McGill Law Journal ~ Revue de droit de McGill
AN EXEMPTION FOR SINCERE BELIEVERS: THE
CHALLENGE OF ALBERTA V. HUTTERIAN BRETHREN
OF WILSON COLONY
CASE COMMENT
Sara Weinrib*
In Alberta v. Hutterian Brethren of Wilson Colony, the
Supreme Court of Canada reconfigured its approach to sec-
tion 1 of the Canadian Charter of Human Rights and Free-
doms by holding that the final step of the R. v. Oakes test
the requirement of proportionality between a measures
salutary and deleterious effectsprovided the critical
framework for its analysis. The author suggests that the
Courts emphasis on the last step of the Oakes test was not
the most appropriate response to the specific minimal im-
pairment argument Alberta presented. Alberta argued that
the reason it could not safely offer an exemption from its li-
cence photo requirement to Hutterites who objected to pho-
tos on religious grounds was because Syndicat Northcrest v.
Amselem restricted government inquiries into the sincerity
of religious beliefs. Ontario intervened in support of Al-
bertas concerns. Although the Court did not address this
minimal impairment argument, the author argues that it
reflects an unnecessarily strict reading of how Amselems
guidelines would apply in this context. In support, the au-
thor presents an exemption that would have cohered with
Amselem and achieved Albertas safety objectives. The au-
thor then argues more broadly that the provinces concerns
in Hutterian Brethren demonstrate the critical role the
minimal impairment step of the Oakes test plays in generat-
ing solutions to clashes between laws of general application
and minority religious practices. The Courts new emphasis
on the proportionate effects test, in contrast, may unfortu-
nately discourage both parties from formulating potentially
innovative alternatives.
Dans laffaire Alberta c. Hutterian Brethren of Wilson
Colony, la Cour suprme du Canada a reconfigur son
approche quant larticle 1 de la Charte canadienne des
droits et liberts en statuant que la dernire tape du critre
tabli dans R. c. Oakes (soit la condition de proportionnalit
entre les effets salutaires et dltres dune mesure) formait
le cadre essentiel de son analyse. L’auteure suggre que
laccent mis par la cour sur cette dernire tape du critre
Oakes ne reprsentait pas la meilleure rponse aux
arguments spcifiques avancs par lAlberta en matire
datteinte minimale. LAlberta soutenait que la province ne
pouvait exempter les huttrites de l’exigence de prise de
photo de permis, mme sils sy opposaient pour des motifs
religieux. La province justifiait cette position la lumire de
son interprtation de la dcision Syndicat Northcrest c.
Amselem, selon laquelle les gouvernements ne pouvaient
enquter sur
la sincrit des croyances religieuses.
LOntario, en tant quintervenant, a appuy les arguments
de lAlberta. Bien que la cour nait pas abord lanalyse de
latteinte minimale, lauteure suggre que les provinces ont
interprt Amselem de faon inutilement stricte. Lauteure
propose ainsi une exemption qui adhre aux critres
dAmselem tout en remplissant les objectifs de lAlberta en
matire de scurit. De faon plus gnrale, lauteure stipule
que la proccupation des provinces dans Hutterian Brethren
dmontre le rle critique que joue le critre de latteinte
minimale dans Oakes pour gnrer des solutions aux conflits
entre les lois dapplication gnrale et les pratiques
religieuses minoritaires. Par contraste, laccent mis par la
cour sur le critre des effets proportionnels pourrait
malheureusement dcourager les parties de formuler des
alternatives potentiellement novatrices.
* Student-at-Law, Constitutional Law Branch, Ministry of the Attorney General of On-
tario. The opinions expressed in this paper are mine alone and do not represent the
views of the government of Ontario. This paper was written as an independent research
project at the University of Toronto Faculty of Law under the supervision of Professor
Lisa Austin, whom I wish to thank for her guidance, insightful comments, and encour-
agement. I also wish to thank Robert E Charney, Carol Rogerson, and the reviewers of
the McGill LJ for their feedback on prior drafts. An earlier version of this paper was
awarded the Patricia Julia Myhal Scholarship in legal writing.
Citation: (2011) 56:3 McGill LJ 719 ~ Rfrence : (2011) 56 : 3 RD McGill 719
Sara Weinrib 2011
720 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Introduction
I.
II.
III.
The Amselem Test for Sincere Religious Belief
The Shadow Amselem Cast over Hutterian Brethren
A. Albertas and Ontarios Submissions
B. The Supreme Court of Canadas Response
An Exemption for Sincere Believers
A. Drafting an Exemption
B. Does this Exemption Cohere with Amselem?
C. Does this Exemption Undermine Albertas Objectives?
D. Would the Supreme Court of Canada Have Accepted
this Exemption?
Conclusion: Future Subsection 2(a) Challenges and the Role of
the Minimal Impairment Test
721
724
728
729
733
735
735
737
743
746
747
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 721
Introduction
In 2003, Alberta terminated the exemptions it previously offered to
drivers who objected to licence photos on religious grounds.1 The Hutter-
ites interpret the Second Commandment to forbid them from having their
photos taken and therefore objected to the change of policy as a violation
of their right to freedom of religion under subsection 2(a) of the Canadian
Charter of Rights and Freedoms.2 Alberta conceded this point, but argued
that this infringement was justified according to the three-step test in R.
v. Oakes for establishing the justification of a legislative measure under
section 1 of the Charter.3 Although the Hutterites were successful at trial
and at the Alberta Court of Appeal, the Supreme Court of Canada nar-
rowly upheld Albertas amendment as a reasonable limit on the Hutter-
ites rights.4
Hutterian Brethren is noteworthy for its lengthy discussion of the last
step of the Oakes test, which requires proportionality between a meas-
ures salutary and deleterious effects.5 This step had not previously played
a significant role.6 Nevertheless, Chief Justice McLachlin affirmed that
1 The statutory basis for these exemptions was Albertas Operator Licensing and Vehicle
Control Regulation (Alta Reg 320/2002, s 14(1)(b)), which gave the Registrar discretion
to determine in what circumstances a photo was required: Before issuing or renewing
an operators licence … the Register … may require an image of the applicants face, for
incorporation in the licence. The amendment eliminated this discretion by replacing
may with must: Operator Licensing and Vehicle Control Amendment Regulation,
Alta Reg 137/2003, s 3, amending Operator Licensing and Vehicle Control Regulation
Alta Reg 320/2002, s 14(1)(b). See also Alberta v Hutterian Brethren of Wilson Colony,
2007 ABCA 160, 417 AR 68 at para 4 [Hutterian Brethren (CA)].
2 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),
1982, c 11 [Charter]. The Second Commandment prohibits making an idol, or any like-
ness of what is in heaven above or on the earth beneath: Exodus 20:4; Deuteronomy
5:8. See also Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (Factum of
the Appellant at para 41 [FOA]).
3 [1986] 1 SCR 103, 26 DLR (4th) 200 [Oakes].
4 Alberta v Hutterian Bretheren of Wilson Colony, 2009 SCC 37, [2009] 2 SCR 567 [Hutte-
rian Brethren]. At the Alberta Court of Queens Bench, LoVecchio J held that the mini-
mal impairment test was not met and restored the pre-2003 regime (Hutterian Brethren
of Wilson Colony v Alberta, 2006 ABQB 338, 57 Alta LR (4th) 300 at para 39). At the
Alberta Court of Appeal, Conrad and OBrien JJA also held that the amendment did
not minimally impair the Hutterites rights (Hutterian Brethren (CA), supra note 1 at
para 46, Slatter JA dissenting).
5 For a detailed analysis of the Courts application of this step, see Sara Weinrib, The
Emergence of the Third Step of the Oakes Test in Alberta v Hutterian Brethren of Wil-
son Colony 68:2 UT Fac L Rev [forthcoming in 2011].
6 Frank Iacobucci described this step to require only a resume of previous analysis
(Judicial Review by the Supreme Court of Canada Under the Canadian Charter of
Rights and Freedoms: The First Ten Years in David M Beatty, ed, Human Rights and
722 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the third step of the Oakes test provided the critical methodological
framework to assess Albertas regulation. On this basis, she then con-
cluded that the salutary effects of Albertas amendment outweighed its
detrimental effects on the Hutterite claimants rights. Justice Abella, who
wrote the principal dissent, also affirmed the critical significance of the
third step but concluded that the regulations deleterious effects out-
weighed its marginal security benefits. Justice LeBel in a separate dis-
sent, supported by Justice Fish, called for a return to the centrality of the
Courts minimal impairment test, but did not elaborate on the conclusions
the minimal impairment test would have called for in this instance.
In this article, I consider whether the Courts emphasis on the last
step of the Oakes test was an appropriate response to the specific minimal
impairment argument Alberta presented. The minimal impairment test
requires the government to demonstrate that its impugned law impairs
the right in question no more than is necessary to accomplish its desired
objective.7 The Court accepted that Albertas objective in terminating its
exemptions was to [maintain] the integrity of the drivers licensing sys-
tem in a way that minimize[d] the risk of identity theft.8 However, in its
minimal impairment submissions, Alberta clearly stated that continuing
to offer the exemption to Hutterites and other sincere religious believers
would not undermine this objective. Albertas position was, rather, that it
could not safely offer this exemption after Syndicat Northcrest v. Amse-
lem, a Supreme Court of Canada decision restricting judicialand pre-
sumably also governmentalinquiries into the sincerity of religious be-
liefs.9 Alberta thus concluded that an amendment terminating exemptions
constituted a minimal impairment of the Hutterites rights. Ontario in-
tervened in support of Albertas concerns; it then addressed them by pro-
posing an alternative exemption model that it acknowledged potentially
contravened Amselem.
