Alberta v Hutterian Brethren of Wilson Colony

Abstract

In Alberta v Hutterian Brethren of Wilson Colony, a majority of the Supreme Court of Canada dismissed the claim of members of the Wilson Colony that Alberta's requirement for photographs on driver's licences unjustifiably violated their rights under section 2(a) and 15(1) of the Canadian Charter of Rights and Freedom. This Women's Court of Canada judgment focuses on the equality rights challenge under section 15(1), which was given short shrift by the Court. The authors propose a new framework for analyzing equality claims under section 15(1) that attempts to respond to some of the concerns with the Court's judgment in R v Kapp, especially for cases of adverse effects discrimination—an area of equality rights law of particular importance for women. Applying the new framework, the authors attend to the social and historical context of the Hutterian Brethren and find that a violation of section 15 is made out. They also reconsider the Court majority's reasons under section 1 of the Charter, critiquing the majority's deferential approach to government and the threat it poses to the rights of some religious and racialized women perceived to present security risks. By making more space for reasonable accommodation and the contextual consideration of deleterious effects under section 1, the authors hold that the violation of section 15(1) cannot be justified.