Hutterian Brethren of Wilson Colony et al. v. Alberta, (2009) 390 N.R. 202 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 07, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2009), 390 N.R. 202 (SCC);2009 SCC 37;9 Alta LR (5th) 1;460 AR 1;EYB 2009-161892;[2009] 9 WWR 189;[2009] SCJ No 37 (QL);179 ACWS (3d) 327;JE 2009-1407;81 MVR (5th) 1;[2009] 2 SCR 567;310 DLR (4th) 193;390 NR 202

Hutterian Brethren v. Alta. (2009), 390 N.R. 202 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2009] N.R. TBEd. JL.072

Her Majesty the Queen in Right of the Province of Alberta (appellant) v. Hutterian Brethren of Wilson Colony and Hutterian Brethren Church of Wilson (respondents) and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of British Columbia, Canadian Civil Liberties Association, Ontario Human Rights Commission, Evangelical Fellowship of Canada and Christian Legal Fellowship (intervenors)

(32186; 2009 SCC 37; 2009 CSC 37)

Indexed As: Hutterian Brethren of Wilson Colony et al. v. Alberta

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein, JJ.

July 24, 2009.

Summary:

The plaintiffs' religion prohibited them from having their photographs taken. A 2003 regulation amendment required photographs for all driver's licenses. The plaintiffs applied for (i) a declaration that the regulation was of no force and effect or (ii) an order permitting the province to issue non-photographic driver's licenses to the plaintiffs either by reading in an exemption as contained in the pre-amendment license conditions or by granting a constitutional exemption. The Crown did not dispute that the regulation breached the plaintiffs' ss. 2(a) and 15(1) Charter rights. The sole issue was whether the photograph requirement was justified under s. 1 of the Charter.

The Alberta Court of Queen's Bench, in a decision reported at (2006), 398 A.R. 5, declared that the amended regulation was inconsistent with the Constitution, was not saved by s. 1 of the Charter and was of no force and effect. The Crown appealed.

The Alberta Court of Appeal, Slatter, J.A., dissenting, in a decision reported at (2007), 417 A.R. 68; 410 W.A.C. 68, dismissed the appeal. The Crown appealed.

The Supreme Court of Canada, Abella, LeBel and Fish, JJ., dissenting, allowed the appeal.

Civil Rights - Topic 303

Freedom of conscience and religion - General - Scope of right - [See ninth Civil Rights - Topic 8348 ].

Civil Rights - Topic 382

Freedom of conscience and religion - Infringement of - What constitutes - The Supreme Court of Canada stated that an infringement of s. 2(a) of the Charter was made out where (1) the claimant sincerely believed in a belief or practice that had a nexus with religion; and (2) the impugned measure interfered with the claimant's ability to act in accordance with his or her religious beliefs in a manner that was more than trivial or insubstantial - "Trivial or insubstantial" interference was interference that did not threaten actual religious beliefs or conduct - See paragraph 32.

