The Globe Gets It Wrong On Hutterian Brethren (But Only Partially)

This week, The Globe and Mail responded to the Supreme Court’s decision in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, critically. (The decision is summarized and discussed by TheCourt.ca Senior Contributing Editor Daniel Del Gobbo here.) The Globe was critical of the Supreme Court’s decision requiring the Hutterites to participate in Alberta’s photo ID system if they wished to obtain driver’s licenses, arguing that the Hutterites’ wish to remain unphotographed did not particularly impinge on the security concerns advanced by the photo identification system.

However, oddly, the Globe chose this route of attack in its editorial:

The court seemed strangely in thrall to Alberta’s digital facial-recognition technology, and accepted the need for a perfect, identity-theft-proof system. By contrast, the court did not demand perfect protection from terrorists when it struck down Canada’s security-certificate system last year, Mr. Justice Louis LeBel said in a separate dissent. “Important as they were, the objectives of the law were not treated as absolute goals, which had to be realized in their perfect integrity.”

The Globe is of course referring to Charkaoui v. Canada (Minister of Citizenship and Immigration), 2008 SCC 38. It’s an inflammatory comparison, obviously intended to scold the SCC for being more worried about the threat of a bunch of pacifistic Hutterites as opposed to (presumably bloodthirsty) terrorists. The fact that the case against Adil Charkaoui was never anything more than extremely weak, and has only gotten weaker with time, seems to not inform the Globe’s accusation at all. It is also rather inaccurate because, as Mike Larsen previously pointed out on TheCourt.ca, the net effect of Charkaoui was merely to add a judicial gatekeeper step to the security information disclosure process.

But it is also an illogical comparison as well. Charkaoui was a case that primarily engaged s. 7 of the Charter of Rights and Freedoms; Hutterian Brethren engages s.2(a). A case dealing with the extent to which the Supreme Court is willing to limit government interference with one’s right to liberty will by its very nature be decided very differently than one where they decide how much interference with religious freedom can be tolerated in a security regime. Different rights under the Charter will engage the s.1 Oakes test differently; this should be fairly obvious.

If one wished to criticize Hutterian Brethren based on previous SCC decisions with which the case conflicts, there are far more apropos cases that one could choose other than Charkaoui. Most obviously there is Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6. Multani concerned whether an orthodox Sikh youth’s right to bring his kirpan (religious ceremonial dagger) to the public school he attended was protected under the Charter. The Supreme Court in that case found that Mr. Multani did indeed have the right to wear his kirpan to school despite the potential dangers associated with what is undeniably a knife, albeit one not intended to be used for any violent or even workmanlike purpose.

In Multani, three of the four justices who decided against the Hutterites (McLachlin C.J.C., Binnie J. and Deschamps J.) found that an absolute prohibition against the kirpan did not fall within the range of reasonable alternative policies available to the school board, specifically because the risk of Mr. Multani (or another orthodox Sikh) using his kirpan for violent purposes was negligible.

In deciding Multani, the SCC considered whether the limitation was rationally connected to the purpose of the governmental act by studying the history of kirpans being used as weapons, and found that their use in this manner was rare, and rarer when used by youths:

An article published in the March 23, 2002 edition of The Globe and Mail refers to the 1990 Ontario decision and mentions that there is no evidence of a growing danger since that time. In an article appearing in The Gazette on May 16, 2002, Surrey School District spokeswoman Muriel Wilson is quoted as saying, “We have a strict zero-tolerance policy on weapons or something that could be used as a weapon or taken to be a weapon, like a fake gun.” But according to her, the kirpan is considered to be a religious symbol, not a weapon: “The key is how things are used. A pen could be used as a weapon, but we’re not saying, ‘No pens in schools’.” The same article mentions that the Peel District School Board now says that… there “has never been an issue or incident, never a complaint or problem” related to wearing kirpans in school since the ban was lifted…

Compare this in-depth, evidentially sound reasoning to that in Hutterian Brethren at the same stage of analysis:

Alberta’s evidence demonstrates the ways in which the existence of an exemption from the photo requirement would increase the vulnerability of the licensing system and the risk of identity-related fraud. As Mr. Joseph Mark Pendleton, Director of the Special Investigations Unit of the Alberta Ministry of Government Services, put it in his affidavit supporting Alberta’s position, “[o]pportunities for fraud are as numerous as criminals are clever and resourceful.” The existence of non-photo licences in the system raises the possibility that a person could hold multiple licences in different names, as long as no more than one of them was a regular photographic licence. As stated by Alberta, “each licensee whose photo is not entered in our database creates an opportunity for impersonation by wrongdoers, because that person’s licence can be renewed or replaced by a wrongdoer without being detected by [facial recognition]”.

The difference here is obvious: in Multani, the SCC took a proposition advanced by the government – namely, that kirpans were dangerous weapons – and considered its truth both in general and specifically in Mr. Multani’s case. In Hutterian Brethren, the SCC took another proposition advanced by the government – namely, that allowing the Hutterites pictureless driver’s licenses could increase their chances of identity theft – and then did not consider the truth of that statement to nearly the same degree in their decision, instead relying on comparatively vague assertions. They also did not consider the specifics of the case to the same extent that they did in Multani. The arguments that the Hutterites are a tiny colony and their names could easily be flagged for the purpose of warding against identity theft, or that their photoless licenses be specifically labeled as “not identification”, were not subjected to the same rigorous scrutiny as Mr. Multani’s arguments regarding the relative safety of his kirpan.

The core difference between Multani and Hutterite Brethren is this: a photoless license could be used for the purposes of identity fraud, just as a kirpan could be used to harm another person. However, in Multani, the Supreme Court placed a much higher standard on the government to turn the “could” into the “would” necessary to allow the transgression against those religious freedoms enshrined in the Charter. In Hutterite Brethren, it did not.

If you are writing for The Globe and Mail, that is  how you distinguish Hutterite Brethren from past jurisprudence. Terrorism need not enter it at all.