21st Sep 2010
ARTICLE #4 – SUPREME COURT OF CANADA
The final step in the journey now lays before us. However, unlike at QB and ABCA, the litigants must qualify for this final event. This qualifying round is the leave to appeal process. Except for some limited situations in criminal cases, cases like the Hutterian Brethren must be granted leave to appeal. It is only where a case raises a legal issue of national importance (genearly one that will create a legal precedent of broad application) that leave to appeal will be granted.
At the leave to appeal stage, written arguments are submitted by the parties. No oral arguments are required unless requested by the SCC. These written arguments do not address the merits of the case, rather they address whether there is an issue of national importance which the court should hear. A 3 justice panel of the SCC then reviews the leave to appeal application and essentially makes a recommendation to the full court – thumbs up or thumbs down. – Interveners may also file written arguments at this stage. Interveners? The plot thickens, or at least the
party grows larger.
An Intervener is a party that can provide expertise or a different perspective due to its experience which will assist the court in making its decision. Where the case raises a constitutional question there are 2 types of Interveners; those that can intervene as of right and those that require permission or leave of the court to intervene. Although Interveners can appear at all levels of court, it was only at the SCC level that Interveners appeared in the Hutterian Brethren case.
All of the Attorneys General in Canada may intervene as of right where a constitutional issue is raised. In the Hutterian Brethren case, the Attorneys General of Canada, Quebec, Ontario and British Columbia elected to intervene at the SCC.
All other Interveners must convince the court that they will be able to provide a perspective that is different from the Hutterian Brethren and Alberta that will assist the court in reaching its decision. In this case, the SCC granted leave to intervene to the Ontario Human Rights Commission, the Canadian Civil Liberties Association, The Evangelical Fellowship of Canada and the Christian Legal Fellowship, with the latter 2 as joint Interveners.
Each one of these interveners brought a different perspective to the case which the Hutterian Brethren needed to consider and potentially deal with in argument.
Stating the Constitutional Question
Once leave to appeal is granted, the next step is to state the constitutional question.
The parties (not the interveners) submit the wording of what they consider tot be the constitutional question to the Chief Justice of the SCC. In this case, the Chief Justice did not agree with the wording submitted and stated the constitutional questions as:
1. Does s. 14(1)(b) of Alberta’s Operator Licensing and Vehicle Control Regulation, Alta. Reg.320/2002, as amended by Alta. Reg. 137/2003, infringe s. 2(a) of the Canadian Charter of Rights and Freedoms?
2. If so, is the infringement a reasonable limit prescribedA by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?
3. Does s. 14(1)(b) of Alberta’s Operator Licensing and Vehicle Control Regulation, Alta. Reg. 320/2002, as amended by Alta. Reg. 137/2003, infringe s. 15(1) of the Canadian Charter of Rights and Freedoms?
4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?
Ready, Set, Action
Ready, set, action correct? Not so fast. What is the issue of national importance that needs to be determined?
As I prepared my written argument, worry turned to consternation then to despair as I realised that it wasn’t clear what that issue was.
At the QB level the task was easy to determine – set out all the law and all the facts. Again, at the ABCA level, the task was easy to determine – argue the errors in law. At the SCC level it should be a philosophical argument – what is the conceptual legal issue that has a broad applicability to a broad variety of situations.
The issue was not about photo-less drivers’ licences. In my mind, it was the philosophical and juridical basis for determining how the Charter applies to the Hutterian Brethren’s religious beliefs which prohibited them from having their pictures willingly taken and the belief in communal living.
So what was the legal question of national importance? I struggled with this question even after I had filed my written factum. In addition to the written factum, counsel are required to file a summary of their arguments approximately 10 days before the hearing with the summary exchanged among counsel in the court room immediately before the hearing begins. Unfortunately, my summary did not completely reflect my oral arguments which I did not finalise until the weekend before the hearing. For that I must apologise to my fellow counsel and the court. Even if I had had another month, I don’t believe I would have fully settled in my mind what the issue of national importance was.
I thought about:
#1 executive, legislative and judiciary separation of powers for purposes of 1st part of Oakes;
#2 reasonable accommodation as a 2 way street; and
#3 society as a factor in the analysis.
Many a sleepless night was had and it wasn’t until the weekend before the hearing that I finally nailed down my oral presentation. Ultimately, #1 was contained in my written factum, while #2 and #3 were part of my oral argument.
Judgment of the SCC
The appeal was heard by a 7 judge panel of the SCC. The final decision was split with 4 Justices allowing the appeal, thereby holding that the law was constitutional, and 3 Justices denying the appeal. Like the ABCA, the majority rules so the appeal was allowed and the law was held to be constitutional.
