Hutterites consider leaving Alberta after losing court battle

OTTAWA — Members of a religious community in Alberta say they may have no choice but to leave the province after the Supreme Court of Canada ruled that they must have their photographs taken if they want driver's licences.

In a case that became a showdown between security concerns and freedom of religion, Canada's top court ruled 4-3 in favour of the Alberta government in a decision released Friday.

"It's a sad day for Canada, for Alberta. We are law-abiding people, we are honest," said Sam Wurz, manager of the Three Hills Hutterite colony, one of the two communities that challenged the province over the photo ID.

"We'll have to sit down and think this over and think what route we're going to go. If we're going to obey the government or maybe make up our mind to move out of the province."

The case involved the Alberta government and two colonies of Hutterites, who believe the Second Commandment's ban on "graven images" prohibits having their photos taken willingly. Supported by 14 other Hutterite communities in Alberta, the colonies sued the province for infringing on their religious freedom when it made driver's licence photos mandatory.

But after Hutterite victories in two previous court cases, the Supreme Court decided in favour of the province.

"The negative impact on the freedom of religion of colony members who wish to obtain licences does not outweigh the benefits associated with the universal photo requirement," Justice Beverley McLachlin wrote in support of the decision.

The Hutterites argued that their communal lifestyle would be threatened if they were unable to get driver's licences, while the province said the universal photo requirement would minimize identity theft and help build a facial recognition databank.

The Christian sect arrived in Canada in the early 1900s fleeing persecution overseas.

Wurz said the two camera-shy colonies now feel pushed out of Alberta, too.

"It's discrimination, that's the right word for it," Wurz said.

One possibility is hiring drivers if they can afford to do so, said Greg Senda, the Hutterites' lawyer.

He said the Hutterite elders will meet to discuss whether there's any room to compromise on the photos, given that the government has made them mandatory.

"It's the voluntary (nature) of taking the picture that is their concern," Senda said. "They acknowledge that there are circumstances in today's modern society where photographs are taken, and you can't do anything about it."

For years, Alberta had allowed people to carry special Condition Code G licences without photographs if they had religious objections, but the province changed the law in 2003, requiring all licences to have photos. Prior to the change, Alberta had issued 453 photoless licences, just over half of them to members of Hutterian Brethren colonies.

The security of the licensing system is "a goal of pressing and substantial importance," McLachlin wrote in support of the majority decision, and exempting people from the photo requirement would increase its "vulnerability" and the risk of identity fraud, she said.

Alberta's photo regulation might prevent the Hutterites from driving on the highway, she wrote, but it won't deprive them of "a meaningful choice as to their religious practice" or other rights guaranteed under the Charter of Rights and Freedoms.

Service Alberta Minister Heather Klimchuk said the province is allowing a grace period for the colonies in question to adjust to the new rules. Interim annual licences granted on a temporary basis while the legal drama played out will be allowed to naturally expire instead of becoming automatically invalid.

But the court's ruling is firm, said Klimchuk.

"It's a photo licence or no licence. I feel quite strongly about it," she said.

In her dissenting opinion, Justice Rosalie Silberman Abella argued the mandatory photo requirement "seriously harms" the religious rights of the Hutterites and threatens their ability to maintain their communal way of life. An exemption to the photo requirement on religious grounds was in place for 29 years without any evidence it harmed Alberta's licensing system, she said.

"There are going to be increasing numbers of these cases, which reflect the diversity of religious beliefs and practices in the country," Lorraine Weinrib, a constitutional law professor at the University of Toronto, said about religious freedom cases.

The Supreme Court potentially opened the door to more such cases by deciding that such claims can be made on the grounds of an individual's sincere religious belief, even if it's not something considered obligatory in their religious community or tradition, she said.

"Setting aside the actual legal issues, the result of the case is that this puts an enormous burden on the ability of the community to survive as a religious community, following its way of life," Weinrib said.

With files from Calgary Herald