Jan 12, 2018 in Law

Law, State and Citizen

A citizen of a given democratic state is a core founder of statutory obligations under the Constitution; and, therefore, he plays a key role in effecting changes that may be put in order to arrest a situation or an instance of controversy. Quite often than not, there arises some cases in the society leading to an elusive situation of controversies within the state with respect to law, thus, necessitating a change in law statutes. This results in confusion and gross misunderstanding between the authority and citizens, as a rule. As a result, the Constitution of land is subjected to some amendments in order to contain the situation.

For a government to effectively govern over citizens within its border and provide the guidelines upon which the society co-exists, it needs all-round laws that would contain the diversity of its citizens. Besides that, the country is also responsible for the formulation of sufficient provisions that clearly demarcate between what to be done and what not to be done. In other words, the country should have some legal framework and law enforcement agencies being charged with the responsibility of streamlining statutory matters. Consequently, this results into the formulation of legal formalities holding together citizens from all walks of life. However, this happens from within the country border into a common pool and treatment. 

This paper, therefore, seeks to analyze the law and regulations as bounded by Alberta driver licensing and also focuses on the entire legal framework of the Canadian state. Indeed, the paper will explore the legal legitimacy of the view of majority and the legal stance of minority. In this regard, the paper will seek a legal justification of the view of majority with regard to the appearance of the photograph of driving license holders in a license document. To achieve this, the paper will give a sharp focus on the legal and religious perspectives of the issue at hand. Consequently, this will help to explore the legality and illegality of two sides of law that appertains to the appearance of the photograph of an owner as attributable to the section of the Chapter one of the Constitution. Consequently, the paper will also examine the legal provision of law with regard to religious freedom. Therefore, it will focus on the provision of the former segment of the Section 1 of the charter that existed in 2009.

Driver’s License of Alberta

In Alberta, a driver license is given out to seven discrete categories, which allow individuals at different levels to exercise their rights from the motor vehicle training to driving. This, thus, gives the full participatory rights in the exercise of freedom of use of the national infrastructure and personal freedom. In addition, licenses issued assist a recipient to operate commercial vehicles as well as taxis. However, it takes time to become a safe driver. Indeed, the skills and knowledge learnt during the training enables drivers to realize most of their responsibilities, particularly, while being behind the wheel. Besides that, training also ensures that drivers understand and cooperate towards the attainment of a safer traffic attitude. However, Alberta undergoes through a strange vehicle and licensing registration process. In essence, the registration of motor vehicles and drivers’ licensing is isolated from the hands of the federal government and rather owned by private corporations often referred to as registry agents as well as licensed drivers’ examiners (Murray and Cummings 78).

However, despite the large portion of licensing and other legal formalities being left in the hands of a private sector, the government plays a key role in ensuring order and enhancing standards. This is done through the Traffic Safety Act under which various traffic regulations are being enforced. In this regard, every driver is required to drive safely in absence of any alcoholic or influence of other drugs. Drivers caught up in violation of the statutory requirement are not only fined but also issued with a disqualification letter or suspended from driving on public roads. This means that their services are discontinued. Therefore, an offer of the driver license is at the discretion of the private sector with minimal federal interventions. Nevertheless, the regulation of use of the license is left at the discretion of the federal government, which has the singular discretion of cancellation of licenses and reinstatement of the same (Murray and Cummings 82).

For instance, over the years, it has been a federal recommendation for having a photograph of a license holder in a license document. However, this has gone challenged by a minority group with the view that this issue averse violates religious beliefs of the group. Indeed, sometimes the government through the chief justice and the legal team have accommodated to the idea, while at the same time accepting a double preferential treatment of the group. There has had been some exemptions. Over the years, Hutterian Brethren from the Colony of Wilson has gone forth to challenge the legal requirement of a digital photo on the driving license. Indeed, the group was supported by more than 15 other colonies. In their argument, the photo requirement has infringed their religious freedom guaranteed by the current charter (Murray and Cummings 86).

Furthermore, the group has raised an argument that the photograph is contrary to the second commandment against the graven images. However, despite the claims, the Supreme Court of Canada (SCC) has maintained that the photograph requirement on the driver’s license being mandatory. Furthermore, the court has urged the minority group to seek some public means of transport if needed to be for their travelling. Otherwise, they could not drive on public roads. Indeed, the incorporation of the digital photo of drivers along with other facial recognition technologies has been meant to curb against false driver licenses. This could be used in committing an identity theft besides other forms of fraud. In essence, the legal requirement of photograph for the driver is provided for by some legislation sections 14 (1) as well as 19 (2). They refer to the operator’s licensing and regulation of vehicle control enforced in May 2003 under the legal Traffic Safety Act (“Alberta's Graduated Driver Licensing Program 45).