Civil Rights - Topic 1041

Discrimination - Religion - General - The plaintiffs' religion prohibited them from having their photographs taken - They challenged the constitutionality of a 2003 regulation amendment that required photographs for all driver's licenses - It was undisputed that the regulation breached the plaintiffs' s. 2(a) Charter right (freedom of conscience and religion) - The plaintiffs claimed, alternatively, a breach of s. 15 of the Charter - The Supreme Court of Canada held that there was no breach of s. 15 - The court rejected the argument that the refusal to issue driver's licences to the plaintiffs because they refused to abandon their religious beliefs clearly demeaned and infringed upon their human dignity - Photo licenses were not issued to other drivers simply because they did not share such religious beliefs, but because they met the statutory requirements for issuance of a license, including having a photo taken - Assuming that the plaintiffs could show that the regulation created a distinction on the enumerated ground of religion, the distinction arose not from any demeaning stereotype, but from a neutral and rationally defensible policy choice - There was no discrimination within the meaning of Andrews v. Law Society of British Columbia (1989 S.C.C.) - See paragraphs 105 to 108.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The Supreme Court of Canada stated that "a measure of leeway must be accorded to governments in determining whether limits on rights in public programs that regulate social and commercial interactions are justified under s. 1 of the Charter" - Section 1 of the Charter did not demand that the limit on the right had to be perfectly calibrated, judged in hindsight, but only that it be "reasonable" and "demonstrably justified" - Where a complex regulatory response to a social problem was challenged, courts will generally take a more deferential posture throughout the s. 1 analysis than they would when the impugned measure was a penal statute directly threatening the liberty of the accused - The bar of constitutionality could not be set so high that responsible, creative solutions to difficult problems were threatened - A degree of deference was, therefore, appropriate - See paragraphs 35 to 38.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The plaintiffs' religion prohibited them from having their photographs taken - They challenged the constitutionality of a 2003 regulation amendment that required photographs for all driver's licenses - It was undisputed that the regulation breached the plaintiffs' s. 2(a) Charter right (freedom of conscience and religion) - The Supreme Court of Canada held that the universal photo requirement was justified under s. 1 of the Charter - The court rejected the argument that Charter-infringing measures could only be adopted by primary legislation - Regulations were "measures prescribed by law" under s. 1 - Hostility to the regulation-making process was out of step with the court's jurisprudence and with the realities of the modern regulatory state - Regulations were the life blood of the administrative state and did not imperil the rule of law - Whether the impugned measure was passed by statute or regulation was usually of no consequence for the s. 1 analysis - See paragraphs 39 and 40.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The plaintiffs' religion prohibited them from having their photographs taken - They challenged the constitutionality of a 2003 regulation amendment that required photographs for all driver's licenses - It was undisputed that the regulation breached the plaintiffs' s. 2(a) Charter right (freedom of conscience and religion) - The Supreme Court of Canada held that the universal photo requirement was justified under s. 1 of the Charter - The purpose of a universal photo requirement was to have a complete digital data bank of facial photos to prevent wrongdoers from using driver's licenses as breeder documents for purposes of identity theft - Maintaining the integrity of the driver's licensing system in a way that minimized the risk of identity theft was clearly a goal of pressing and substantial importance, capable of justifying limits on rights - The court disagreed with the conclusion of the Court of Appeal below that the goal of the universal photo requirement should be confined to purposes related to traffic safety, since that was the subject of the authorizing legislation - The province was entitled to pass regulations dealing not only with the primary matter of highway safety, but with collateral problems associated with the licensing system - See paragraphs 41 to 47.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The plaintiffs' religion prohibited them from having their photographs taken - They challenged the constitutionality of a 2003 regulation amendment that required photographs for all driver's licenses - It was undisputed that the regulation breached the plaintiffs' s. 2(a) Charter right (freedom of conscience and religion) - The Supreme Court of Canada held that the universal photo requirement was justified under s. 1 of the Charter - The universal photo requirement was rationally connected to the goal of preserving the integrity of the driver's licensing system by minimizing the risk of identity theft through the use of illicit driver's licenses - The court noted that the Court of Appeal below had expressed doubt that the universal photo requirement was rationally connected to the goal of preserving the system's integrity and had concluded that the risk flowing from exempting a few hundred Hutterites was "minimal" - However, these concerns confused rational connection with proportionality of negative and positive effects of the measure - The issue at the stage of rational connection was simply whether there was a rational link between the infringing measure and the government goal - The balance between positive and negative effects fell to be considered at the final stage of the s. 1 analysis - See paragraphs 48 to 52.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The plaintiffs' religion prohibited them from having their photographs taken - They challenged the constitutionality of a 2003 regulation amendment that required photographs for all driver's licenses - It was undisputed that the regulation breached the plaintiffs' s. 2(a) Charter right (freedom of conscience and religion) - The Supreme Court of Canada held that the universal photo requirement was justified under s. 1 of the Charter - The universal photo requirement minimally impaired the s. 2(a) right - The purpose of the limit was to maintain the integrity of the driver's licensing system - The question here was whether the means chosen to attain that goal were reasonably tailored to address the problem of identity theft associated with driver's licenses - The evidence disclosed no alternative measures that would substantially satisfy the government's objective while allowing the plaintiffs to avoid being photographed - The alternatives proposed by the plaintiffs would significantly compromise the government's objective and were, therefore, not appropriate for consideration at the minimal impairment stage of the s. 1 analysis - The measure sought to realize the legislative goal in a minimally intrusive way - See paragraphs 53 to 62.