This article argues that Ontarios and Albertas reading of Amselem
was unnecessarily strict, and that the Court, by failing to analyze this
reading, missed a critical opportunity to assess how Amselems guidelines
Judicial Review (Dordrecht: Martinus Nijhoff, 1994) 93 at 121). Peter Hogg similarly
concluded that this [proportionate effect] step has no work to do, and can safely be ig-
nored (Constitutional Law of Canada, 5th ed (Scarborough, Ont: Thomson Carswell,
2007), vol 2 at 153. See also Pierre Blanche, The Criteria of Justification Under Oakes:
Too Much Severity Generated Through Formalism (1991) 20:2 Man LJ 437 at 443:
[T]he third step has no real weakening impact on the first two steps. It comes too late
in the process … it seems that it is a step that should almost never be reached.
7 For a discussion of the transformations the minimal impairment test has undergone
since Oakes, see infra note 50.
8 Hutterian Brethren, supra note 4 at para 42.
9 2004 SCC 47, [2004] 2 SCR 551 [Amselem].
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 723
would apply in this context. This argument proceeds in three sections.
Section I discusses the Amselem test for the demonstration of sincere be-
lief, reviewing the framework Justice Iacobucci put in place as well as the
questions he left open for future litigation. Section II describes the shadow
Amselem cast over the Hutterian Brethren litigation by recounting Al-
bertas and Ontarios concerns with Amselem and the Courts response to
these submissions. Section III argues that Alberta and Ontario construed
Amselem unnecessarily strictly, and proposes an exemption that would, it
argues, cohere with Amselem while protecting Albertas objectives. Such
an exemption would have met the minimal impairment test and made it
unnecessary for the Court to turn to the proportionate effects test in this
instance.
What is at stake in this extended treatment of a line of argument to
which the Court did not respond? Clashes between laws of general appli-
cation and minority religious practices are likely to escalate in the future
as a result of broad factors such as the growth of the administrative
state,10 the development of technologies that may aid the state in address-
ing security concerns,11 the rise of immigration from communities with
different conceptions of the significance of seemingly neutral require-
ments,12 and the greater secularization of Canadian society as a whole.13
In Hutterian Brethren, the Court chose to consider such clashes in the
third step of the Oakes test rather than the second. But the provinces
concern as to the proper application of the Amselem ruling demonstrates
10 Paul Horwitz asserts that as the reach of the administrative state extends even further
into every aspect of life, law is bound to disturb an increasing number of religious prac-
tices. (The Sources and Limits of Freedom of Religion in a Liberal Democracy: Section
2(a) and Beyond (1996) 54:1 UT Fac L Rev 1 at 3). More particularly, Moin Yahya re-
flects on the significant role drivers licences have played in the growth of the adminis-
trative state: When the automobile was invented over 100 years ago, few could have
imagined that the piece of paper certifying the competence of its drivers would become a
major instrument of state control in the 21st century. Drivers Licence Photos: Secu-
rity Concerns Shouldnt Trump Religious Freedom The Lawyers Weekly (28 August
2009), online:
11 Bruce Ryder, The Canadian Conception of Equal Religious Citizenship in Richard J
Moon, ed, Law and Religious Pluralism in Canada (Vancouver: UBC Press, 2008) 87 at
100. In this respect, Alberta argued that two recent developments justified its manda-
tory photo requirement: There are, first, threats to the public that did not exist in 1974,
which, second, we may now reduce with facial recognition technology and digital photos
of licensees. Hutterian Brethren, FOA, supra note 2 at para 19.
12 Dieter Grimm notes that new lines of conflict have appeared as a consequence of im-
migration: General laws that do not have religious implications in Western countries
or reflect the Christian tradition of the Western world enter into conflict with the reli-
gious norms of the immigrants (Conflicts Between General Laws and Religious
Norms (2009) 30:6 Cardozo L Rev 2369 at 2370-71).
13 Horwitz, supra note 10 at 3.
724 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
the critical role the minimal impairment test plays in responding to these
escalating tensions; it is at this stage in the analysis that the Court can
scrutinize the legislatures reasons for not providing an alternative and
remove any barriers that may have arisen due to uncertainty as to the na-
ture or scope of the Charter guarantee. If the Court does not respond to
these questions at this stage, it may restrict the legislatures ability to
protect all of its citizens and the rights they bear.
I. The Amselem Test for Sincere Religious Belief
This section reviews the framework for freedom of religion that Jus-
tice Iacobucci set out in Amselem, considering in particular how this
framework applied to the particular facts of this case as well as the guide-
lines it provided for future litigation. It concludes by noting some particu-
lar issues Amselem left unresolvedissues squarely raised by Alberta and
Ontario in Hutterian Brethren. It is important to lay out the facts and
reasoning in Amselem in some detail in this section, as the sections that
follow will return to these passages to assess Albertas and Ontarios read-
ings of Amselem, as well as the constitutionality of my proposed exemp-
tion.
In Amselem, Orthodox Jews, who co-owned condominium units in
Montreal, asserted a right to build a succah on their balconies to celebrate
a nine-day festival.14 The syndicate of co-ownership claimed that this ac-
tion violated a bylaw prohibiting alterations of its balconies, and sought a
permanent injunction prohibiting erection of these structures. It proposed
that Jewish residents set up a communal succah in the garden instead.15
The parties called experts at trial who differed as to whether Jewish law
required Jews to erect individual succahs: the applicants expert, Rabbi
Ohana, testified that the biblical obligation to dwell joyously in a succah
required Jews to erect their own succahs when factors such as the trans-
port of children meant that a communal succah would cause distress; the
respondents expert, Rabbi Levy, denied that such factors obligated Jews
to erect their own succahs.16
14 Iacobucci J defined a succah as a small enclosed temporary hut or booth, traditionally
made of wood or other materials such as fastened canvas in which Jews are com-
manded to dwell temporarily during the festival of Succot (Amselem, supra note 9 at
para 5). Although the word condominium does not appear in the case, it is clear from
discussion of the parties relationship under Quebec law that it may be usefully sum-
marized by use of this term, which is familiar in the common law provinces: Hutterian
Brethren, FOA, supra note 2 at para 68, n 50,
15 Amselem, supra note 9 at para 13.
16 Ibid at paras 23, 73.
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 725
Justice Iacobucci held that the claimants rights to religious freedom
had been violated. In doing so, he rejected the notion that the Court could
determine a subsection 2(a) claim by assessing the doctrinal interpreta-
tions of competing religious authorities. Instead, he stressed the primacy
of subjective articulations of belief over the objective endorsement of these
beliefs:
[F]reedom of religion consists of the freedom to undertake practices
and harbour beliefs, having a nexus with religion, in which an indi-
vidual demonstrates he or she sincerely believes or is sincerely un-
dertaking in order to connect with the divine or as a function of his
or her spiritual faith, irrespective of whether a particular practice or
belief is required by official religious dogma or is in conformity with
the position of religious officials.17
Justice Iacobucci thus affirmed that subsection 2(a) protects sincere indi-
vidual beliefs or practices even if a religious leader denies their signifi-
cance.18
periences that subsection 2(a) protects:
Justice Iacobucci then demarcated a complex spectrum of religious ex-
[P]rovided that an individual demonstrates that he or she sincerely
believes that a certain practice or belief is experientially religious in
nature in that it is either objectively required by the religion, or that
he or she subjectively believes that it is required by the religion, or
that he or she sincerely believes that the practice engenders a per-
sonal, subjective connection to the divine or to the subject or object of
his or her spiritual faith, and as long as that practice has a nexus
with religion, it should trigger the protection … of s.2(a) of the Cana-
dian Charter.19
This critical passage identified three potential sources of sincere reli-
gious belief. First, belief may arise from the objective requirements of a
religion. Second, it may be based on a claimants subjective beliefs as to
the objective requirements of a religion, affirming that practices whose
obligatory nature is a matter of controversy within the religious commu-
nity are also protected. Finally, beliefs are protected even if they have no
basis in a religions objective requirements, as long as they have a nexus
with religion and engender a subjective connection to the divine.
17 Ibid at para 46.
18 Although the dispute in Amselem arose under the Quebec Charter of Human Rights
and Freedoms protection of freedom of religion (RSQ c C-12, s 3), Iacobucci J repeat-
edly affirmed that the principles he established also applied to the guarantee of freedom
of religion that is set out in ss 2(a) of the Charter: Amselem, supra note 9 at paras 40,
57, 66, 69.