Despite the increased inconsistencies between the minorities and the government, the government of Alberta takes the serious measures to promote and protect both the rights and autonomy of people of Alberta within the provisions of law. However, apart from enhancing freedom and the rights embracement of the people in Alberta, the government further aims at ensuring that the driving license of Alberta drivers as well as the respective identification cards continues to be the most secure in the North American region. Consequently, the insistence on the upload of photographs of licenses is one of the most immediate steps taken to improve the security of the mentioned documents. Furthermore, as a Chief Justice has indicated in the Alberta vs. Hutterian Brethren of Wilson Colony, 2009 SCC 37, the contravention of provisions of the Charter on the Freedom and Rights of all citizens is seen to have a smaller weight as compared to the impact the enforcement of photographs on driving licenses would have on the security situation of the country. In this regard, the legal provision of rights and freedom is, on the other hand, overwrapped by the need to strategize the security measures for all. The legal requirement, therefore, seems to fade away to allow the intervention of other strategic positioning of federal measures which are all aimed at aggregating the security of all citizens, i.e. the minorities and majorities (Mann et al. 104).

As put by McLachlin, security for all is a collective necessity. Anyone needs to lay some strategies within their abilities and abide by federal requirements leading to the full attainment of security. However, C.J. disowns the claims that the requirement of a photograph on driver’s licenses is destined for a negative implication on the freedom and rights of Hutterian. However, the reports that the provision does are not focused on denying the rights of the minorities but rather enhancing security for all. On the contrary, C.J. states that it is only by coincidence that the measure matches with religious beliefs of Hutterian (minorities).

The people of Alberta boast of a well-laid down structure of lawyers performing their tasks independently under the statutory laws of the republic. The Law Society of Alberta is, therefore, a body of lawyers working at the mandate of the Legal Profession Act of Alberta. However, the body is self-sustaining in that it funds all its activities at zero costs to the public. Indeed, the Law Society acts on behalf of the entire public and, therefore, the voice of people in matters pertaining to law and human rights within its limits. Indeed, the body is charged with the noble responsibility of setting up some standards via laws and codes of conduct (Man et al. 109).

Was the Legal Limitation of Freedom of the Minority Legally Binding?

The rights and freedom clauses of people are guaranteed in the Section 1 of the Canadian Charter on human rights and freedoms. In particular, the first Section of the Charter ascertains the guarantee of the listed rights within the Charter. As a result, this section is also referred to as a reasonable limits clause or simply the limitation clause. The main reason for the latter one, the limitation clause is that the section also allows the government to put some limits to certain rights and freedom if this is contributing to the welfare of the majority. Therefore, the clause is self-analytical in that it gives the federal government a singular and legal mandate to alter the expression of the human rights within itself in case of a need for an impressive and strategic intervention. This would see the improvement of the majorities’ lifestyle and promote peaceful co-existence (“Motor Carrier Compliance for Canada” 33).

Indeed, the limitation to these rights has been exploited in the recent past for the purposes of controlling risky adverse behaviors that would result into the social and economic disharmony. Such situations include the instances of a hate speech. However, despite the legal projection that permits the government intervention, the section on the Charter further stipulates the extents of these limits that the federal government can impose for preventing the federal government from the unreasonable interference into people’s lives within a given social and democratic society. For sure, for any government to overturn a former provision in the rights and freedom of individuals there must be a clearly defined balance of probability. This defines the legal prescription of limitation by the law. In this regard, the federal government should impose the limitations on the rights of citizens through a clear procedure stipulated by the law itself (“Motor Carrier Compliance for Canada” 56).

This means that the law remained attuned to specific values of intelligibility and accessibility besides the legal justification within a social and democratic society. The latter one means that the limitations the federal laws may impose must, therefore, bear the features of having both a justifiable and proportional reason for them. As a result, the plan of the government to overturn the freedom and rights of Hutterian being a sample minority group is a misplaced step accelerated by the opinion of the majority despite its noble intention. However, the pre-existing exemptions have done much to bridge a gap but with the complete blow out of the legal confinement of driving license holder. Later, this has resulted in a perpetuated course of double standards without a prior provision based on the limit (Wuthnow 98).

