Justifying State infringements of Charter Rights and Freedoms

Friday's Supreme Court of Canada decision in Alberta v. Hutterian Brethren of Wilson Colony 2009 SCC 37 is important both for its analysis of when a State infringement of a Charter Right or Freedom is justified and also because for the underlying approach taken by the Court. 

 

Broadly put the Court seems inclined to accept State explanations for legislation and to defer to State choices even where those choices do not seem drawn with the particularity that might be seen if protection of Charter Rights and Freedoms were seen as the most important of State goals.  Such an approach has broad implications for all constitutional litigation and suggests that, for example, the Court may be disinclined to strike down tough "law and order" legislation if such legislation can be rationally justified.  It may also be of interest to note that the dissenting voices on the Supreme Court are fairly consistent and (perhaps) ideological blocks have developed in the Court.

 

The facts of the case are fairly simple.  Alberta requires all persons who drive motor vehicles on highways to hold a driver's licence.  Since 1974, each licence has borne a photograph of the licence holder, subject to exemptions for people who objected to having their photographs taken on religious grounds.  Religious objectors were granted a non-photo licence called a Condition Code G licence, at the Registrar's discretion. 

 

In 2003, the Province adopted a new regulation and made the photo requirement universal.  The photograph taken at the time of issuance of the licence is placed in the Province's facial recognition data bank.  There were about 450 Condition Code G licences in Alberta, 56 percent of which were held by members of Hutterian Brethren colonies.  The Wilson Colony of Hutterian Brethren maintains a rural, communal lifestyle, carrying on a variety of commercial activities.  They sincerely believe that the Second Commandment prohibits them from having their photograph willingly taken and objected to having their photographs taken on religious grounds. 

 

The Province proposed two measures to lessen the impact of the universal photo requirement but, since these measures still required that a photograph be taken for placement in the Province's facial recognition data bank, they were rejected by the members of the Wilson Colony.  They proposed instead that no photograph be taken and that non-photo driver's licences be issued to them marked "Not to be used for identification purposes." Unable to reach an agreement with the Province, the members of the Wilson Colony challenged the constitutionality of the regulation alleging an unjustifiable breach of their religious freedom. 

 

The Court upheld the regulation writing, in part:

 

 

(2)   Is the Limit on the Section 2(a) Right Justified Under Section 1 of the Charter?

 

 

 

[35]                          This Court has recognized that a measure of leeway must be accorded to governments in determining whether limits on rights in public programs that regulate social and commercial interactions are justified under s. 1 of the Charter. Often, a particular problem or area of activity can reasonably be remedied or regulated in a variety of ways.  The schemes are typically complex, and reflect a multitude of overlapping and conflicting interests and legislative concerns.  They may involve the expenditure of government funds, or complex goals like reducing antisocial behaviour.  The primary responsibility for making the difficult choices involved in public governance falls on the elected legislature and those it appoints to carry out its policies.  Some of these choices may trench on constitutional rights. 

 

 

 

 

 

[36]                          Freedom of religion presents a particular challenge in this respect because of the broad scope of the Charter guarantee. Much of the regulation of a modern state could be claimed by various individuals to have a more than trivial impact on a sincerely held religious belief. Giving effect to each of their religious claims could seriously undermine the universality of many regulatory programs, including the attempt to reduce abuse of driver's licences at issue here, to the overall detriment of the community.

 

 

 

[37]                          If the choice the legislature has made is challenged as unconstitutional, it falls to the courts to determine whether the choice falls within a range of reasonable alternatives.  Section 1 of the Charter does not demand that the limit on the right be perfectly calibrated, judged in hindsight, but only that it be "reasonable" and "demonstrably justified".  Where a  complex regulatory response to a social problem is challenged, courts will generally take a more deferential posture throughout the s. 1 analysis than they will when the impugned measure is a penal statute directly threatening the liberty of the accused. Courts recognize that the issue of identity theft is a social problem that has grown exponentially in terms of cost to the community since photo licences were introduced in Alberta in 1974, as reflected in the government's attempt to tighten the scheme when it discontinued the religious exemption in 2003. The bar of constitutionality must not be set so high that responsible, creative solutions to difficult problems would be threatened. A degree of deference is therefore appropriate: Edwards Books, at pp. 781-82, per Dickson C.J., and Canada (Attorney General) v. JTI‑Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 43, per McLachlin C.J.