19 Ibid at para 69 [emphasis added, original emphasis omitted].
726 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Justice Iacobuccis first two categories seem relatively straightfor-
ward. With respect to the first category, most religions have a core group
of uncontested objective requirements, such as attending worship ser-
vices. The claimants in Amselem, on the other hand, seem to fall into the
second category, since they believed that their religion mandated them to
set up individual succahs in this instance, despite Rabbi Levys denial of
this obligation. Justice Iacobuccis third categorybeliefs that engende[r]
a personal, subjective connection to the divine and have a nexus with re-
ligionis the most difficult to understand. This difficulty arises partly
because the claimants in Amselem do not provide an example of this kind
of belief. However, as I elaborate below, it is also because this category
brings to light some of the deepest tensions involved in the liberal states
protection of religion.
into this third category:
Justice Iacobucci provided two examples of believers who seem to fall
Jewish women, for example, strictly speaking, do not have a bibli-
cally mandated obligation to dwell in a succah during the Succot
holiday. If a woman, however, nonetheless sincerely believes that
sitting and eating in a succah brings her closer to her Maker, is that
somehow less deserving of recognition simply because she has no
strict obligation to do so? … Should an individual Jew, who may
personally deny the modern relevance of the literal biblical obliga-
tion or commandment, be precluded from making a freedom of re-
ligion argument despite the fact that for some reason he or she sin-
cerely derives a closeness to his or her God by sitting in a succah?
Surely not.20
Justice Iacobuccis two figuresthe observant Jewish woman and
the liberal Jewish manrepresent two various responses of those who
identify with a traditional religion while accepting certain modern liberal
precepts. The observant Jewish woman may not sincerely believe that
she is under an obligation to dwell in a succah, given traditional Juda-
isms gender-based allocation of obligations. Yet she claims that subsec-
tion 2(a) should protect her adoption of practices traditional leaders re-
quire only of men. The liberal Jewish man, on the other hand, seems to
be a man who is under traditional obligation to dwell in a succah (at least
according to some rabbis), but has accepted secular precepts and, as a re-
sult, no longer believes he is under this obligation. He calls for subsection
2(a) to protect a practice that is fulfilling for him even though his inter-
pretation of this practice no longer accords with orthodox precepts.
These figures illustrate the many complex ways religious identifica-
tion may develop in a modern liberal state: the observant Jewish woman
20 Ibid at para 68.
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 727
expresses a sincere belief in a practice, but is not recognized by the relig-
ion as the appropriate person to hold these beliefs; the liberal Jewish
man, in contrast, meets the formal criteria for recognition, yet does not
sincerely believe in the literal biblical obligation. For Justice Iacobucci,
the liberal commitment to state neutrality clearly calls the state to protect
a broader spectrum of religious experience than orthodox leaders would
sanction. As Grimm similarly reflects, in a modern constitutional democ-
racy, religious freedom must not be turned into a protection of ortho-
doxy.21
On a theoretical level, Justice Iacobuccis judgement admirably at-
tempts to protect religious practices in both their traditional and modern
iterations. However, it also generates a complex practical problem: under
Amselem, the court and the government cannot simply echo a religious
leaders identification of the beliefs and practices that merit protection.
Rather, they must conduct their own assessment of whether particular
practices merit protection under subsection 2(a). How is the court or gov-
ernment to assess the sincerity of these claims?
Justice Iacobucci set out some broad guidelines. First, he affirmed that
the religious claimant had the burden of demonstrating sincere religious
belief, and that the court was qualified to inquire into sincerity of a
claimants belief, where sincerity [was] in fact at issue.22 However, he
cautioned that inquiries should be as limited as possible and were in-
tended only to ensure that a presently asserted religious belief is in good
faith, neither fictitious nor capricious, and that it is not an artifice.23
claimants use of objective evidence to demonstrate sincere belief:
A claimant may choose to adduce expert evidence to demonstrate
that his or her belief is consistent with the practices and beliefs of
other adherents of the faith. While such evidence may be relevant to
a demonstration of sincerity, it is not necessary. Since the focus of
the inquiry is not on what others view the claimants religious obli-
gations as being, but rather what the claimant views these personal
religious obligations to be, it is inappropriate to require expert opin-
ions to show sincerity of religious belief. An expert or an authority
on religious law is not the surrogate for an individuals affirmation of
what his or her religious beliefs are.24
Justice Iacobucci then provided the following specific directions on a
21 Supra note 12 at 2374.
22 Amselem, supra note 9 at para 51.
23 Ibid at para 52.
24 Ibid at para 54 [emphasis added].
728 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Justice Iacobuccis assertion that the court cannot require expert opin-
ions as to the sincerity of religious belief seems consistent with his recog-
nition of a complex spectrum of religious experiences. Requiring a claim-
ant to provide evidence of a religious leaders approval of the practice at
issue turns freedom of religion into a protection of orthodoxy.25
The facts of Amselem enabled Justice Iacobucci to provide these guide-
lines without directly addressing two difficult and interrelated questions.
The first question is what sort of evidence the court or state can request in
order to assess sincerity of religious practice when sincerity is in fact at
issue (sincerity of belief was hardly at issue in Amselem; as Ontario later
submitted to the Supreme Court in Hutterian Brethren, it was highly
unlikely anyone would want to build a succah for any reason other than
sincere religious belief26). The second question is how broadly to construe
Justice Iacobuccis third category, the protection of practices that en-
gende[r] a personal, subjective connection to the divine and have a
nexus with religion (the Jewish claimants in Amselem did not provide
examples of this category; instead, they claimed the right to a practice
with a scriptural basis whose interpretation was contested within their
religious communityJustice Iacobuccis second category.) This third
category could be interpreted broadly to protect idiosyncratic spiritual be-
liefs that are not associated with an identified religious community. If it is
interpreted in this manner, to bring these two questions together, what
evidence can the state require to assess a claim that is not associated with
an identified religion, in a situation where sincerity is at issue, and the
harm posed by an insincere claim is significant? This question formed the
basis of Albertas and Ontarios critiques of Amselem, to which we now
turn.
II. The Shadow Amselem Cast over Hutterian Brethren
This section considers the Courts minimal impairment analysis in
Hutterian Brethren from the perspective of both the submissions and the
ultimate ruling. Part A reviews Albertas and Ontarios submissions to the
Court. Alberta declared it was not possible for it to provide an exemption
after Amselem. Ontario, after echoing Albertas concerns, proposed an al-
ternative exemption model that set aside some of the central tenets of
Amselem. Part B considers the Supreme Court of Canadas response to
these submissions, and suggests that, since the Court did not address Al-
bertas and Ontarios readings of Amselem, the debate between Chief Jus-
25 Grimm, supra note 12 at 2374.
26 Alberta v Hutterian Brethren of Wilson Colony, 2009 SCC 37 (Factum of the Intervener,
Attorney General of Ontario at para 18 [FOI]).
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 729
tice McLachlin and Justice Abella as to the extent to which the Court, in
its minimal impairment analysis, should defer to Alberta was premature.
A. Albertas and Ontarios Submissions
In its minimal impairment submissions, Alberta repeatedly admitted
to the Court that it was able to offer an exemption to the Hutterites and
other sincere religious believers without compromising its objectives:
We note that our concern is not the granting of an exception to peo-
ple who assert a religious objection to the photograph requirement
as such. Our concern is instead the opportunities that an exemption
affords wrongdoers.27
Similarly:
[O]ur concern is not about numbers as such, or with the numbers of
claims for exemption that might be made in good faith. Alberta in-
creased the security of the Operators License because wrongdoers
lie to take advantage of its currency as identification.28
In these passages, Alberta made clear that offering exemptions to sincere
believers would not undermine the integrity of its licensing system. Al-
berta straightforwardly acknowledged that it could provide an exemption
to the claimants at hand without impairing its objectives, as long as this
exemption did not enable insincere claimantswrongdoersto apply
successfully.
The province then argued that the reason it could not offer this ex-
emption to the claimants before it was because Amselem restricted its
ability to distinguish between sincere and insincere claimants:
Amselem implies structural constraints on any religious exemption
from the photo requirement. The issue in this case is not whether
the Respondents, as specific claimants, may safely be granted an ex-
emption from the photo requirement. Rather, the issue is whether
the Respondents and everyone else who is able to claim the benefit of
religious freedom as described in Amselem may safely be granted an
exemption from the photo requirement.
…
[T]he foundational characteristic of freedom of religionits subjec-
tivitycompetes directly with the essential purpose of the photo re-
quirement, which impedes those who would falsely obtain a drivers
licence.29
27 Hutterian Brethren, FOA, supra note 2 at para 65 [emphasis in original].
28 Ibid at para 73 [emphasis in original].
29 Ibid at paras 70, 73 [emphasis in original].
730 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Albertas claim in these passages was that Amselems conception of relig-
ion as subjective situated fraudulent and sincere professions of religious
belief within an identical structure: both articulated an idiosyncratic pri-
vate sphere that was not objectively verifiable. It was thus not possible for
the province to provide an exemption after Amselem.
Albertas reading of Amselem is troubling. How can the Charter
prevent the government from distinguishing between fraudulent and
sincere religious beliefs, given their dramatically different normative
values to society? The presence of religious minorities is a value to be
preserved,30 while those who make fraudulent claims to obtain false
documentation undermine the states ability to protect its citizens and
should be prevented. Alberta thus problematically intimated in these
passages that the Courts construal of subsection 2(a) in Amselem
prevented the province from recognizing the religious minorities the
Charter obligates it to protect.