Over and above, the Charter lacks a mechanism for intervening in case of emergency and, therefore, depends on the process of forceful limitations resulting in disharmony, particularly with the oppressed groups. Furthermore, the Charter is also attributed to increasing the powers of judiciary with respect to its review capacity. This has been considerably widened. In particular, the first segment of the Charter is for sure a bulk of the perceived problem. According to Ted Morton and the Professor Rainer, which are also the authors of The Charter Revolution and the Court Party, the two alleges that the judges are given an irrefutable discretion of altering and reshaping policies regarding the Charter. The latter authors further criticize it in the momentous and uncontrolled growth in the powers of the Supreme Court’s clerks. Furthermore, the two ones claim that the Charter bores no reasonable limitations which made Bakan, the author of ‘Oakes Test’ to come up with the famous three prongs’ balancing analysis. In the same light, Bakan is allegedly influenced by the case the studies of the US laws that both Morton and Rainer claim a total disappointment to those praising Section 1 of the Charter. It was, therefore, illegitimate for the minority to be denied from their rights to religion (Murray and Cummings 111).

Comparison of the Charter with Other Human Rights Provisions

The Charter’s provision bears a lot of differences being a sustainable and socio-friendly policy in other regions. A sample instance that contrasts sharply with the Canadian provision is the United States’ policy on the Bill of Rights. Despite the differences in its limitations, the two ones bear some similarities. For instance, the limitations to privacy rights are mutually accepted in both the Canadian and the US statutory provisions. However, there also exist some sharp differences in the limitations that the federal government implies. In this regard, the European Convention, particularly the Article 18, has put some limitations to all particular enumerated restrictions. Indeed, unlike the Canadian Ñharter, the European Ñonvention clearly states that the rights and freedoms as stipulated in the Convention itself has no other applications than the clearly prescribed ones under the law. The Canadian one only limitation is a server of all the enumerated rights and freedom which assume a more general limitation and, therefore, less effective as for the case of the specific limitation within the European Convention (Levy, Karst, and Winkler 134).

Similarly, one of the South African clauses on the Bill of Rights within the country’s Constitution comprises a similar clause to the Canadian Charter’s first section. In particular, the South African Constitution, the section 36, stipulates that the limitation that can be imposed to any human rights should be justifiable when exercised in the open and democratic society. It should always put into consideration the factors that necessitate a given limitation. However, the Canadian Oakes’ test has been subjected to the comparison with the manner, in which other rights within the docket have been limited too. However, the section limits itself to some contradictory clauses and bore no connection with the Aboriginal and Treaty rights found in the Section 35 of the 1982 Constitution of Canada. However, the court also developed other limits pertaining to this section where the legislation at the provincial echelon can limit the aboriginal rights given that it prioritized (Levy, Karst, and Winkler 136).

In essence, the rights of minorities have been sandwiched amidst the views of the majority. The law has been sidelined in favor of the majority’s perception while ignoring what the law itself offers. In addition, it has been quite eminent that the court has been left with the most immense share of discretion for making various alignments in regards to the statutory policies. This has increased the ineffectiveness of law enforcement, while the minority has continued to be on the receiving end of protracted injustice. This has also crippled the course of justice delivery and a consequent denial of justice through the court system sidelining with the wish of the majority.

Case Law of the Religious Freedom and Constitution

There are certain fundamentals of freedom that has been perpetuated through the legislative systems of Canada. In particular, the latter one has been aligned in the Section on Human Rights and Freedom. This has been clearly stipulated in the Charter with only one general limitation as to where such freedom may be exercised. Indeed, the Charter contains a lineup of enumerated laws and regulations pertaining to the freedoms of both minority and the majority groups of state populations. These include the freedom of conscience and religion as well as the freedom of association among others. However, the procedure underlying the limit to such freedom is basically simple and singular for all. Thus, this means that it is an all encompassing general limitation. This, therefore, makes the judicial system assume some excessive powers for the deployment of limits without a mutual consent of ‘stakeholders’ within the target group (Edge 67).