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The plaintiffs' religion prohibited them from having their photographs taken - They challenged the constitutionality of a 2003 regulation amendment that required photographs for all driver's licenses - It was undisputed that the regulation breached the plaintiffs' s. 2(a) Charter right (freedom of conscience and religion) - The Supreme Court of Canada held that the universal photo requirement was justified under s. 1 of the Charter - The universal photo requirement minimally impaired the s. 2(a) right - The purpose of the limit was to maintain the integrity of the driver's licensing system - The court noted that much had been made of the fact that over 700,000 Albertans did not hold driver's licenses, including the argument, which was accepted by the dissent, that the risk posed by a few hundred potential religious objectors was minuscule as compared to the much larger group of unlicensed persons - That argument rested on an overly broad view of the objective of the universal photo requirement as being to eliminate all identity theft in the province - The court had to take the government's goal as it was, which was to maintain the integrity of the driver's licensing system so as to minimize theft associated with that system - The implication of the reasoning in dissent was that the province had to take the radical approach of requiring photographic identification for every Albertan before it could rely on a security risk argument in the context of the driver's licensing program - The province had a legitimate interest in ensuring the integrity of the driver's licensing program - It should not be forced to undertake broader measures that it might have resisted for other policy reasons - See paragraphs 63 to 65.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The plaintiffs' religion prohibited them from having their photographs taken - They challenged the constitutionality of a 2003 regulation amendment that required photographs for all driver's licenses - It was undisputed that the regulation breached the plaintiffs' s. 2(a) Charter right (freedom of conscience and religion) - The Supreme Court of Canada held that the universal photo requirement was justified under s. 1 of the Charter - The universal photo requirement minimally impaired the s. 2(a) right - The court disagreed with the approach in the courts below regarding minimal impairment - First, they conducted a balancing inquiry at the minimal impairment stage, and, second, they applied a reasonable accommodation analysis instead of the Oakes test - However, a distinction had to be maintained between the reasonable accommodation analysis undertaken when applying human rights laws and the s. 1 justification analysis that applied to a claim that a law infringed the Charter - Where the validity of a law was at stake, the Oakes analysis was the appropriate approach - If the law was found to be unconstitutional, it was null and void under s. 52 of the Constitution Act, 1982 - Where a government action or administrative process was found to violate a Charter right, the court's remedial jurisdiction was under s. 24(2) of the Charter - See paragraphs 65 to 71.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The plaintiffs' religion prohibited them from having their photographs taken - They challenged the constitutionality of a 2003 regulation amendment that required photographs for all driver's licenses - It was undisputed that the regulation breached the plaintiffs' s. 2(a) Charter right (freedom of conscience and religion) - The Supreme Court of Canada held that the universal photo requirement was justified under s. 1 of the Charter - The regulation advanced an important objective, maintaining the integrity of the driver's licensing system, its limitation on the plaintiffs' religious freedom was rationally connected to that goal and the means chosen to achieve the objective (the universal photo requirement) met the requirement of minimal impairment - The final question was whether the overall effects of the law on the plaintiffs was disproportionate to the government's objective - This stage of the Oakes test allowed for a broader assessment of whether the benefits of the impugned law were worth the cost of the rights limitation - In cases such as the one here, where the demand was that the right be fully respected without compromise, the justification of the law imposing the limit often turned on whether the deleterious effects were out of proportion to the public good achieved by the infringing measure - See paragraphs 72 to 78.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The plaintiffs' religion prohibited them from having their photographs taken - They challenged the constitutionality of a 2003 regulation amendment that required photographs for all driver's licenses - It was undisputed that the regulation breached the plaintiffs' s. 2(a) Charter right (freedom of conscience and religion) - The Supreme Court of Canada held that the universal photo requirement was justified under s. 1 of the Charter - The regulation advanced an important objective, maintaining the integrity of the driver's licensing system, its limitation on the plaintiffs' religious freedom was rationally connected to that goal and the means chosen to achieve the objective (the universal photo requirement) met the requirement of minimal impairment - The final question was whether the overall effects of the law on the plaintiffs was disproportionate to the government's objective - Three salutary effects of the universal photo requirement were raised on the evidence: (1) enhancing the security of the driver's licensing system, (2) assisting in roadside safety and identification and (3) eventually harmonizing Alberta's licensing scheme with those in other jurisdictions - These were sufficient, subject to final weighing against the negative impact on the right, to support some restriction of the right - The negative impact of the limit on religious practice imposed by the universal photo requirement for obtaining a driver's license was that members of the plaintiff Colony would be obliged to make alternative arrangements for highway transport - This would impose some financial burden on the community and would force a departure from the plaintiffs' tradition of being self-sufficient in terms of transport - These costs were not trivial - However, on the record, they did not rise to the level of seriously affecting the plaintiffs' right to pursue their religion - They did not negate the choice that lay at the heart of freedom of religion - The impact of the limit on religious practice was proportionate - See paragraphs 79 to 104.