Ontario supported Albertas contentions, but proposed a different solu-
tion. It accepted that Amselem made it difficult for provinces to draft an
exemption for the Hutterites without rendering themselves vulnerable to
many false claims.31 However, whereas Alberta declared it was categori-
cally not possible for the province to provide this exemption after Amse-
lem, Ontario suggested that Amselem should be distinguished to allow the
province to craft a narrow and highly structured exemption in situations
where sincerity of belief was at issue and the potential for harm from an
insincere profession of belief was great.32
Ontario presented its own exemption to the photo-licence requirement
as an example of such an exemption. Ontario currently provides exemp-
30 S 27 of the Charter (supra note 2) affirms the value of religious minorities to Canada by
stating, This Charter shall be interpreted in a manner consistent with the preserva-
tion and enhancement of the multicultural heritage of Canadians. For a discussion of
the role s 27 could have played in the Courts analysis in Hutterian Brethren, see Robert
E Charney, How Can There Be Any Sin in Sincere? State Inquiries into Sincerity of
Religious Belief (2010) 51 Sup Ct L Rev (2d) 47 at 69-72.
31 Ontario stated that
in light of the Courts analysis in Amselem, provincial governments face a dif-
ficult policy conundrum. Is it possible to draft an exemption from the manda-
tory photo requirement that will exempt the Respondents members (who are
a discrete community with a long established and easily verified sincere reli-
gious objection to being photographed) but will not exempt false claims of re-
ligious belief[?] (Hutterian Brethren, FOI, supra note 26 at para 19).
This argument is elaborated by Charney (supra note 30 at 56), who represented Ontario
in Hutterian Brethren.
32 Hutterian Brethren, FOI, supra note 26 at para 18.
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 731
tions to applicants who can establish the following three indicia of sincere
religious belief:
1. Membership in a registered religious organization that prohibits
personal photographs.
2. A letter of support from a religious leader of this organization.
3. Scriptural passages that substantiate the religious prohibition.33
Although Ontarios courts have yet to rule on the constitutionality of
Ontarios exemption,34 each prong seems to challenge Amselem:
1. The requirement of membership in a community that prohibits
personal photographs undermines Justice Iacobuccis affirmation
that subsection 2(a) protects practices the obligatory nature of
which is a matter of controversy.35
2. The requirement of a religious leaders letter contradicts Justice
Iacobuccis exhortation that it was inappropriate to require expert
opinions to show sincerity of religious belief.36
3. The requirement that the claimants belief be substantiated by a
scriptural passage seems to create a narrower basis for protection
than Amselems broad protection of practices that have a nexus
with religion.37
Ontario admitted in its factum to the Court that this model ap-
pear[ed], on its face, to be inconsistent with this Courts reasons in Amse-
33 These criteria were developed under a policy entitled Permanent Valid Without Photo
(PVWP). The statutory basis for this policy is ss 32(13) of the Highway Traffic Act (RSO
1990, c H8), which grants the Minister discretion to require a digital photo for drivers
licences. See also Hutterian Brethren, FOI, supra note 26 at paras 2-3.
34 The constitutionality of these requirements was challenged in Bothwell v Ontario (Min-
ister of Transportation) (2005), 24 Admin LR (4th) 288, 193 OAC 383 (Div Ct) [Bothwell
cited to Admin LR], but the Court concluded that since the applicant lacked sincere re-
ligious belief, it was not necessary to consider this challenge.
35 Iacobucci J made this distinction explicit in a passage not discussed in Section 1, above,
in which he declared that any incorporation of distinctions between obligation and
custom or, as made by the respondent and the courts below, between objective obliga-
tion and subjective obligation or belief within the framework of a religious freedom
analysis is dubious, unwarranted and unduly restrictive (Amselem, supra note 9 at
para 67). This distinction is also apparent in Iacobucci Js discussion of the observant
Jewish women and the liberal Jewish man: see text accompanying note 20.
The question of whether Ontarios requirement of membership in a religious com-
munity coheres with Amselem is discussed in detail in Section III.B, below (I conclude
that this requirement is consistent with Amselem).
36 Amselem, supra note 9 at para 54.
37 Ibid at para 69.
732 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
lem.38 However, it argued that the Court should distinguish the guide-
lines in Amselem to recognize Ontarios model in this circumstance
sinceunlike in Amselemthe potential harm posed by an insincere
claim was significant.39 Ontario concluded by stating that, Ontario agrees
with Alberta that, if Amselem precludes the limited approach used in On-
tarios PVWP, then no exemption would be the only alternative that
would meet the provinces policy objectives.40
Ontarios proposal reflects an attempt to escape the constitutional
irony of Albertas position, discussed above, in which the Courts definition
of freedom of religion prevented the province from protecting the claim-
ants before it. Nevertheless, it still accepts as its starting point both Am-
selems subjective definition of freedom of religion and Albertas under-
standing of Amselems restrictions on state inquiries into sincerity of be-
lief. As a result, Ontarios alternative is underinclusive, since not all the
believers whom Justice Iacobucci stated merited protection would be able
to meet its criteria.41
This underinclusiveness can be demonstrated through a story that has
circulated about an application Ontario reportedly denied.42 An Old Order
Amish man applied for Ontarios exemption, and included in his applica-
tion a letter from a church elder who confirmed the religious prohibition
against photographs, but stated that the Amish religion also prohibited
driving a car. The church elder then asserted that if the applicant was
prepared to violate religious precepts by driving a car, he should have no
objection to having his photo taken. Ontario reportedly denied the Amish
mans application on the basis of this letter.43 However, one could specu-
late that the Amish man in this story sincerely believed in the prohibition
against taking photographs, and yet did not sincerely believe in the pro-
hibition against driving. Perhaps both prohibitions are contested, or per-
haps the applicant had a need to drive that he reconciled with his faith in
a manner not accepted by the church elder. In such cases, Ontarios ex-
38 Hutterian Brethren, FOI, supra note 26 at para 21.
39 See ibid at para 18.
40 Ibid at para 21.
41 It is unclear how this underinclusiveness plays out in practice in Ontario. Ontario
stated that since its policy had been introduced, it had received eighty applications for
exemptions and had not yet granted one, since all applicants either have not met the
Ministrys criteria or have not completed the application process, but it did not elabo-
rate on the basis for these rejections (ibid at para 6).
42 Charney relates this story but notes that it may be apocryphal: supra note 30 at 58, n
43. I rely on it only as an example of a sincere believer who would be excluded from On-
tarios exemption.
43 Ibid.
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 733
emption may turn into a protection of orthodoxy, in that it enables the
positions of orthodox leaders to hold sway even if the individual claimants
can demonstrate the sincerity of their beliefs.
Of course, since the claimants in Hutterian Brethren easily met On-
tarios criteria, it was open for the Court to accept Ontarios exemption
and leave the question of the claimants potentially excluded from it for
another day. Nevertheless, in Section III, I consider whether Ontarios
proposal could be modified to better protect the full spectrum of religious
practices Justice Iacobucci identified in Amselem.
B. The Supreme Court of Canadas Response
The Supreme Court of Canada did not address Albertas and Ontarios
concerns with Amselem in Hutterian Brethren. Instead, Chief Justice
McLachlins majority judgment and Justice Abellas principal dissent each
accepted Albertas proposition that providing an exemption would under-
mine its objective of ensuring the integrity of its licensing system, while
diverging on the extent of the risk that providing an exemption would
pose to this objective.
Chief Jusice McLachlin began her minimal impairment analysis by
claiming that this case called for her to accord the legislature a measure
of judicial deference, since this was a complex social issu[e] where the
legislature may be better positioned than the courts to choose among a
range of alternatives.44 The chief justice accorded Alberta this deference
by refusing to calculate the precise extent to which providing an exemp-
tion undermined Albertas objectives:
The claimants argument that the reduction in risk would be low,
since few people are likely to request exemption from the photo re-
quirement, 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.45
Chief Justice McLachlin then concluded that even though it was diffi-
cult to quantify in exact terms how much risk of fraud would result from
permitted exemptions, it [was] clear that the internal integrity of the sys-
tem would be compromised by an exemption.46
Chief Justice McLachlins commitment to supporting the legislative
process led her to conclude that the minimal impairment analysis should
44 Hutterian Brethren, supra note 4 at para 53.
45 Ibid at para 59.
46 Ibid at para 81.
734 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
no longer be considered the critical framework for assessing whether in-
fringements of freedom of religion were justified:
Freedom of religion cases may often present this all or nothing di-
lemma. Compromising religious beliefs is something adherents may
understandably be unwilling to do. And governments may find it dif-
ficult to tailor laws to the myriad ways in which they may trench on
different peoples 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
that the state goal is valid, but at the stage of proportionality of ef-
fects.47
In this critical passage, the chief justice charts a new course for sub-
section 2(a) litigation, based on the difficulty of governments tailoring
laws so as not to infringe the myriad of beliefs found in Canadas multi-
cultural society. Yet in charting this new course, Chief Justice McLachlin
did not address the particular reason Alberta found it difficult to tailor
this exemption.