(As a side bar, although I stated in my previous articles that I would review the evidence in this article, I will not do so since the interpretation of the evidence was a matter of divergence between the majority and at least some of the dissenting Justices. The majority found that “It is clear on the evidence that the universal photo requirement enhances the security of the licensing system and thus of Albertans.” One of the dissenting Justices commented that “the government has not discharged its evidentiary burden or demonstrated that the salutary effects in these circumstances are anything more than a web of speculation…” Any attempt by me to set out the evidence would run the real risk of simply re-arguing the case with my interpretation of how the evidence should have been interpreted.)
The Majority Decision
The majority decision was written by the Chief Justice so there was only 1 written decision for the majority. The majority framed the issue predominately as ensuring the integrity of the drivers’ licence licensing system so as to minimize identity theft associated with that system. Other issues were also referred to in the majority decision but it appears the main issue was identity theft.
Although the majority used the steps set out in Oakes, it appears that the majority (and at least one of the dissenting Justices) introduced a new concept into the analysis: reasonable alternatives open to the religious objector, which may have been the issue of national importance. Any change in the Oakes test will require a rethinking of what must be addressed in any future constitutional challenges by parties whose Charter rights have been infringed.
I will follow the headings set out in my previous article to work through the Oakes test.
Objective to be Served
The Hutterian Brethren took up the concern of the ABCA whether a regulation could infringe a Charter right where the objective of the regulation (for constitutional analysis purposes) is not authorised by the statute. In a nutshell, the argument was that since regulations take their life from their enabling statutes, in order to be valid under ordinary rules of statutory interpretation, the purpose of the regulation must be authorised by its enabling statute, else the regulation is invalid. Since regulations are set by unelected officials or the executive branch of government, where the regulation infringes on a guaranteed Charter right (part of the supreme law of the land that takes precedence over non-constitutional laws), the objective of the regulation needs to be set by the people elected, that is why they are elected. The nub of the argument was that if a guaranteed Charter right is to be infringed, in a free and democratic society, it should be done by elected officials and not by the executive or subordinate bodies. To hold otherwise, would be to create a bifurcated system whereby the objective of a regulation would need to find its authority in the enabling statute for ordinary laws, but for constitutional analytical purposes, the words of the enabling statute become irrelevant. That was the argument
The majority held: “If a regulation is validly enacted pursuant to delegated legislative authority, its objective can properly be evaluated under the test established in Oakes.” In short, the majority found that Alberta had “established that the goal of ensuring the integrity of the drivers’ licensing system so as to minimize identity theft associated with that system is pressing and substantial” and that the regulation was a measure “prescribed by law.” The dissenting Justices did not take exception with this finding.
The majority found that the “universal photo requirement is rationally related to its goal of protecting the integrity of the driver’s licensing system and preventing it from being used for purposes of identity theft.”
It also limited the role that proportionality plays at this stage of the Oakes test. One of the dissenting Justices took some issue with limiting proportionality at this stage of Oakes, however, the decision did not turn on this part of the Oakes analysis.
It is at this stage of the Oakes test that dissenting Justices “start to part company with the majority.” The majority found that, in making the assessment of whether there are less harmful means of achieving the legislative goal, 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.”
Alberta put forward 2 alternatives: have a picture taken but carry the licence in a special wallet so that the Hutterian Brethren did not need to look at their pictures, or have a picture taken but only store the picture in the drivers’ licence system of the province (again so that the Hutterian Brethren did not need to look at their pictures).
The Hutterian Brethren argued that a driver’s licence specifically marked “not to be used for identification purposes” would meet the objective of Alberta since such a licence could not reasonably be used as a breeder document to establish the identity of the holder thereof in order to create other identity documents. In addition, the Hutterian Brethren argued that, since no first time applicant will have their picture in the system, the facial recognition software of Alberta would not be able to establish the identity of the applicant. The Hutterian Brethren, never having had their pictures taken for the system, would be such a first time applicant. Accordingly, Alberta must have a system of ensuring the identity of all first time applicants, else the integrity of the entire drivers’ licence system is invalid. If you can’t verify the identiy of a first time applicant, having the picture of an individual whose identity hasn’t been accurately identified means that any comparison to that picture is of no value. It then follows (went the argument) that the identity of the Hutterian Brethren could only be stolen if Alberta’s system of verifying the identity of first time applicants does not work, in which case the question of maintaining the integrity of the system is moot.
In oral argument, the Hutterian Brethren also argued that, if a fingerprint were taken in lieu of the photograph, the integrity of the system would be maintained since their identity could not thereafter be stolen since any fraudster would need to provide a fingerprint, which could be verified “beyond a reasonable dou t” as to fact that the fraudster was not that particular Hutterian Brethren. Although the fingerprint evidence was on the record before the SCC, none of the Justices referred to this argument.
