Accommodation Without Compromise: Comment on Alberta v. Hutterian Brethren of Wilson Colony

Abstract

Alberta law requires that all driver’s licence holders be photographed. Members of the Hutterian Brethren objected on religious grounds to having their photos taken and challenged the constitutionality of the photo requirement. In the Hutterian Brethren case, a majority of the Supreme Court of Canada held that the photo requirement breached section 2(a) of the Charter but was justified under section 1. The majority adopted a weak standard of justification under section 1. A restriction will be justified as long as the law has a legitimate purpose and the restriction is necessary to advance that purpose. The majority’s adoption of this weak standard of justification under section 1 reflects the Court’s ambivalence about the state’s duty to compromise its policies to make space for religious practices and more deeply about the nature of religious belief and its place in the public life of the community. While it may sometimes be useful to treat religion as separate from politics, the insulation (and exclusion) of religion from public decision-making will inevitably be partial and pragmatic. Accommodation will occur at the margins of law, and will involve only minor trade-offs that do not significantly affect public policies.