Justice Abella criticized Chief Justice McLachlins approach as overly
deferential, but she also did not consider Albertas specific concern with
Amselem. Instead, Justice Abella stressed that the government had the
onus of proving that the risk posed by an exemption was significant in
practice, and determined that in this case, Alberta had not met this bur-
den: there was no evidence from the government to suggest … why the
exemption [was] no longer feasible, or so dramatically obstructs the gov-
ernments objective that it cannot be re-instated.48 In coming to this con-
clusion, Justice Abella did not reference Albertas argument that an ex-
emption was no longer feasible given the strictures of Amselem. Likewise,
Justice Abella would have declared Albertas mandatory photo require-
ment unconstitutional, in the absence of the availability of an exemption
on religious grounds,49 but she did not offer guidance as to how Alberta
could draft such an exemption in a manner that cohered with Amselem.
It is tempting to attribute Chief Justice McLachlin and Justice Abellas
contrasting approaches to the minimal impairment test to their different po-
sitions in the Courts well-known debate as to the appropriate level of defer-
ence to the legislature: Chief Justice McLachlin called for strong deference
while Justice Abella affirmed the states burden to substantiate its projection
of risks.50 However, it seems to me that Albertas and Ontarios particular
47 Ibid at para 61 [emphasis added].
48 Ibid at para 156.
49 Ibid at para 176.
50 As is well known, the minimal impairment test has undergone a number of transforma-
tions. In Oakes, Dickson CJC articulated this test to require cogent and persuasive
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 735
concerns should have attracted more attention. Alberta did not argue that
judicial crafting of an exemption would burden its legislative role. Rather,
Alberta claimed that the Courts past jurisprudence restricted its ability to
continue to provide an exemption on religious grounds, even though the reli-
gious minority requesting the exemption posed no risk. It sought guidance
from the Court on an issue squarely within the Courts expertise and institu-
tional competence. Such guidance would have supported Albertas legislative
function, rather than curtailed it.
III. An Exemption for Sincere Believers
In this section, I consider how the Court could have responded to
Albertas and Ontarios concerns. Part A provides an alternative
interpretation of Amselem, different from that of Alberta and Ontario, and
proposes a three-pronged exemption that modifies Ontarios proposal
according to this reading. Part B elaborates on how each prong of this
proposal coheres with Amselems restrictions on state inquiries into
religious practice as I understand them. Part C argues that Alberta and
Ontario could have provided this exemption without impairing their
objective of protecting identity fraud, considering their articulations of
this objective as well as Canadian and American case law on this issue.
Finally, Part D speculates as to whether, had the Court been provided
with this alternative, Chief Justice McLachlin would have nevertheless
maintained that Alberta met the minimal impairment test by refusing to
provide an exemption, given the emphasis she placed on deference in her
minimal impairment analysis.
A. Drafting an Exemption
Before setting out my proposed exemption, it is necessary to return to
Albertas and Ontarios interpretations of Amselem and consider them in
more detail. Alberta stated in its submissions to the Court that [t]he subjec-
tive character of [the conception of religious freedom in Amselem] implies
that a person who claims a religious objection to the photo requirement with
evidence that the measure impaired rights as little as possible (supra note 3 at 138-
39). Yet almost immediately afterward, in R v Edwards Books and Art Ltd ([1986] 2
SCR 713, 35 DLR (4th) 1 [Edwards Books]) Dickson CJC expressed concern that such a
rigorous standard would impede the formation of laws intended to protect vulnerable
groups. Subsequently, the Court articulated other considerations that called for defer-
ence, such as laws premised on complex social science evidence, laws that reconcile the
interests of competing groups, and laws that allocate scarce resources. See Hogg, supra
note 6 at 149-53; Timothy Macklem & John Terry, Making the Justification Fit the
Breach (2000) 11 Sup Ct L Rev (2d) 575 at 589-94.
736 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
apparent conviction is presumptively entitled to an exemption.51 Ontario
similarly argued that [u]nless the province can rely on the kind of objective
criteria apparently rejected by this Court in Amselem, it cannot offer a reli-
gious exemption.52 Alberta and Ontario thus read Amselem to prohibit the
use of evidence to determine the subjective sincerity of belief.
This interpretation does not seem to me to follow necessarily from Jus-
tice Iacobuccis reasoning in Amselem. As discussed in Section I, Justice
Iacobucci contemplated that a claimants beliefs would be objectively verified
in several passages. First, he asserted that freedom of religion should not be
protected beyond the ability of claimants to demonstrate sincere belief, defin-
ing freedom of religion as the freedom to undertake practices and harbour
beliefs, having a nexus with religion, in which an individual demonstrates
that he or she sincerely believes.53 Although he cautioned that these inquiries
should be as limited as possible,54 he stressed that the Court was qualified
to inquire into the sincerity of a claimants belief, where sincerity [was] in
fact at issue.55 Applying these guidelines, Justice Iacobucci declined to as-
sess the claimants beliefs rigorously as to their obligation to erect individual
succahs. However, as Ontario noted, sincerity was not at issue in this case
since it was unlikely anyone would insincerely claim a right to build a suc-
cah.56 Since the sincerity of applicants for an exemption from a photo-licence
requirement is at issue, it is difficult to see how Amselem prohibits a more
comprehensive inquiry.
How could a more comprehensive inquiry be structured? Further in
his judgment, Justice Iacobucci made clear that a claimant could choose to
adduce any supporting material that would prove sincerity of belief, such
as letters from religious leaders, expert opinions, evidence of established
practices, evidence that the alleged belief was consistent with other cur-
rent religious practices, or general evidence supporting credibility.57 He
imposed only one restriction: the assessor could not require expert opin-
ionor, presumably, any other particular indicia of religious belief.58
51 Hutterian Brethren, FOA, supra note 2 at para 71.
52 Hutterian Brethren, FOI, supra note 26 at para 20. In Ontarios oral submissions it also
requested that the Court distinguish Amselem in order to permit the province to re-
quire objective verification of a shared religious belief as a condition to qualify for a reli-
gious exemption: Hutterian Brethren of Wilson Colony, 2009 SCC 37 (Oral argument,
Intervener [OAI]).
53 Amselem, supra note 9 at para 46 [emphasis added].
54 Ibid at para 52.
55 Ibid at para 51.
56 Hutterian Brethren, FOI, supra note 26.
57 Amselem, supra note 9 at paras 53-54.
58 Ibid at para 53.
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 737
Thus, Amselem did not limit the use of evidence to determine the subjec-
tive sincerity of belief; rather, it prohibited the province from requiring
that claimants prove that their leaders unanimously approved of their
particular manifestations of the belief at issue.59
it in line with the guidelines in Amselem:
For an applicant to be granted an exemption to the photo-licence re-
quirement, he or she must demonstrate sincere religious belief by estab-
lishing:
The following exemption modifies Ontarios proposal in order to bring
A. Membership in a religious community:
This may be demonstrated by a letter of support from
an established member of this community or by other in-
dicia of community membership.
B. That the objection to photographs arises from membership in this
religious community:
This may be demonstrated by evidence as to the origins
or basis of these practices, for example in religious texts.
C. Individual commitment to the practice of abstaining from taking
photographs:
This may be demonstrated by evidence of past or cur-
rent practice.
The exemption stipulates that the applicant has the onus of demonstrat-
ing sincere belief, which it divides into three distinct elements. It then
provides examples of what kinds of evidence the applicant could adduce to
demonstrate each of these elements. However, instead of singling out any
piece of evidence as determinative, it enables the applicant to choose what
evidence at the applicants disposal would best satisfy these criteria. The
province would then assess whether this evidence, in its totality, met the
burden of demonstrating sincere belief.
B. Does this Exemption Cohere with Amselem?
The first question to consider, in assessing the feasibility of my pro-
posed exemption, is whether it is consistent with Amselem. In this section,
I evaluate each prong of my exemption according to this standard.
59 The Alberta Court of Appeal interpreted Amselem similarly: [A]lthough Amselem may
limit the ability of the Province to require proof about the objective validity of an appli-
cants belief, it does not in any way limit the use of evidence to determine the subjective
sincerity of the belief(Hutterian Brethren (CA), supra note 1 at para 51).
738 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Prong A: Membership in a Religious Community
Prong A requires the claimant to prove membership in a particular re-
ligious community. This raises the question of whether such a require-
ment is consistent with Amselems broad protection of beliefs that engen-
der[s] a personal, subjective connection to the divine (Justice Iacobuccis
third category).60 As discussed in the conclusion to Section I, Justice
Iacobucci did not make clear how broadly he was willing to construe this
nexus. In other passages, he described religion in individualistic terms,
noting, for example, that freedom of religion revolves around the notion
of personal choice and individual autonomy and freedom.61 Alberta and
Ontario both expressed concern that this third category enabled Justice
Iacobucci to protect idiosyncratic spiritual beliefs, making it easier for
fraudulent claimants to claim an exemption.62 However, in this section, I
argue that, despite some of the individualistic language used in Amselem,
this decision did not protect beliefs that emerge in isolation for three rea-
sons.
