Do mandatory photos on government-issued IDs like driver’s licenses violate the religious freedoms of people whose spiritual beliefs prohibit them from being photographed?

That novel question was to go before the Supreme Court of Canada Oct. 7 as the court kicked off its packed fall term short-handed, with Prime Minister Stephen Harper’s nominee, Justice Thomas Cromwell of the Nova Scotia Court of Appeal, stuck in juridical limbo until after the Oct. 14 federal election.

Sitting in panels of five or seven, the eight judges will hear 30 appeals, including 16 non-criminal cases that run the gamut from family and employment law to bankruptcy, class actions and solicitor-client privilege (for highlights of the criminal docket see upcoming story).

First up was the Alberta’s government’s appeal from decisions below that exempted a small sect of Hutterites from the mandatory requirement, introduced by regulation in 2003, that all Alberta drivers must be photographed for their driver’s licenses.

The Hutterian Brethren of Wilson Colony in southern Alberta believe that being photographed willingly violates God’s Second Commandment against making graven images. The group had enjoyed religious exemptions under the previous 1974 law. They argue that the government is forcing them to choose between their religious beliefs and their way of life and occupations since they won’t be able to continue their communal living and farming if they lose their licenses.

The Evangelical Fellowship of Canada and the Christian Legal Fellowship are intervening in support of the Hutterites in the hopes that the top court will clearly recognize for the first time that s. 2(a) of the Charter has a communal aspect, as well as an individual component – somewhat analogous to language rights, said the interveners’ counsel, Charles Gibson of Ottawa’s Vincent Dagenais Gibson.

“I think the case is giving [the] Supreme Court the opportunity to tie in some case law and make a statement that religious communities, as communities, also benefit from the freedom of religion,” Gibson explained.

Alberta conceded that its regulation under the Traffic Safety Act breaches the respondents’ religious freedoms. But the province argues that the regulation is justified under s. 1 of the Charter because mandatory driver photographs on licenses help prevent fraud, identity theft and terrorism.

Alberta is presently the only province building a facial recognition data base to prevent misuse of driver’s licenses and other government-issue ID.

However, the Supreme Court’s reasoning in the case could potentially affect other types of government-issued ID, such as passports, and other kinds of religious adherents, such as Muslim women who cover their heads and veil their faces on religious grounds.

Five attorneys general have intervened in support of Alberta. Of concern to them is the Alberta Court of Appeal’s reasoning that because the Act’s purpose is road safety, the regulation’s “collateral” objectives that relate to preventing identity theft and other abuses of the driver’s license, cannot be used to override religious freedoms under s. 1 of the Charter.

“We think the [Alberta] Court of Appeal was wrong in rejecting some of the objectives [of the law] presented by the Queen in right of Alberta,” said Isabelle Harnois, counsel for the intervener attorney general of Quebec. “The attorney general [of Alberta] feels, and we feel the same way, that a driver’s license is now an important identity document and that it’s open to the legislator, in a regulation, to pursue objectives that are a corollary to the first raison d’etre of the driver’s license,” Harnois said.

She said the AGs are also hoping for some guidance from the court on what governments can do to verify that religious freedom claims under the Charter are based on the claimants’ sincerely held subjective religious beliefs.

Other highlights of the top court’s civil docket include:

Freedom of Information/Solicitor-Client Privilege: Fourteen interveners joined this important Charter appeal by Ontario’s Ministry of Public Safety and Security against an Ontario Court of Appeal ruling in favour of the respondent Criminal Lawyers’ Association (CLA).

Unusually, the appeal pits advocacy groups for lawyers against each other: the CLA and the intervener Canadian Media Lawyers’ Association versus the intervener Canadian Bar Association and Federation of Law Societies. The four associations dispute when, if ever, solicitor-client privileged information held by the government must give way to the Charter’s s. 2(b) guarantee of freedom of expression.

The case arose after a judicial stay of proceedings was granted in a murder case due to abusive conduct by the Crown and police, including deliberate non-disclosure of evidence and non-recording of information. The Ontario Provincial Police (OPP) investigated, but concluded there was no evidence of efforts to obstruct justice. The OPP didn’t release its report.

The CLA sought access, under Ontario’s freedom of information law, to ministry records about the OPP review.

The government refused to disclose the records, citing exemptions in the Act for law enforcement records, solicitor-client privilege, and personal privacy.

The appeal to be argued Dec. 11 will determine whether the public interest override in s. 23 of the Act — which covers some exemptions but not the law enforcement and solicitor-client privilege exemptions – complies with s. 2(b) of the Charter.

The Ontario Court of Appeal split 2-1 to hold that s. 23 unjustifiably infringes freedom of expression. Questions facing the high court include: Does the Charter require that government documents protected by solicitor-client privilege be subject to a balancing test on a case-by-case basis to determine if they should be disclosed in the public interest? Does s. 2(b) include a right to compel government to disclose information?

Counsel for the Federation, Guy Pratte of Ottawa’s Borden Ladner Gervais, told The Lawyers Weekly the umbrella group of legal regulators believes that if the appeal court’s decision is upheld “it would certainly be, at the very least, a first step toward a significant weakening of solicitor-client privilege as a cornerstone of our legal system.”

Other interveners include the Canadian Newspapers Association, the Canadian Association of Journalists, the B.C. Civil Liberties Association, the federal Information Commissioner and seven attorneys general.

Family assets/Financial disclosure: What is the duty on spouses, if any, to provide accurate values of assets within their control, both during mediation and in finalizing agreements? Does access to legal advice fully compensate for a weakened mental state? These are some of the questions posed in the B.C. case of Rick v. Brandsema, to be argued Oct. 14.

The spouses were together 27 years and held equal shares in their dairy farm. The wife twice retained, and fired, a lawyer. Two successive mediators were retained. A memorandum of agreement was drawn up giving the husband the farm and another dairy farm business. The wife was to keep a house bought with farm funds and receive a $750,000 equalization payment. The wife proposed the amount before information on the value of the assets was final. A second lawyer advised the wife that $750,000 could be low and that she shouldn’t renounce spousal support, but she signed the separation agreement.

After the divorce and a consent order dismissed the wife’s claims against the husband, she sued to rescind the deal on the basis of misrepresentation and unconscionability. She alleges misrepresentations on the value of disclosed assets and a failure to disclose some assets. The British Columbia Court of Appeal last year overturned a trial decision which held the separation agreement unconscionable and ordering the husband to pay the wife $461,252.

Employment Law/Restrictive Covenants: Shafron v. KRG Insurance Brokers (Western) Inc., to be argued Oct. 16, deals with the principles that govern restrictive covenants. The appellant agreed to a restrictive covenant when he sold his insurance agency. He began a three-year employment contract with the agency’s buyer. The agency was later sold to another buyer who renewed the applicant’s employment with a contract that also contained a restrictive covenant. The appellant worked for the second buyer for several years but went to a competitor after the contract ended. The British Columbia Court of Appeal held the appellant to be in breach of contract. The appellant contends the appeal court erred by, among other faux pas, applying principles about restrictive covenants in commercial contracts to a restrictive covenant in an employment agreement.