 

 

 

[38]                          With this in mind, I turn to the question of whether the limit on freedom of religion raised in this case has been shown to be justified under s. 1 of the Charter.

 

 

 

…

 

 

(ii)   Does the Limit Minimally Impair the Right?

 

 

 

 

 

[53]                          The question at this stage of the s.1 proportionality analysis is whether the limit on the right is reasonably tailored to the pressing and substantial  goal put forward to justify the limit.  Another way of putting this question is to ask whether there are less harmful means of achieving the legislative goal.  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.

 

 

 

[54]                          In RJR-MacDonald, the minimal impairment analysis was explained as follows, at para. 160:

 

 

 

As the second step in the proportionality analysis, the government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective. The impairment must be "minimal", that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement. ... On the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail. [Emphasis added; citations omitted.]

 

 

 

 

 

In this manner, the legislative goal, which has been found to be pressing and substantial, grounds  the minimum impairment analysis.  As Aharon Barak, former President of the Supreme Court of Israel, puts it, "the rational connection test and the least harmful measure [minimum impairment] test are essentially determined against the background of the proper objective, and are derived from the need to realize it": "Proportional Effect: The Israeli Experience" (2007), 57 U.T.L.J. 369, at p. 374.  President Barak describes this as the "internal limitation" in the minimum impairment test, which "prevents it [standing alone] from granting proper protection to human rights" (p. 373). The internal limitation arises from the fact that the minimum impairment test requires only that the government choose the least drastic means of achieving its objective. Less drastic means which do not actually achieve the government's objective are not considered at this stage. 

 

 

 

[55]                          I hasten to add that in considering whether the government's objective could be achieved by other less drastic means, the court need not be satisfied that the alternative would satisfy the objective to exactly the same extent or degree as the impugned measure. In other words, the court should not accept an unrealistically exacting or precise formulation of the government's objective which would effectively immunize the law from scrutiny at the minimal impairment stage. The requirement for an "equally effective"  alternative measure in the passage from RJR-MacDonald, quoted above, should not be taken to an impractical extreme. It includes alternative measures that give sufficient protection, in all the circumstances, to the government's goal: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350. While the government is entitled to deference in formulating its objective, that deference is not blind or absolute. The test at the minimum impairment stage is whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner. As I will explain, in my view the record in this case discloses no such alternative.

 

 

 

 

 

[56]                          The purpose of the limit in this case, I earlier concluded, 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.  The regulation is part of a complex regulatory scheme and is aimed at an emerging and challenging problem.  The question, therefore, is whether the means chosen to further its purpose — the universal photo requirement for all licensed drivers — is reasonably tailored to address the problem of identity theft associated with driver's licences.

 

 

 

[57]                          The Province proposes alternatives which maintain the universal photo requirement, but minimize its impact on Colony members by eliminating or alleviating the need for them to carry photos.  This would permit the Province to achieve its goal of a maximally efficient photo recognition system to combat fraud associated with driver's licences, while reducing the impact on the members' s. 2(a) rights. 

 

 

 

[58]                          However, the Hutterian claimants reject these proposals.  For them, the only acceptable measure is one that entirely removes the limit on their s. 2(a) rights.  They object to any photo being taken and held in a photo data bank.  For them, the only alternative is a driver's licence issued without a photo, stamped with the words, "Not to be used for identification purposes".

