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Photos, turbans, kirpans, etc.

If a law infringes the religious beliefs of certain people, how do judges decide if it should remain in force? They use a test.

A test? Yes, they ask a series of questions and the answers determine which way the scales of justice will tilt.

The Supreme Court of Canada recently used a test to evaluate an Alberta law requiring photos on driver's licences. Members of the Hutterite community in Alberta claimed the law infringed their freedom of religion since they believe the Bible prohibits them from being photographed.

Here is the test the Supreme Court used:

1. Has the right to freedom of religion been denied?

This is the first part of the test. The judges must agree that the law being challenged really limits religious freedom. They must be satisfied that:

a) the religious belief of the person challenging the law is sincere
b) the law interferes in a significant way with religious practices

If the answer to one of these questions is “no”, the judges must reject the challenge to the law. If the answer to both questions is “yes”, the judges move to the second part of the test.

In the case of the Hutterites, the Supreme Court decided that they sincerely believed they could not be photographed and that this was a significant interference with their beliefs.

2. Is the restriction on freedom of religion justified?

This is the second part of the test. At this stage, the judges must decide if the restriction on religious freedom is “justified in a free and democratic society”. The words in quotes are found in the Canadian Charter of Rights and Freedoms. The Charter is a document that describes rights protected by law and sets out rules on when rights can be restricted.

To decide if the restriction on a right is acceptable or "justified", the judges ask these questions:

• 1. Does the law limiting freedom of religion deal with a real and urgent problem?
  
• 2. Does the law address this problem in a logical way?
  
• 3. Does the law limit freedom of religion as little as possible?
  
• 4. Do the benefits of the law outweigh the harm caused by limiting a right protected by the Charter?

The restriction will be justified only if the judges can answer “yes” to all these questions. If the answer to even one question is “no”, the law is not valid or must be changed.


Question 1. Photos on driver’s licences help prevent theft of the driver’s identity. Identity theft is a real problem. The Supreme Court decided the law met this part of the test.

Question 2. Did the Alberta law address this problem in a logical way? The majority of judges decided that the photo requirement was an effective and logical way to address this problem.

Question 3. The Supreme Court also found that the photo requirement was the most practical option for dealing with the problem. The judges therefore concluded that there was no other possible government measure that would place smaller restrictions on religious freedom.

Question 4. Do the benefits of the law outweigh the harm caused by limiting the religious freedom of the Hutterites? The judges answered “yes” to this question given the importance of preventing identity theft. The judges also noted that the Hutterites could get around in ways other than driving. They could use public transit, for example.

Conclusion
The Supreme Court therefore concluded that the photo requirement on driver’s licences did restrict the religious freedom of the Hutterites, but that the restriction was justified. The Alberta law passed the test.