Civil Rights - Topic 8466

Canadian Charter of Rights and Freedoms - Interpretation - Balancing approach - [See fourth and seventh Civil Rights - Topic 8348 ].

Civil Rights - Topic 8479

Canadian Charter of Rights and Freedoms - Interpretation - Regulatory matters - [See first, second, third and sixth Civil Rights - Topic 8348 ].

Civil Rights - Topic 8554

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Prescribed by law - [See second Civil Rights - Topic 8348 ].

Civil Rights - Topic 8668

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - What constitutes a breach of s. 15 - [See Civil Rights - Topic 1041 ].

Civil Rights - Topic 8671

Canadian Charter of Rights and Freedoms - Equality rights (s. 15) - Enumerated categories - [See Civil Rights - Topic 1041 ].

Motor Vehicles - Topic 7147

Licensing and regulation of drivers - Licence - Issue of - Photograph requirement (incl. exemptions) - [See Civil Rights - Topic 1041 and all Civil Rights - Topic 8348 ].

Statutes - Topic 5352

Operation and effect - Delegated legislation - Regulations - Scope of regulation-making power - [See third Civil Rights - Topic 8348 ].

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose authorized by empowering statute - [See third Civil Rights - Topic 8348 ].

Cases Noticed:

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [paras. 4, 110, 183].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 16].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59; 2004 SCC 47, dist. [para. 32].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [paras. 32, 127, 194].

JTI-Macdonald Corp. et al. v. Canada (Attorney General), [2007] 2 S.C.R. 610; 364 N.R. 89; 2007 SCC 30, refd to. [para. 37].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2, refd to. [para. 39].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 39].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al., [2000] 2 S.C.R. 1120; 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1; 2000 SCC 69, refd to. [para. 40].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [paras. 48, 137].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [paras. 55, 198].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 67].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [paras. 77, 150, 187].

Trinity Western University et al. v. College of Teachers (B.C.) et al., [2001] 1 S.C.R. 772; 269 N.R. 1; 151 B.C.A.C. 161; 249 W.A.C. 161, dist. [para. 82].

Health Services and Support - Facilities Subsector Bargaining Association et al. v. British Columbia, [2007] 2 S.C.R. 391; 363 N.R. 226; 242 B.C.A.C. 1; 400 W.A.C. 1; 2007 SCC 27, refd to. [para. 88].