 

 

 

 

 

[59]                          The problem with the claimants' proposal in the context of the minimum impairment inquiry is that it compromises the Province's goal of minimizing the risk of misuse of driver's licences for identity theft.  The stamp "not to be used for identification purposes" might prevent a person who comes into physical possession of such a licence from using it as a breeder document, but it would not prevent a person from assuming the identity of the licence holder and producing a fake document, which could not be checked in the absence of a photo in the data bank.  As Slatter J.A. pointed out, without the photo in the bank, the bank is neutralized and the risk that the identity of the holder can be stolen and used for fraudulent purposes is increased.  The only way to reduce that risk as much as possible is through a universal photo requirement.  The claimants' argument that the reduction in risk would be low, since few people are likely to request exemption from the photo requirement, assumes that some increase in risk and impairment of the government goal may occur, and hence does not assist at the stage of minimal impairment.

 

 

 

[60]                          The claimants' proposal, instead of asking what is minimally required to realize the legislative goal, asks the government to significantly compromise it.  An exemption for an unspecified number of religious objectors would mean that the one-to-one correspondence between issued licences and photos in the data bank would be lost.  As shown by the Province, this disparity could well be exploited by wrongdoers. Contrary to the suggestion of LeBel J. (para. 201), the evidence discloses no alternative measures which would substantially satisfy the government's objective while allowing the claimants to avoid being photographed.  In short, the alternative proposed by the claimants would significantly compromise the government's objective and is therefore not appropriate for consideration at the minimal impairment stage.

 

 

 

[61]                          This is not to suggest the Colony members are acting improperly.  Freedom of religion cases may often present this "all or nothing"  dilemma.  Compromising religious beliefs is something adherents may understandably be unwilling to do. And governments may find it difficult to tailor laws to the myriad ways in which they may trench on different people's religious beliefs and practices.  The result may be that the justification of a limit on the right falls to be decided not at the point of minimal impairment, which proceeds on the assumption the state goal is valid, but at the stage of proportionality of effects, which is concerned about balancing the benefits of the measure against its negative effects.

 

 

 

 

 

[62]                          I conclude that the universal photo requirement minimally impairs the s. 2(a) right.  It falls within a range of reasonable options available to address the goal of preserving the integrity of the driver's licensing system. All other options would significantly increase the risk of identity theft using driver's licences.  The measure seeks to realize the legislative goal in a minimally intrusive way.

 

 

 

[63]                          Much has been made of the fact that over 700 000 Albertans do not hold driver's licences. The argument is that the risk posed by a few hundred potential religious objectors is minuscule as compared to the much larger group of unlicensed persons. This argument is accepted by the dissent.  In my view, it rests on an overly broad view of the objective of the driver's licence photo requirement as being to eliminate all identity theft in the province. Casting the government objective in these broad terms, my colleague Abella J. argues that the risk posed by a few religious dissenters is minimal, when compared to the general risk posed by unlicensed persons. But with respect, that is the wrong comparison. 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. The question is whether, within that system, any exemptions, including for religious reasons, pose real risk to the integrity of the licensing system.

 

 

 

 

 

[64]                          The implication of  Justice Abella's reasoning is that because the province tolerates the identity theft risk posed by unlicensed Albertans, it must therefore tolerate the risk associated with non-photographed licensees. On this logic, the province would be required to take the more radical approach of requiring photographic identification for every Albertan, which would directly contravene the respondents' religious beliefs, before it could rely upon a security risk argument in the context of the narrower driver's licensing program. In my opinion, the province has a legitimate interest in ensuring the integrity of its driver's licensing system and guarding against the risk that it will be used to perpetrate fraud. In order to accomplish this goal, it should not be forced to undertake broader measures that it might have resisted for other policy reasons.  

 

 

 

[65]                          The courts below approached minimum impairment in a different fashion.  First, they conducted the balancing inquiry at the stage of minimal impairment. Second, drawing on this Court's decision in Multani, the courts below applied a reasonable accommodation analysis instead of the Oakes test. 