The majority found that the “only way to reduce that risk [that the identity of the holder of the driver’s licence can be stolen and used for fraudulent purposes] as much as possible is through a universal photo requirement” and that the alternative proposed by the Hutterian Brethren “would significantly compromise the government’s objective’. The question to be answered, according to the majority “is whether, within that system, any exemptions, including for religious reasons, pose real risk to the integrity of the licensing system.”
The majority also found that the use of “reasonable accommodation” is limited to the case where government action or administrative practice is alleged to violate a Charter right, but where the validity of the law itself is at stake (as in the Hutterian Brethren) it is inappropriate to use reasonable accommodation and the appropriate approach is to use the minimum impairment analytical approach.
Proportionality in Effect
The majority found that “this is a case where the decisive analysis falls to be done at the final stage of Oakes.”
The majority found the salutary effects of a mandatory photo requirement to be to retain the integrity of the licensing system, assisting police officers in reliably identifying drivers at the roadside, and eventual harmonization with other licensing systems.
The majority reasoned that the most fundamental of the values to consider in looking at the deleterious effects of a limit on freedom of religion is “the right of choice in matters of religion…”, the question being “whether the limit leaves the adherent with a meaningful choice to follow his or her religious beliefs and practices.”
The majority found that the Hutterian Brethren still had a meaningful alternative to hire people to drive for them and that the evidence does not show “why it would not be possible to hire people with driver’s licences for this purposes or to arrange third party transport to town for necessary services…” and that “there is no evidence that this would be prohibitive.” It appears that the majority found that since “Driving automobiles on highways is not a right, but a privilege”, that the onus was on the Hutterian Brethren to put forward evidence (which would have been at the Queen’s Bench level) to justify why there were no reasonable alternatives to not having their photos taken. As mentioned before, perhaps this was a change in the Oakes test that will be of national importance for constitutional cases in the future.
Accordingly, the majority found that the mandatory photo requirement for drivers’ licenses was justified under s. 1 of the Charter.
The Dissenting Justices
There were 3 dissenting Justices, each of which provided a written dissent, so unlike the majority, 3 written dissents were provided.
Since the majority rules, the dissenting judgments are of interest from a juridical point of view but do not add to the personal observations of the trip to the SCC, which is the purpose of these set of articles. However, for those interested in something more juridical, I will be penning a final, more legally oriented article which will be posted when it is done.
The following is a general review of some of the objections raised by the dissenting justices, in part to give a perspective of the 4-3 split in the Justices.
“Over 700,000 Albertans do not have a driver’s license and are therefore not in the province’s facial recognition database. There is no evidence that in the context of several hundred thousand unphotographed Albertans, the photos of approximately 250 Hutterites will have any discernable impact on the province’s ability to reduce identity theft.”
“For all practical purposes, the reasons of the Chief Justice treat the law’s objective as if it were unassailable once the courts engage in the proportionality analysis. No means that would not allow the objective to be realized to its fullest extent could be considered as a reasonable alternative.”
“…the driver’s licence … is not a privilege. It is not granted at the discretion of governments. … Other approaches to identity fraud might be devised that would fall within a reasonable range of options and that could establish a proper balance between the social and constitutional interests at stake. This balance cannot be obtained by belittling the impact of the measures on the beliefs and religious practices of the Hutterites and by asking them to rely on taxi drivers and truck rental services to operate their farms and to preserve their way of life.”
The Hutterian Brethren was a case that was not clear cut in law, as evidenced by the fact that both the Alberta Court of Appeal and the Supreme Court of Canada were divided on the legal outcome.
This is the last of the articles that deals with my personal experience of the trip to the Supreme Court of Canada. I have attempted to provide a perspective of the personal experience of going to the Supreme Court of Canada. As well, I hope that they illuminated some of the legal issues that make up a Charter challenge case. Our Constitution is the supreme law of the land and if this set of articles has been at all educational to those reading it, I will have achieved my purpose.
Article #5 (the epilogue) in the series deals with a personal analysis of questions raised by the Hutterian Brethren case and potential directions that the author raises for consideration. It will be in a different format and will be structured as a legal analysis of the Hutterian Brethren case.
A copy of the written decision of the Supreme Court of Canada can be viewed free at the CanLii website (http://www.canlii.org/en/ca/) and search for “Hutterian Brethren of Wilson Colony” or at the University of Montreal Supreme Court of Canada website (http://scc.lexum.umontreal.ca/en/vn/2009/volume2.html).
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 W HICH MIGHT POTENTIALLY BE IN THE AREA CANVASSED BY THIS ARTICLE MUST SEEK LEGAL ADVICE FROM THEIR QUALIFIED LEGAL COUNSEL.