First, Amselem did not provide the appropriate factual basis for the
Court to consider protecting idiosyncratic religious beliefs, since the
claimants belonged to a discrete religious community. Rather, at issue in
Amselem was whether the claimants had the right to observe individually
the precept of building a succah, or whether collective observance of this
practice (in a communal succah) would suffice. Responding to these facts,
Justice Iacobucci protected a range of doctrinal interpretations regarding
the obligations a Jewish holiday imposed on individual adherents.63 How-
ever, the facts did not enable him to consider whether religious beliefs
that emerge in isolation are protected.64
60 Supra note 9 at para 69.
61 Ibid at para 40.
62 Ontario argued to the Court that after Amselem it may no longer be possible to draft an
exemption that would not exempt claims based on personal, political or philosophical
concerns like privacy (which, as a conscientious objection may be easily confused with
or disguised as religious): Hutterian Brethren, FOA, supra note 2 at para 19. Ontario
also submitted in oral argument that the Court should distinguish Amselem as requir-
ing objective verification of a shared religious belief: Hutterian Brethren, OAI, supra
note 52 [emphasis added]. For Albertas submissions expressing this concern, see Hut-
terian Brethren, FOA, supra note 2 at para 70.
63 Iacobucci J asserted that religious beliefs that were not in conformity with the position
of religious officials were protected (Amselem, supra note 9).
64 The Supreme Court of Canada has emphasized the critical role facts play in decisions
that delineate Charter guarantees. In MacKay v Manitoba ([1989] 2 SCR 357 at 361, 61
DLR (4th) 385), Cory J asserted that Charter decisions should not and must not be
made in a factual vacuum. To attempt to do so would trivialize the Charter and inevita-
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 739
Second, the critical passage in which Justice Iacobucci stressed the
significance of preserving individual spiritual beliefs is heavily qualified.
Recall this passage, discussed above, in which Justice Iacobucci demar-
cated three potential sources of religious belief:
[P]rovided that an individual demonstrates that he or she sincerely
believes that a certain practice or belief is experientially religious in
nature in that it is either objectively required by the religion, or that
he or she subjectively believes that it is required by the religion, or
that he or she sincerely believes that the practice engenders a per-
sonal, subjective connection to the divine or to the subject or object of
his or her spiritual faith, and as long as the practice has a nexus
with religion, it should trigger the protection … of s. 2(a) of the Ca-
nadian Charter.65
Justice Iacobucci stipulated here that subsection 2(a) protects beliefs
where the practice engenders a personal, subjective connection to the di-
vinea quotation which admittedly raises the spectre of religions of
one. However, Justice Iacobucci immediately qualified this broad protec-
tion with the clause, [A]s long as the practice has a nexus with religion.
Thus, Justice Iacobucci did not demarcate a protection for spiritual be-
liefs that emerge in isolation from religion. Since Justice Iacobucci did
not define these terms, the question is whether religion includes those
with only one adherent. This interpretation seems doubtful to me because
it would rob Justice Iacobuccis qualification of any content; his qualifica-
tion would now read as an assertion that subsection 2(a) protects beliefs
that engender a subjective connection to the divine as long as they have a
nexus with beliefs that are idiosyncratic. Furthermore, Justice Iacobucci
used the word religion in a manner synonymous with religious commu-
nities elsewhere in this passage. For example, his assertion that subsec-
tion 2(a) protects practices that are subjectively believed to be required
by the religion would not make sense if Justice Iacobucci imagined that it
was possible for religion to consist of one persons spiritual beliefs, be-
cause in this case there would be no conflict between this persons subjec-
tive beliefs and the religions objective requirements. A reading of this
passage as protecting idiosyncratic religious beliefs is, therefore, difficult
to sustain in context.
Finally, Amselem did not engage with judicial and academic treat-
ments of this issue. On the judicial side, courts have struggled with how
to interpret subsection 2(a)s dual protection of freedom of conscience and
religion. Put simply, is religious thought one form of individual conscien-
bly result in ill-considered opinions. See also Danson v Ontario (AG), [1990] 2 SCR
1086 1100-101, 73 DLR (4th) 686.
65 Amselem, supra note 9 at para 69 [emphasis added]. See also text accompanying supra
note 19.
740 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tious thought, in which case idiosyncratic spiritual beliefs should be pro-
tected? Or can religious thought be distinguished from conscientious
thought on the ground that it emerges collectively? In the Supreme Court
of Canadas foundational cases on subsection 2(a), it stressed the similar-
ity between religious and conscientious thought: Chief Justice Dickson af-
firmed in R. v. Big M Drug Mart Ltd. that the purpose of protecting free-
dom of religion is the notion of the centrality of individual conscience;66
in Edwards Books he similarly described freedom of religion as containing
both individual and collective aspects.67 However, since these early
cases, the Court has rarely engaged with freedom of conscience as distinct
from freedom of religion, and there is no majority judgment on the issue.68
The critical literature is likewise conflicted. Whereas some assert that
a belief that is spiritual does not need to be shared by anyone else, as long
as it is sincerely held,69 others stress that the protection of religion rests
on the view that religious beliefs are an integral part of the individuals
cultural identity or membership.70 This tension reflects two competing
rationales for protecting freedom of religion: the first is the liberal com-
mitment to freeing autonomous individual beliefs from state interfer-
ence,71 and the second involves protecting minority groups.72 The conun-
66 [1985] 1 SCR 295 at 346, 60 AR 161.
67 Supra note 50 at 781.
68 Wilson Js famous concurring opinion in R v Morgentaler held that the decision to ter-
minate a pregnancy should be protected as a matter of conscience under ss 2(a), which
she defined as protecting personal morality which is not founded in religion ([1988] 1
SCR 30 at 178, 44 DLR (4th) 385). Lamer CJCs dissent to Rodriguez v British Colum-
bia (AG) echoed these reflections, maintaining that the Charter has established the es-
sentially secular nature of Canadian society and the central place of freedom of con-
science in the operation of our institutions ([1993] 3 SCR 519 at 553, 107 DLR (4th)
342).
69 Horwitz, supra note 10 at 10.
70 Richard Moon, Introduction: Law and Religious Pluralism in Canada in Richard
Moon, ed, Law and Legal Pluralism in Canada (Vancouver: UBC Press, 2008) 1 at 8.
Grimm also argues that [r]eligion presupposes a community that is united in its belief
in some truths of a transcendental nature and that develops common forms of worship
and interaction. One would [not] call … the transcendental assumptions of a single per-
son a religion (supra note 12 at 2373).
71 As Stephen L Carter notes, Liberals cherish religion, as they cherish all matters of pri-
vate conscience, and liberal theory holds that the state should do nothing to discourage
free religious choice: The Culture of Disbelief: How American Law and Politics Trivial-
ize Religious Devotion (New York, Anchor Books, 1994) at 977.
72 This rationale is buttressed by s 27 of the Charter, which requires the Charter to be in-
terpreted in a manner consistent with the preservation and enhancement of the multi-
cultural heritage of Canadians (supra note 2, s 27). In Wilson Js dissenting opinion in
Edwards Books, she argued that an interpretation of ss 2(a) that protected the religious
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 741
drum is this: if religious choice is viewed simply as an expression of pri-
vate conscience, what distinguishes religious and secular beliefs? As Jer-
emy Webber reflects, a definition that treats religious freedom as merely
a special case of the freedom to choose ones conception of the good fails to
account sufficiently for the singling out of religion.73
Returning to the particular context of Hutterian Brethren, the ques-
tion at hand is whether Amselem closed the door to an exemption that
would require applicants to demonstrate identification with a particular
religious community. Ontario and Alberta seemed to believe it had, but
given the facts Amselem responded to, Justice Iacobuccis carefully quali-
fied statements on this point, and the decisions failure to engage with the
line of judicial and critical scholarship outlined above, I would disagree.
The question of whether beliefs that are not shared by a community are
protected by subsection 2(a) remains to be litigated on the proper factual
foundation.
Prong B: That the Practice Arises from Membership in this Religious
Community
The second prong in my model requires the claimant to establish that
the practice at issue is identified with the claimants religious community.
This prong is reminiscent of Ontarios requirement that the religious or-
ganization prohibit personal photographs.74 As discussed in Section II,
however, the requirement of a prohibition did not seem consistent with
Justice Iacobuccis assertion in Amselem that subsection 2(a) should not
protec[t] only those aspects of religious belief or conduct that are objec-
tively recognized by religious experts as being obligatory tenets or pre-
cepts of a particular religion.75 In contrast, my proposal affirms Amse-
lems protection of religious practices that are not obligatory or whose
obligatory nature is contested within the religious community.
Prong C: Individual Commitment to the Practice
This prong requires the claimant to demonstrate commitment to the
practice at issue by providing evidence of past or current practice. Alberta
seemed to conclude that such a requirement was inconsistent with Amse-
lem. Alberta claimed, for example, that after Amselem, a person who
freedom of individuals but not the groups they belonged to was precluded by s 27 (supra
note 50 at para 202).
73 The Irreducibly Religious Content of Freedom of Religion in Avigail Eisenberg, ed, Di-
versity and Equality: The Changing Framework of Freedom in Canada (Vancouver:
UBC Press, 2006) 178 at 179.