Kokkinakis v. Greece (1993), Series A no. 260-A (E.C.H.R.), refd to. [paras. 90, 128].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [paras. 90, 111].

Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), 505 U.S. 833 (S.C.), refd to. [para. 91].

Zylberberg et al. v. Board of Education of Sudbury et al. (1988), 29 O.A.C. 23; 65 O.R.(2d) 641 (C.A.), refd to. [para. 92].

Corporation of the Canadian Civil Liberties Association et al. v. Ontario (Minister of Education) and Board of Education of Elgin (County) (1990), 37 O.A.C. 93; 71 O.R.(2d) 341 (C.A.), refd to. [para. 92].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 106].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 108].

Sahin v. Turkey [GC], No. 44774/98, ECHR 2005-XI (E.C.H.R.), refd to. [para. 129].

Metropolitan Church of Bessarabia et al. v. Moldova, no 4570199, ECHR 2001-XII (E.C.H.R.), refd to. [para. 131].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 150].

Bothwell v. Ontario (Minister of Transportation) et al. (2005), 193 O.A.C. 383; 24 Admin. L.R.(4th) 288 (Div. Ct.), refd to. [para. 157].

Hofer v. Hofer, [1970] S.C.R. 958, refd to. [para. 165].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 171].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 172].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 184].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22; 2002 SCC 8, refd to. [para. 191].

Authors and Works Noticed:

Aquinas, Thomas, Treatise on Law (1991), p. 96 [para. 184].

Barak, Aharon, Proportional Effect: The Israeli Experience (2007), 57 U.T.L.J. 369, pp. 373 [para. 54]; 374 [paras. 54, 76]; 375 [para. 151].

Brun, Henri, Tremblay, Guy, and Brouillet, Eugénie, Droit constitutionnel (5th Ed. 2008), pp. 975, 976 [para. 186].

Cameron, Jamie, The Past, Present, and Future of Expressive Freedom Under the Charter (1997), 35 Osgoode Hall L.J. 1, p. 66 [para. 150].

Cane, Peter, Evans, Carolyn, and Robinson, Zoë, Law and Religion in Theoretical and Historical Context (2008), p. 29 [para. 169].

Choudhry, Sujit, So What Is the Real Legacy of Oakes? Two Decades of Proportionality Analysis Under the Canadian Charter's Section 1 (2006), 34 S.C.L.R.(2d) 501, pp. 503, 504 [para. 154].

Davis, Morris, and Krauter, Joseph F., The Other Canadians: Profiles of Six Minorities (1971), pp. 89, 96, 98, 99 [para. 166].

Eisenberg, Avigail, Diversity and Equality: The Changing Framework of Freedom in Canada (2006), p. 184 [para. 129].

Eissen, Marc-André, The Principle of Proportionality in the Case-Law of the European Court of Human Rights, in Macdonald, R. St. J., Matscher, F., Petzold, H., The European System for the Protection of Human Rights (1993), pp. 125 to 146 [para. 184].

Emiliou, Nicholas, The Principle of Proportionality in European Law: A Comparative Study (1996), p. 27 [para. 141].

Farrow, Douglas, Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy (2004), p. 12 [para. 173].

Grimm, Dieter, Proportionality in Canadian and German Constitutional Jurisprudence (2007), 57 U.T.L.J. 383, p. 393 [para. 152].

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007) (2007 Looseleaf Supp.) (2008 Update, Release 1), vol. 2, ss. 38.8 [para. 186]; 38.9(a), 38.9(b) [para. 188]; 38.10(a) [para. 189]; 38.11(a) [para. 191]; 38.12 [paras. 75, 191].

Hurka, Thomas, Proportionality in the Morality of War (2005), 33 Phil. & Pub. Aff. 34, generally [para. 184].

