Freedom of Religion May be Limited where Effects of Limitation are Proportionate and Justifiable

Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (24 July 2009) In a 4:3 decision handed down on 24 July 2009, the Supreme Court of Canada allowed an appeal regarding the constitutionality of a regulation requiring photographs be taken for the grant of a driver’s licence.  The regulation was held to be constitutional because it is a justifiable limit on the right to religious freedom; and does not constitute religious discrimination against the respondents.

The Court analysed whether there was a justifiable limit on the right to religious freedom, and discussed the proper consideration of the proportionality requirement.


Since 1974, the province of Alberta has required all motor vehicle drivers to hold a license which bears the photograph of the driver.  An exemption was made for religious objectors, who were granted non-photo licences.  In 2003, the province adopted a new regulation that made the photo requirement universal and allowed photographs to be placed in a facial recognition data bank.

The Wilson Colony of Hutterian Brethren is a religious group that sincerely believes that the Second Commandment prohibits them from having their photographs willingly taken.  The Hutterites maintain a rural and communal lifestyle and attempt to be self-sufficient.  However, some members travel outside the Colony to obtain necessary goods and services for the Colony and currently hold non-photo licences to do so.

In 2005, members of the Colony brought a claim against Alberta, alleging that the photo requirement violated their religious belief.  Alberta argued that identity theft associated with driver’s licenses is a growing problem and argued that the regulation is part of a new system that aims to reduce identity theft by placing photographs taken for licences in the province’s facial recognition data bank.

At first instance, the case was decided in favour of the Colony members.  Alberta appealed to the Alberta Court of Appeal in May 2007, which upheld the decision at first instance.  Finally, Alberta appealed to the Supreme Court of Canada in October 2008.


All judges analysed the case on the presumption that the burden the regulation imposed was capable of interfering with the Colony claimants’ religious beliefs and practice.

Is the regulation a justifiable limit?

Under s 1 of the Canadian Charter of Rights and Freedoms, limits may be imposed on Charter rights if they are measures that are prescribed by law and are reasonable and demonstrably justifiable in a free and democratic society.  A measure must fall within a range of reasonable options.

The judges unanimously found that the regulation is a measure prescribed by law, and applied the Oakes test.  The Oakes test examines whether the legislature’s measure:

  1. has a pressing and substantial objective; and
  2. is proportionate in furthering its goals because it –
    1. is rationally connected to the objective;
    2. minimally impairs the right; and
    3. infringes the right in a manner proportional to the objective.

Pressing and substantial objective

The Court found that Alberta’s goal of maintaining the integrity of the drivers licensing system in a way that minimizes the risk of identity theft is a pressing and substantial objective, satisfying the first arm of the test.

Rational connection

The majority found that the photo requirement was rationally connected to the objective of maintaining the integrity of the licensing system, because an exemption from the photo requirement would increase the risk of identity fraud associated with the licensing system.  

Minimal impairment

The majority found that the universal photo requirement is reasonably tailored to address the problem of identity theft associated with drivers’ licences, and falls within a range of reasonable options.  They considered that there is no alternative measure that would satisfy the objective and not infringe the claimants’ right.  As such, they found that the requirement minimally impaired the claimants’ right to religious freedom.

Proportionality of infringement and objective

The majority considered the following effects in concluding that the measure was proportional:

  • enhancement of the security of the driver’s licensing system;
  • enhancement of roadside safety and identification;
  • harmonization of Alberta's licensing system with other jurisdictions; and
  • that the measure imposes on the claimants the cost of not being able to drive on the highway. 

The majority found that the judicial act of weighing up the deleterious effects on the right and the benefits of the measure is only relevant at the last stage of the test.  The first two stages are an examination of the impugned measure only.  

The majority considered that the aim of the measure was not to prevent all identity theft, its goal was to minimise identity theft associated with the drivers licence system.  Although the Hutterites represented a very small proportion of the overall scheme, their exemption would impact on the integrity of the identification system.  The majority further considered that the cost to the claimants of not being able to drive on the highway did not deprive the claimants of a meaningful choice as to their religious practice.  The measure imposed additional economic cost on the claimants because they would have to organise alternative means of transport in order to maintain the Colony.  However this would not be prohibitive, even though their self-sufficiency would be threatened.  The majority thus found that the universal photo requirement was proportionate to furthering the goal of maintaining the integrity of the licensing scheme.

Justice Abella, in dissent, held that proportionality should be considered in all stages of the second arm of the Oakes test.  Her Honour noted that many Albertans do not hold a license, and the exemption of 250 Hutterites would provide a marginal and hypothetical benefit.  Her Honour found that the requirement forced the claimants to choose between compliance with their religious beliefs or giving up the self-sufficiency of their community.  Self-sufficiency is significant for the claimants as it has been the way in which they have historically maintained their religious autonomy.

Religious discrimination

The majority found that the regulation does not infringe the right to equality of the claimants because the regulation does not create a distinction on the ground of religion.

Relevance to the Victorian Charter

Section 7(2) of the Victorian Charter of Human Rights and Responsibilities, in similar wording to the Canadian Charter, allows limitations that are reasonable and demonstrably justifiable in a free and democratic society.  Section 7 includes a non-exhaustive list of factors to be considered in determining whether or not a measure is reasonable and demonstrably justifiable.  The decision in Hutterian Brothers provides a useful guide to the Canadian jurisprudence on limits to rights and will be highly relevant in cases where Victorian laws of general application limit rights under the Victorian Charter and indicates that the relevant law's salutary and deleterious effects must be considered.

The decision is available at

Florence Seow is an Intern with the Human Rights Law Resource Centre