74 See text accompanying note 35.
75 Supra note 9 at para 43. See also supra note 36.
742 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
claims a religious objection to the photo requirement with apparent con-
viction [was] presumptively entitled to an exemption.76
Alberta likely drew this conclusion from a passage in Amselem in
which Justice Iacobucci stressed that a claim should not fail on the
grounds that the claimants past commitment to this practice was not en-
tirely consistent. The issue arose in Amselem because some of the claim-
ants had not erected individual succahs in previous years, choosing in-
stead to celebrate the holiday at the households of family members.77 In
response, Justice Iacobucci made clear that this variation in practice did
not render the claimants claim specious. He explained that it was
[i]nappropriate … [to] rigorously study and focus on the past prac-
tices of claimants in order to determine whether their current beliefs
are sincerely held. Over the course of a lifetime, individuals change
and so can their beliefs.78
Alberta seemed to extrapolate from this passage that because Amse-
lem prohibited scrutiny of a claimants past practice, a claimant who pro-
fessed a certain belief but could not provide evidence of past practice sup-
porting this belief would succeed.
However, this passage in Amselem does not render evidence of past
practice irrelevant to the determination of a claims sincerity. Justice
Iacobucci made clear that religious practices evolve slowlyover a life-
timeand thus it should be rare for a claimant who is not able to offer
any evidence of past practice to succeed. Furthermore, considering the
facts of Amselem from which Justice Iacobuccis statement arose, the
claimants had demonstrated a past commitment to this holiday by observ-
ing it with family members. The issue in Amselem was the interpretation
of the biblical commandment to dwell joyously in a succah, and the par-
ticular question before the Court was whether the claimants sincerely be-
lieved that erecting a communal succah in the garden of the condominium
would not satisfy this obligation. The fact that claimants had chosen to
celebrate the holiday in the past in the individual succahs of their family
members did not undermine the sincerity of their claim that sharing a
succah with all condominium members would infringe their beliefs.
Prong C of my proposed exemption is therefore in line with Justice
Iacobuccis exhortation in Amselem that a believers evolving manifesta-
tions of religious belief over time should not be subjected to mechanical
state scrutiny. In practice, it would mean that that the Old Order Amish
76 Hutterian Brethren, FOA, supra note 2 at para 71.
77 Supra note 9 at para 16.
78 Ibid at para 53.
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 743
mans application, discussed above, would not fail on the basis that his
past practices with respect to driving were inconsistent with his past
practices with respect to photographs, as long as the claimant could also
provide sufficient evidence demonstrating his membership in an Amish
community (prong A) that objects to the practice of taking photographs
(prong B).79
To conclude, although my proposed exemption develops Amselems
guidelines to suit a more complex context, it does not contradict Justice
Iacobuccis reasoning in this case or the conclusions he drew based on the
facts before him.
C. Does this Exemption Undermine Albertas Objectives?
The next issue to consider is whether my proposed exemption would
enable Alberta and Ontario to meet their objectives of protecting against
identity fraud. After all, even if this exemption cohered with Amselem, if
it did not provide the province with sufficient criteria to distinguish sin-
cere from insincere claims, it would have no potential to alter the Courts
minimal impairment analysis in Hutterian Brethren. In this part, I ad-
dress this issue by considering how my exemption would enable the prov-
inces to distinguish between insincere claimants and the three kinds of
sincere claimants Justice Iacobucci identified in Amselem.
Recall that Justice Iacobucci first asserted that subsection 2(a) pro-
tects those whose practices or beliefs were objectively required by the re-
ligion.80 This category protects members of an organized religion with a
recognized record of objecting to the photograph requirement, such as the
Amish, Molokans, and Hutterites.81 It would be very difficult for an insin-
cere believer to provide evidence of membership in such a group (prong
A), since these communities isolate themselves from modern secular soci-
ety in many other respects and have a well-documented commitment to
the practice of not taking photographs. As a result, this model would eas-
ily enable Alberta and Ontario to identify those who insincerely claim to
be members of such religions.
79 Incidentally, the letter the church elder reportedly wrote on behalf of this applicant
seems to me to confirm prongs A and B of my proposed exemption, as the elder recog-
nized the claimant as a member of his community and affirmed that Old Order Amish
are prohibited from taking photographs. See text accompanying note 43.
80 Amselem, supra note 9 at para 69.
81 For a discussion of the photo requirement exemption with respect to Molokans, see
Valov v California (Department of Motor Vehicles), 34 Cal Rptr (3d) 174, 132 Cal App
(4th) 1113 (2005).
744 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
Second, Justice Iacobucci declared that subsection 2(a) protects claim-
ants who sincerely believe a practice is required by their religion, even if
this belief is contested by some religious leaders. The American case of
Quaring v. Nebraska (Department of Motor Vehicles) demonstrates how
the provinces might determine the sincerity of such a claimant.82 Quaring
was a Pentecostal Christian woman who had long believed that the Bible
prohibited the taking of photographs; consequently, she possessed no fam-
ily photos, did not take pictures of her own wedding, refused to allow any
photography in her home, and removed labels displaying pictures on food-
stuffs. Although some branches of the Pentecostal Church subscribe to
such a belief, it was not shared by Quarings local church community. As a
result, it is unlikely Quaring would have been able to satisfy Ontarios
current requirements for an exemption, since she would not have been
able to offer a letter of support from a religious leader in her community.
However, under my proposed exemption, Quaring could have demon-
strated that she belonged to a local Pentecostal church (prong A), that her
beliefs were rooted in traditional Pentecostal teachings (prong B), and
that she had a long history of abstaining from taking photographs (prong
C). Given the amount of evidence a sincere believer such as Quaring
would have been required to proffer under this model, it is unlikely that
an insincere claimant could similarly demonstrate adherence to a verita-
ble religious practice.83
Third, Justice Iacobucci protected under subsection 2(a) a person who
sincerely believes that [a] practice engenders a personal, subjective con-
nection to the divine, as long as these beliefs have a nexus with relig-
ion.84 As discussed in the conclusion of Section I, this category raised par-
ticular concerns for Ontario and Alberta, since an insincere claimant
would likely claim that his beliefs were also protected under this category.
82 728 F (2d) 1121, 1984 US App LEXIS 24956 (8th Cir, 1984), affd 472 US 478 (1985)
[Quaring, cited to F (2d)].
83 Interestingly, the states argument in this case closely paralleled Albertas in Hutterian
Brethren. It argued that Quarings application should not be accepted since she was not
able to provide objective criteria of religious faith, and without such criteria, it would
become too easy for any applicant to claim this objection, and exemptions would be
available virtually on demand. (ibid at 1127). The US Court of Appeals for the Eighth
Circuit rejected this argument. It stressed Quarings identification with a historical and
scattered community that shared these concerns, and concluded that by showing that
they possess no photos or pictures , persons, like Quaring requesting an exemption for
religious beliefs based on the Second Commandment can easily demonstrate the sincer-
ity and valid nature of their belief (ibid).
84 Amselem, supra note 9.
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 745
In Ontarios submissions to the Court, it stated that the Bothwell case
illustrated this concern.85 Bothwell expressed uneasiness with Ontarios
policy of taking all licence photos with a digital camera and storing them
in a database. After being informed that Ontario only provided exemp-
tions for religious objections, he claimed that his personal relationship
with Jesus Christ led him to believe that the Second Commandment pro-
hibited photos.86 He then held a press conference to discuss his case and
invited the media to bring cameras. The court dismissed Bothwells
PVWP application for failing to demonstrate sincere religious belief. Not-
ing Bothwells press conference, the court held that at the root of his ob-
jections were secular concerns about privacy related to government data-
bases, rather than a claim with a nexus to religion.87 Ontario argued in
Hutterian Brethren that, if it were not allowed to continue requiring its
three objective criteria (i.e., membership in a religious organization, a let-
ter of support from a religious leader, and scriptural passages substantiat-
ing a religious prohibition), it would only be able to catch wrongdoers like
Bothwell on rare occasions where they, like Bothwell, slipped up and
held a press conference.88
However, Ontario would also be able to distinguish insincere claim-
ants like Bothwell from sincere claimants under my model. After all, even
if Bothwell had not called a press conference, he would not have been able
to satisfactorily demonstrate any of the three elements of sincere religious
belief my proposed exemption requires: he could not have proved mem-
bership in a religious community that objected to photographs (prongs A
and B)89 or provided evidence of past or current practice (prong C).90 The
facts of Bothwell, therefore, suggest that my proposed modification to On-
tarios criteria is rigorous enough to enable the province to identify insin-
cere claimants. Since Justice Iacobucci affirmed in Amselem that the
claimant held the burden to demonstrate his sincere belief, an applicant
who professes sincere belief but who cannot provide objective evidence
supporting this belief should not succeed.91
85 Hutterian Brethren, FOI, supra note 26 at para 5. See also Bothwell, supra note 34.
86 Ibid at paras 18, 23.
87 Ibid at para 43, 55.
88 Hutterian Brethren, OAI, supra note 52.
89 The Ontario Divisional Court noted that when Bothwell found out about the govern-
ments exemption policy he began to search for a congregation to join that had a reli-
gious objection to photographs, without success: Bothwell, supra note 34 at para 24.
90 The Ontario Divisional Court also noted that Bothwell had posted photos of himself on
his website, and did not object to members of the media taking his photograph: ibid at
paras 60-61.
91 Supra note 9 at para 46.
746 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
The case law thus far indicates that the objective criteria in my pro-
posed exemptionalthough less rigorous than those in Ontarios current
exemptionwould still enable the state to identify insincere claimants.