Macdonald, R. St. J., Matscher, F., Petzold, H., The European System for the Protection of Human Rights (1993), pp. 125 to 146 [para. 184].

McLachlin, Beverley M., Freedom of Religion and the Rule of Law: A Canadian Perspective, in Farrow, Douglas, Recognizing Religion in a Secular Society: Essays in Pluralism, Religion, and Public Policy (2004), p. 12 [para. 173].

Mullan, David J., Administrative Law: Cases, Text and Materials (5th Ed. 2003), p. 948 [para. 40].

Nussbaum, Martha C., Liberty of Conscience: In Defense of America's Tradition of Religious Equality (2008), p. 117 [para. 110].

Taylor, Charles, Philosophical Arguments (1995), p. 225 [para. 129].

Tremblay, Luc B., and Webber, Grégoire C.N., The Limitation of Charter Rights: Critical Essays on R. v. Oakes (2009), pp. 115, 116 [para. 184].

Van der Schyff, Gerhard, Limitation of Rights: A Study of the European Convention and the South African Bill of Rights (2005), pp. 23 to 27 [para. 184].

Webber, Jeremy, The Irreducibly Religious Content of Freedom of Religion, in Eisenberg, Avigail, Diversity and Equality: The Changing Framework of Freedom in Canada (2006), p. 184 [para. 129].

Webber, Jeremy, Understanding the Religion in Freedom of Religion, in Cane, Peter, Evans, Carolyn, and Robinson, Zoë, Law and Religion in Theoretical and Historical Context (2008), p. 29 [para. 169].

Weinstock, Daniel M., Philosophical Reflections on the Oakes Test, in Tremblay, Luc B., and Webber, Grégoire C.N., The Limitation of Charter Rights: Critical Essays on R. v. Oakes (2009), pp. 115, 116 [para. 184].

Counsel:

Roderick S. Wiltshire and Randy Steele, for the appellant;

K. Gregory Senda, for the respondents;

Donald J. Rennie and Sharlene Telles-Langdon, for the intervenor, the Attorney General of Canada;

Robert E. Charney and Michael T. Doi, for the intervenor, the Attorney General of Ontario;

Isabelle Harnois, for the intervenor, the Attorney General of Quebec;

Leah Greathead and Tyna Mason, for the intervenor, the Attorney General of British Columbia;

Mahmud Jamal, Colin Feasby and David Grossman, for the intervenor, the Canadian Civil Liberties Association;

Kikee Malik and Brian Smith, for the intervenor, the Ontario Human Rights Commission;

Charles M. Gibson, Albertos Polizogopoulos, Don Hutchinson and Faye Sonier, for the intervenors, the Evangelical Fellowship of Canada and the Christian Legal Fellowship.

Solicitors of Record:

Alberta Justice, Edmonton, Alberta, for the appellant;

Peterson & Purvis, Lethbridge, Alberta, for the respondents;

Department of Justice, Ottawa, Ontario, for the intervenor, the Attorney General of Canada;

Ministry of the Attorney General, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Department of Justice, Ste-Foy, Quebec, for the intervenor, the Attorney General of Quebec;

Ministry of Attorney General, Victoria, B.C., for the intervenor, the Attorney General of British Columbia;

Osler, Hoskin & Harcourt, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association;

Ontario Human Rights Commission, Toronto, Ontario, for the intervenor, the Ontario Human Rights Commission;

Vincent Dagenais Gibson, Ottawa, Ontario, for the intervenors, the Evangelical Fellowship of Canada and Christian Legal Fellowship.

This appeal was heard on October 7, 2008, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella and Rothstein, JJ. The court's decision was delivered in both official languages on July 24, 2009, with the following opinions:

McLachlin, C.J.C. (Binnie, Deschamps and Rothstein, JJ., concurring) - see paragraphs 1 to 109;

Abella, J., dissenting - see paragraphs 110 to 177;

LeBel, J., dissenting - see paragraphs 178 to 202;

Fish, J., dissenting - see paragraph 203.