The Wilson Hutterite Colony, near Lethbridge, Alberta, won a court case which requests that they not be required to have their photos on their provincial drivers licenses.

Previous to 2003, the province had allowed the registrar of driver’s licensing to use discretion in allowing exemptions from the photo requirement because of religious reasons. The province made the requirement mandatory in 2003 due to fears of terrorism, identity theft, and fraud.

The people in the Wilson Colony believe that the photos violate the second commandment which forbids graven images, so they took the province to court. They defeated the province in a local court, the Alberta Court of Queen’s Bench, in Lethbridge a year ago, but the province appealed the decision. Last Thursday the colony prevailed in the Alberta Court of Appeal.

Two of the superior court justices upheld the lower court decision. They decided that the provincial requirement mandating photos on driver’s licenses did, indeed, violate the religious rights of the Hutterites. Justice Carole Conrad, writing for the court majority, said that such a regulation would violate the Hutterites’ religion. “The Hutterian Brethren hold a genuine religious belief that having their photograph willingly taken is a sin,” she wrote in the court’s judgment.

Justice Conrad, and concurring Justice Clifton O’Brien, said the change was more than a minimal infringement of the colony’s freedom of religion. “Even if rationally connected to a valid objective, the regulation removing the Registrar’s discretion to grant non-photo licences [sic] does not minimally impair (their) rights,” Conrad wrote. “Rather, the rights are totally infringed while the risk of harm is minimal.”

The third judge, Justice Frans Slatter, dissented. He wrote that the breach of the Hutterites’ charter was justifiable. “Driver’s licences … have become a near universal form of identification,” he said. However, Justice Conrad added for the majority that, “The mandatory photo requirement forces the Hutterian Brethren to either breach a sincerely held religious belief against being photographed or to cease driving.”

The court rebutted other arguments made by the Province. The decision said that it was unlikely that Alberta would be deluged by requests for exemptions to the photo requirement on licenses. The judges also declared that the licenses are not really the same as universal, mandatory identity cards. Since it was a split decision, the province can appeal the case to Canada’s Supreme Court, but a decision to do so must be made by the middle of August.

Greg Senda, lawyer for the Hutterites, said that his clients were very concerned about the issue because driving vehicles is essential to their large-scale farming operations. He added, “They don’t like the spotlight. They don’t like to create waves so this [court case] was really a hard decision for these particular colonies to make because it was challenging the government and they don’t like doing that.”

Opposition to photos is not universal among Hutterites, however. The Pincher Creek colony in the southwestern corner of Alberta, for instance, has no problem with photos being taken of individuals.