By virtue of the above laws, the Canadians are, thus, legally bound to have the personal beliefs or opinions, while at the same time bearing the discretion to practice any religious beliefs or keep off from any. Besides that, the latter one also implies that Canadians have some legal rights to establish and run any media organizations unbounded or bounded by religious affiliations. Indeed, the Canadian institutions with the religious affiliation, therefore, boast of a charitable status of the particular organization. As a result, they allow the mutual benefits of supporters accruing from their pecuniary contributions. Indeed, Canada is one of the renowned states that state of a strong foundation upon the principles adoring Lord’s Supremacy. However, the last fact has been overlooked while according the legal effect upon jurisprudence of the Charter. Conversely, the legal recognition of God through the Constitution has been criticized. It results into conflicting of its principles with the basic freedom of people with regard to conscience and the guarantee for religion. This does not offer in absolute terms. This is the case since it disadvantages citizens with the polytheistic beliefs such as atheism (Lyon and Van Die 74).

On the other hand, the state Constitution has been deficient on the definition of the role and freedom of religion for a long time. This has necessitated the intervention of the SCC determining the fate and direction to be followed by the majority of religious bodies with respect to the rule of law. For instance, in 1955, the Supreme Court of Canada (SCC) ruled with regard to Jehovah’s Witness over the equality of all religions respecting traditions and rules of law. At this particular time, for instance, the Constitution lacked any clause stipulating the direction upon which the controversy at the court would assume the same argument. In the earliest times, back in 1874, the Judicial Committee of the Privy Council which had been the highest level of the Court system in the country by then also ruled over the Canadian civil courts. They had the discretion and jurisdiction of resolving inter-churches’ disputes and members’ discussions as well (Lyon and Van Die 77).

In essence, the law required that the churches should have some internal dispute resolution techniques. Therefore, the government did not give much attention to the laws and regulations that would define the churches and their code of conducts while regarding their respective followers. In this case, the above information clearly demonstrates the loophole existing since the time immemorial. It still continues to be a challenge in the contemporary government. Furthermore, there has been a perpetuated disregard of churches respecting laws and regulations by the social conduct of believers from virtually all religions. The due inconsistency and the lack of serious legal bindings concerning churches and beliefs for different believers have added up to the negligence on the importance of such beliefs. Therefore, the necessity to incorporate them immutably into the state Constitution has appeared. As a result, the court has been seen to be a dominant dictator of the fate of a church as far as believers are being concerned. Here where the legal directives are pegged on the court judgment despite the biasness.

Observance of Major Religious Days

One of main religious days is the Sabbath Day. The SCC has been making one of the most religious-based verdicts providing some directions to the manner, in which various aspects of churches and other worships are being executed. In essence, the court has stated that there exists the incompatibility between the Federal Lord’s Day Act. This act enforces the total observance of the Sabbath Day with its counterpart provision within the protection that exists in the Charter on Rights and Freedoms, i.e. the controversial Charter. For instance, the court has identified the legislation that restricts shopping on other days than on the Sabbath terming it as a rest day and being a contravention of other people’s rights and freedoms. The overall problem has arisen due to the absence of an aspect of justifiability on the limit upon, which the enumerated statute may have applied. The court further compels the citizens to accommodate the fact that there is a duty for everyone to get used to divergent religious observance. For instance, in 1990, the court faced out a case referred to as the Central Alberta Dairy Pool vs. Alberta. It involved an employer restricting his employee. The worker wanted to observe the Easter Monday as compelled by his religion. However, his employer insisted that the failure to attend to work would result to the employee’s loss of his job. Nevertheless, the SCC found that the employer should have just accommodated the employee’s particular religious beliefs to his own ones (Lyon and Van Die 47).

Conclusion

Finally, there has been a perpetuated absence of the constitutional or legal framework in the Canadian state. It lies down the procedures upon which various religious issues should take in order to circumvent the controversy appearing from different religious beliefs and superstitions. However, it is clear that the Canadian state is the country that has a strong religious foundation. It clearly acknowledges true God. The fact also remains that the country experiences the poor legislations undermining the rights and freedoms of people and religions, in general. As a result, the justice system and the Supreme Court of Canada, in particular, assumes the sole responsibility of directing and setting the pace any time that the controversy strikes. Unfortunately, this has also led to the increased rampancy in biasness as in the case where the majority has won despite the acute daylight contravention of justice. Therefore, despite the humble purpose of improving the security of the overall population, the course of justice, particularly for the minority, has been a hard nut to crack in Alberta and the Canadian state, in general.

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