D. Would the Supreme Court of Canada Have Accepted this Exemption?
The final question to consider in this section is whether, if the Hutter-
ites or an intervener had proposed the exemption I drafted above, Chief
Justice McLachlin would have accepted this alternative and held that Al-
berta had not met the minimal impairment test, despite her emphasis on
the deference she owed Alberta in this context.92
Recall that Chief Justice McLachlin declined to quantify the precise
risk exemptions posed within the minimal impairment calculation. As
discussed in Section II, she rejected the Hutterites argument that the
risk of an exemption would be low, saying The claimants argument … as-
sumes some increase in risk and impairment of the government goal may
occur, and hence does not assist at the stage of minimal impairment.93
My proposed exemption does not seem to alter this minimal impairment
reasoning, since any exemption creates more of a risk than a blanket pol-
icy that does not allow for an exemption.
Nevertheless, it is worth considering the nature of the risk this ex-
emption would create. Elsewhere in her judgment, Chief Justice McLach-
lin elaborated on the manner in which an exemption might undermine
Albertas objectives. For example, she repeatedly noted that even if only
sincere religious claimants were granted non-photo licences, this 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.94 This is the sole risk that even a perfectly tai-
lored exemption, perfectly applied, could not guard against.
Let us consider this scenario in more detail. What would happen if a
wrongdoer tried to appropriate the identity of a sincere religious claimant
in order to obtain a non-photo licence? There are several possible eventu-
alities to consider. First, the wrongdoer could attempt to appropriate the
identity of a claimant who did not have a licence. However, this situation
provides no novel risk given that there are 700,000 Albertans who do not
92 I am grateful to Professor Lisa Austin for suggesting that I consider this question and
for outlining the conclusions that could be drawn in this part.
93 Hutterian Brethren, supra note 4 at para 59.
94 Ibid. See also ibid at para 11: To the extent that licences exist without holder photos in
the central photo bank, others can appropriate the identity of the licence holder without
detection by the facial recognition software.
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 747
have a licence,95 and thus cannot pose a cause for concern. Second, the
wrongdoer could attempt to appropriate the identity of a claimant who
had been issued a non-photo licence. In this case, the databank would no-
tice that an applicant was seeking a licence using the same name, birth
date, and other identifying information as a religious claimant who was
already in the system, and would recognize that either the licence holder
or the applicant was a wrongdoer. The problem here, as Chief Justice
McLachlin noted, is that in the absence of a photo in the data bank, it
would not be clear which party was the wrongdoer. Thus, the central risk
posed by my exemption is the risk that an official could not correctly de-
termine the wrongdoer in this instance.
If we accept the exemption model I proposed above, it is hard to see
how this risk would be realized. The objective evidence my exemption re-
quires would also provide a basis on which to distinguish wrongdoers from
sincere religious believers in this instance. For example, a religious offi-
cial who had standing in the community could vouch for the applicant, in
the same way that professionals affirm that a passport application cor-
rectly identifies an applicant. Alternatively, the applicant could provide
evidence of long-standing identification with this community, or evidence
of commitment to this practice. Thus, if the Supreme Court of Canada had
addressed Albertas interpretation of Amselem, and interpreted Amselem
in the manner I outlined above, it is difficult to see on what basis it could
have subsequently deferred to Albertas minimal impairment concerns.
Conclusion: Future Subsection 2(a) Challenges and the Role of the
Minimal Impairment Test
Although Albertas concern with how to structure a religious exemp-
tion was not recorded in the pages of the Supreme Court of Canadas deci-
sion in Hutterian Brethren, it provides an important starting point to as-
sess the implications of the Courts new approach to subsection 2(a)
claims. As discussed in Section II, above, Hutterian Brethren marks a sig-
nificant methodological departure for the Court, because Chief Justice
McLachlin affirmed that the proportionate effects test may often provide
the critical framework for assessing freedom of religion claims. This criti-
cal passage bears repeating in full:
Freedom of religion cases may often present this all or nothing di-
lemma. Compromising religious beliefs is something adherents may
understandably be unwilling to do. And governments may find it dif-
ficult to tailor laws to the myriad ways in which they may trench on
different peoples religious beliefs and practices. The result may be
95 Ibid at para 63.
748 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
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
that the state goal is valid, but at the stage of proportionality of ef-
fects.96
What are the potential implications of this methodology for future
subsection 2(a) claims? Let us begin by noting that the minimal impair-
ment and proportionate effects tests generate distinct products. The
minimal impairment test considers whether there are alternative meth-
ods of achieving the states objective. It thus considers whether there is
another way to address each partys needs, to protect both the integrity of
the society as a whole and the functioning of minority groups within it. In
contrast, the proportionate effects analysis determines, in the event that
no alternative route can be found, whose interests should prevail.
Grimms formulation of the third step of Oakes starkly stresses this as-
pect:
[B]alancing does not save … the judge from deciding which right or
interest shall ultimately prevail in which situation. This means that
religious freedom may be on the losing side regardless of the impor-
tance of a religious requirement for the believer. There are situa-
tions in which the only alternative is adaptation to the secular norm
or emigration.97
The proportionate effects test thus potentially reduces the many al-
ternatives presented in the minimal impairment analysis to two stark
choices: adaptation or emigration. As Grimm acknowledges, this may be
appropriate in some very difficult circumstances. However, what are the
implications of declaring, as Chief Justice McLachlin and Justice Abella
did in Hutterian Brethren, that the proportionate effects test provides the
critical framework to assess many of these claims?
Turning to the proportionate effects test before exhausting the mini-
mal impairment inquiry may have the unfortunate consequence of dis-
couraging legislative innovation at a time when it is sorely needed. In
Hutterian Brethren the question of whether an exemption to the licence
photo requirement was feasiblethe classic question of a minimal im-
pairment analysisraised difficult questions as to the scope of the subsec-
tion 2(a) guarantee, such as whether religious beliefs can emerge in isola-
tion. The Courts proportionate effects analysis, in contrast, did not re-
quire these questions to be considered.98 Thus, if the Court turns to the
proportionate effects analysis prematurely, it may restrict the legisla-
96 Hutterian Brethren, supra note 4 at para 61.
97 Supra note 12 at 2382 [emphasis added].
98 For an analysis of why the last step of the Oakes test did not provide a suitable frame-
work to consider these questions in Hutterian Brethren, see Weinrib, supra note 5.
COMMENT: ALBERTA V. HUTTERIAN BRETHREN OF WILSON COLONY 749
tures ability to craft constitutional alternatives that further the states
policy objectives.
The Courts new methodology may likewise discourage rights claim-
ants from considering potential alternatives. As an example, consider the
alternative of fingerprinting. In the course of litigation, the Hutterites
brought up this alternative in fits and starts: they suggested it in oral ar-
gument at the Alberta Court of Appeal, and then elected not to pursue it
at the Supreme Court of Canada, seemingly after being informed that the
act of fingerprinting also involved the taking of a photograph.99 Yet in
their application to the Court for a rehearing, the Hutterites requested
that the Court consider whether fingerprinting would provide a viable al-
ternative to Albertas photo requirement.100 Although any explanation of
the shift in the Hutterites position remains speculative, their inconsistent
positions regarding this alternative brings to mind a potential difficulty in
litigating freedom of religion claims. The minimal impairment analysis
assumes the religious adherents are able to evaluate precisely how differ-
ent alternatives impact their faith. However, since litigation often takes
place in response to novel technological or social incursions into the reli-
gious sphere, this may not always be the case. The search for alternatives
may require religious leaders to learn about the technology at issue as
well as to reinterpret foundational guiding texts with these new develop-
ments in mind. It is possible that in the course of litigation a communal
shift may occur, opening up new options that were not immediately ap-
parent. Turning to the proportionate effects analysis prematurely may
discourage religious claimants, as well as the legislature, from embarking
on this difficult process.
Chief Justice McLachlin anchored her assertion of the importance of
the proportionate effects test in the difficulty that legislatures have in tai-
loring laws to protect the diversity of beliefs found in Canadas multicul-
tural society. Although it is surely difficult for religious adherents to
compromise their beliefs, and for governments to tailor their laws, the
minimal impairment analysis nevertheless calls on all parties to think
through the unique challenges of protecting freedom of religion in a lib-
eral democracy. If the Court had responded to Albertas and Ontarios
concerns pertaining to the nature of a religious-based exemption after
Amselem, its guidance may have enabled Alberta to develop an alterna-
99 Alberta v Hutterian Brethren of Wilson Colony, [2007] SCCA No 397 (Responding Mo-
tion Record of the Appellant at paras 16-18).
100 Alberta v Hutterian Brethren of Wilson Colony, [2007] SCCA No 397 (Motion Record for
Order and Re-Hearing of the Hutterian Brethren of Wilson Colony at para 6). The
Court dismissed this application without giving reasons in Alberta v Hutterian Brethren
of Wilson Colony, [2007] SCCA No 397 at para 10.
750 (2011) 56:2 MCGILL LAW JOURNAL ~ REVUE DE DROIT DE MCGILL
tive in this instance. More critically, the Courts remarks would have en-
couraged future parties to these clashes to scrutinize whether the rights
of religious claimants truly conflict with the greater good.
