time for Reconciliation, Gérard Bouchard; Taylor, Charles Commission de Consultation sur les Pratiques D’Accommodement Reliées aux Differences Culturelle;
 British Columbia (Public Service Employee Relations Committee) v. BCGSEU,  3 S.C.R. 3; British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights),  3 S.C.R. 868
 Supreme Court of Canada Law Review Vol.10: 469, The Supreme Court of Canada and Section 1 of the Charter, (1988) Lorraine Eisenstat Weinrib at page 507: “…rights are not guaranteed against the collectivity but in its name. The political community envisaged by the Charter is not one that pulls the rights away from their claimants but one that provides the tie that binds all its members into a political entity that honours those rights as supreme law. That kind of community is forged in both stages of Charter argument.” There is an “identity of interests”: at page 494.
 “Every political society is composed of other smaller societies of different kinds, each of which has its interests and its rules of conduct: but those societies which everybody perceives, because they have an external and authorized form, are not the only ones that actually exist in the State: all individuals who are united by a common interest compose as many others, either transitory or permanent, whose influence is none the less real because it is less apparent, and the proper observation of whose various relations is the true knowledge of public morals and manners. The influence of all these tacit or formal associations causes by the influence of their will, as many different modifications of the public will. The will of these particular societies has always two relations; for the members of the association, it is a general will; for the great society, it is a particular will; and it is often right with regard to the first object, and wrong as to the second. An individual may be a devout priest, a brave soldier, or a zealous senator, and yet a bad citizen. A particular resolution may be advantageous to the smaller community, but pernicious to the greater.” The Social Contract and Discourses, Jean Jacques Rousseau, J.M. Dent & Sons Ltd. 1966 at page 237 A Discourse on Political Economy
 For example see Kislowicz, Haigh and Ng, supra
 See Osgoode Hall Law Journal Vol 25 No 1, 1987 , “An Analytical Framework for the Application of the Canadian Charter of Rights and Freedoms” Sidney R. Peck at page 10 – 11:“However, it is unlikely that a fully developed political philosophy will evolve in the jurisprudence. …no fully developed view of the good society will emerge, but rather a number of partial views adopted by different judges at different periods of time.”
 Ross v. New Brunswick School District No. 15,  1 S.C.R. 825 para 1056 and 108; R v. Edwards Books, 2 S.C.R. 713 para 148 “…whether there is some reasonable alternative scheme which would allow the province to achieve its objective with fewer detrimental effects on religious freedom.” ; B.(R) v. Children’s Aid Society of Toronto,  1 S.C.R. 315 p. 385, 386; Canadian Charter of Rights and Freedoms (4th Ed) Chap 14; The Equality Rights, William Black and Lynn Smith p. 951
 For example see Elliot, supra at page 299-300; R v. Edwards Books, supra at para 192.
 “A court will also need to know what alternative measures for implementing the objective were available to the legislators when they made their decisions.” at para 68 Oakes
 This approach may also be useful in the duty to consult for Aboriginal issues: see Haida Nation v. British Columbia,  3 S.C.R. 511; see also Taku River Tlingit First Nation v. British Columbia,  3 S.C.R. 550; Although s. 35 of the Constitution Act, 1982 falls outside of the Charter and therefore the ambit of s.1, the conceptual approach of engaging the concept of society is still useful in the duty to consult analysis, unless one adheres to the theory that the Aboriginal peoples of Canada are a nation within a nation.
 For example see Oakes, supra; Ross v. New Brunswick School District No. 15, supra; R v. Edwards Books, supra ; B.(R) v. Children’s Aid Society of Toronto, supra; Multani, supra;
 Hogg on Constitutional Law, supra at para 38.6 citing: Quebec School Board  2 S.C.R. 66 at pg 88: “…the provisions of the [Quebec clause] collide directly with those of s. 23 of the Charter, and are not limits which can be legitimized by s.1 of the Charter”. This distinction was critized in Ford v. Que.,  2 S.C.R. 712; see also R. v. Big M Drug Mart,  1 S.C.R. 295
 s.8 of the Narcotics Control Act provided that if an accused was found in possession of a narcotic, then the accused is presumed to be in possession of the narcotic for purposes of trafficking, unless the accused could prove the contrary.
 Charter s.11(d) Any person charged with an offence has the right… (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
 Similar to the Quebec School Board case which required little in the way of factual background in order to determine that the s.1 analysis did not even apply in that case
 Peck, supra at page 6 quoting Dickson C.J. in Hunter v. Southam,  2 S.C.R. 145
 Peck, supra, at page 10: “Judges applying the purposive approach [of Charter analysis] must discuss values, social needs, competing interests and policy alternatives.”
 Re B.C. Motor Vehicle Act,  2 S.C.R. 486 per Lamer J. At para 53 “… the rights, freedoms and values embodied in the Charter in effect become frozen in time to the moment of adoption with little or no possibility of growth, development and adjustment to changing societal needs.”
 Weinrib, supra at page 471, “Judicial intransigence to that statutory instrument [Canadian Bill of Rights], in the purported service of legislative sovereignty, paved the way for the constitutional entrenchment of rights. It would be an ironic twist in the path of our constitutional history if our disappointment with the ultimate ineffectiveness of statutory protection of rights now blinds us to the new patterns of constitutional thought that have marked the Courts early Charter judgments. The irony would be far deeper still if indifference to the creation of a new mode of rights protection results in a return to the judicial deference to legislative preferences that marked the failure of the Bill of Rights jurisprudence.”
“If the Canadian legal culture wants less sophistication from the Court and less innovation from the Charter, its wish will be self-fulfilling. We invite a repetition of the Bill of Rights jurisprudence of judicially vetted “reasonableness” – and ultimately deference by courts to legislatures – in failing to recognise the grandeur of the Supreme Court’s attempt to understand the Charter as a new paradigm of rights protection.” at pg 513