 

 

 

[66]                          In my view, a distinction must be maintained between the reasonable accommodation analysis undertaken when applying human rights laws, and the s. 1 justification analysis that applies to a claim that a law infringes the Charter.  Where the validity of a law is at stake, the appropriate approach is a s. 1 Oakes analysis.  Under this analysis, the issue at the stage of minimum impairment is whether the goal of the measure could be accomplished in a less infringing manner.  The balancing of effects takes place at the third and final stage of the proportionality test.  If the government establishes justification under the Oakes test, the law is constitutional.  If not, the law is null and void under s. 52 insofar as it is inconsistent with the Charter.

 

 

 

 

 

[67]                          A different analysis applies where a government action or administrative practice is alleged to violate the claimant's Charter rights. If a Charter violation is found, the court's remedial jurisdiction lies not under s. 52 of the Constitution Act, 1982 but under s. 24 (1) of the Charter:  R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 61. In such cases, the jurisprudence on the duty to accommodate, which applies to governments and private parties alike, may be helpful  "to explain the burden resulting from the minimal impairment test with respect to a particular individual"(emphasis added): Multani, at para. 53, per Charron J.

 

 

 

[68]                          Minimal impairment and reasonable accommodation are conceptually distinct. Reasonable accommodation is a concept drawn from human rights statutes and jurisprudence. It envisions a dynamic process whereby the parties — most commonly an employer and employee — adjust the terms of their relationship in conformity with the requirements of human rights  legislation, up to the point at which accommodation would mean undue hardship for the accommodating party. In Multani, Deschamps and Abella JJ. explained:

 

 

 

The process required by the duty of reasonable accommodation takes into account the specific details of the circumstances of the parties and allows for dialogue between them.  This dialogue enables them to reconcile their positions and find common ground tailored to their own needs. [para. 131]

 

 

 

 

 

[69]                          A very different kind of relationship exists between a legislature and the people subject to its laws. By their very nature, laws of general application are not tailored to the unique needs of individual claimants. The legislature has no capacity or legal obligation to engage in such an individualized determination, and in many cases would have no advance notice of a law's potential to infringe Charter rights.  It cannot be expected to tailor a law to every possible future contingency, or every sincerely held religious belief.  Laws of general application affect the general public, not just the  claimants before the court.  The broader societal context in which the law operates must inform the s. 1 justification analysis.  A law's constitutionality under s. 1 of the Charter is determined, not by whether it is responsive to the unique needs of every individual claimant, but rather by whether its infringement of Charter rights is directed at an important objective and is proportionate in its overall impact. While the law's impact on the individual claimants is undoubtedly a significant factor for the court to consider in determining whether the infringement is justified, the court's ultimate perspective is societal. The question the court must answer is whether the Charter infringement is justifiable in a free and democratic society, not whether a more advantageous arrangement for a particular claimant could be envisioned.

 

 

 

[70]                          Similarly, "undue hardship", a pivotal concept in reasonable accommodation,  is not easily applicable to a legislature enacting laws. In the human rights context, hardship is seen as undue if it would threaten the viability of the enterprise which is being asked to accommodate the right. The degree of hardship is often capable of expression in monetary terms. By contrast, it is difficult to apply the concept of undue hardship to the cost of achieving or not achieving a legislative objective, especially when the objective is (as here) preventative or precautionary. Though it is possible to interpret "undue hardship" broadly as encompassing the hardship that comes with failing to achieve a pressing government objective, this attenuates the concept. Rather than strain to adapt "undue hardship" to the context of s. 1 of the Charter, it is better to speak in terms of minimal impairment and proportionality of effects.

 

 

 

 

 

[71]                          In summary, where the validity of a law of general application is at stake, reasonable accommodation is not an appropriate substitute for a proper s. 1 analysis based on the methodology of Oakes. Where the government has passed a measure into law, the provisions of s. 1 apply.  The government is entitled to justify the law, not by showing that it has accommodated the claimant, but by establishing that the measure is rationally connected to a pressing and substantial goal, minimally impairing of the right and proportionate in its effects.