Alberta v. Hutterian Brethren of Wilson Colony (Women's Court of Canada)

(2018) 30(2) Canadian Journal of Women and the Law

36 Pages Posted: 29 Aug 2018

See all articles by Jennifer Koshan

Jennifer Koshan

University of Calgary - Faculty of Law

Jonnette Watson Hamilton

University of Calgary - Faculty of Law

Date Written: August 20, 2018

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 Freedoms. 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 Supreme 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.

Keywords: Women's Court of Canada, Feminist Judgments, Equality, Women and Religion

Suggested Citation

Koshan, Jennifer and Hamilton, Jonnette Watson, Alberta v. Hutterian Brethren of Wilson Colony (Women's Court of Canada) (August 20, 2018). (2018) 30(2) Canadian Journal of Women and the Law. Available at SSRN: https://ssrn.com/abstract=3235444

Jennifer Koshan (Contact Author)

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Drive NW
Calgary, Alberta T2N 1N4
Canada

Jonnette Watson Hamilton

University of Calgary - Faculty of Law ( email )

Murray Fraser Hall
2500 University Dr. N.W.
Calgary, Alberta T2N 1N4
Canada

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