ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
FERRIER, GROUND and CRANE JJ.
B E T W E E N:
GEORGE BOTHWELL
Applicant
Clayton Ruby and Emily Morton for the applicant
- and -
THE MINISTER OF TRANSPORTATION OF ONTARIO and THE REGISTRAR OF MOTOR VEHICLES
Shaun Nakatsuru and Shannon Chace-Hall for the respondents
Respondents
Heard: October 21, 2004
THE COURT:
The applicant George Bothwell applied to the Ministry of Transportation of Ontario (“the Ministry”) and the Registrar of Motor Vehicles (“the Registrar”) for an exemption on religious grounds from the requirement to have a photograph on his driver’s licence (referred to by the Ministry and the Registrar as a “permanent photo exemption”). Government policy permits such exemptions provided prescribed conditions are met. The Ministry and the Registrar denied the applicant’s request for an exemption from the photo requirement. The applicant seeks judicial review of that decision.
The evidence on this application is by way of affidavits, transcripts of cross-examinations thereon, and documents.
The applicant owns and operates a farm in Owen Sound, where he lives with his wife Azelda and four of their eight children. He and his wife have been married for 31 years. He was born in Owen Sound in 1946, and has lived on the family farm all his life. His children are the fifth generation of his family to live on the same century farm settled by their great-great-grandfather.
The applicant has had an Ontario Drivers Licence since 1962, and had an AZ Commercial Truck Driver designation. For many years, no photographs were required at all for drivers licences. When the requirement for a photo card as part of a driver’s licence was initiated by the Ontario government, ordinary single Polaroid photographs were used. From the time that photographs were first required on driver’s licences in the 1980s until late 1997, the applicant possessed a drivers licence with a single Polaroid photograph of himself on the photo card portion, which he carried in his wallet.
In November 1997, the applicant attended at the Ministry of Transportation licensing Office in Owen Sound to renew his AZ driver’s licence. He observed that there was a new system for taking photographs in place, which used an automated digital camera. There was a cable going out of the camera which connected to a computer. He objected to being subjected to this procedure and wanted more information so he could make an informed decision. According to his affidavit, when the clerk advised him that he would not immediately receive the new licence, as in the past, and that his photo would be stored in a database and not limited to being held on his person, he refused for religious reasons to have a digital photo taken. Because he refused to have his picture taken, the clerk at the government office refused to issue him a new drivers licence.
There followed a lengthy period of communication and contact between the applicant and the Ministry of Transportation. In December 2002, the Ministry advised the applicant of the decision to deny his application for a permanent photo exemption on his driver’s licence. He was advised that the materials submitted by him did not satisfy the criteria for exemption on religious grounds (the only basis for an exemption).
In January 2003, the Ministry advised the applicant that:
Your application materials have not established that you are a member of a registered religious organization that prohibits its members from being photographed for religious reasons, nor the certification of your membership by the organization’s religious leader provided.
In the intervening period, a series of temporary valid driver’s licences without photos were issued to the applicant, while his communications and contacts with the Ministry progressed.
The applicant brings this application for judicial review of the decision denying him a permanent photo requirement exemption.
The decision to deny the applicant an exemption from the photo requirement for a drivers licence and to deny him a drivers licence without a photo was made pursuant to a statutory power of decision, namely ss. 32(5) and (13) of the Highway Traffic Act, and is thus subject to judicial review.
In summary, the applicant argues that the Ministry policy violates s.2(a) of the Charter in the requirement that an individual be a member of a religious organization, that the application for exemption be supported and substantiated by the individual’s religious leader (reinforcing the requirement of membership in a congregation), and thirdly, by requiring the applicant to provide actual scriptural passages to substantiate the religious prohibition (this would exclude adherents of religion who either do not rely on any written scripture, or whose belief regarding photographs is not based on a written passage of scripture but is still a sincerely held religious belief).
The respondent argues that the applicant has not demonstrated a sincere religious belief being at the root of his objection. The respondent argues that this is fatal to the application.
For the reasons which follow, the court agrees with the position of the respondent on the issue of sincerity of religious belief. The applicant has not met the burden upon him of establishing that a sincere religious belief prevents him from submitting to the requirement of a driver’s licence photo.
In view of the court’s findings on this issue, it is unnecessary to decide whether the Ministry requirements for photo exemptions violate s.2(a) of the Charter.
Similarly, it is not necessary to decide whether the exemption policy is a justifiable limit on the applicant’s freedom of religion under s.1 of the Charter.
It is to be noted that the wisdom, propriety and necessity for a universal photo identity scheme in the context of drivers’ licences is not challenged in this case. The rationale for the policy and the extensive need for drivers’ licence photos are explored fully in the material filed and are not in issue.
The Applicant’s Asserted Religious Beliefs
The applicant sets out in detail in his sworn affidavit his asserted religious beliefs and his religious objection to having his photograph taken and the digital image entered in the driver’s licence database. What follows is excerpted from his affidavit.
The applicant’s religious objection to having a photograph taken for his drivers licence and entered in the drivers licence database arises out of his fundamentalist Christian beliefs, and his own study of the Bible. As a fundamentalist Christian, he believes that he has a personal relationship with Jesus Christ and His Holy word. As such, he does not belong to any congregation, nor does he have a religious leader on Earth to whom he can go to substantiate his religious beliefs.
The applicant’s religious objection to having his photograph taken and the digital image captured entered in the drivers licence database arises primarily out of Revelations Chapter 13, and the Second Commandment. Revelations Chapter 13 talks about the end of times. Revelations Chapter 13: 13-18 in the King James version of the Bible states as follows:
(13) And he doeth great wonders so that he makes the fire come down from heaven on earth in the sight of men.
(14) And deceiveth them that dwell on the earth by the means of those miracles which he had the power to do in the sight of the beast; saying to them that dwell on the earth, that they should make an image to the beast, which had the wound by a sword, and did live.
(15) And he had power to give life unto the image of the beast, that the image of the beast should both speak, and cause that as many as would not worship the image of the beast should be killed.
(16) And he causeth all, both small and great, rich and poor, free and bond, to receive a mark in their right hand, or in their foreheads;
(17) And that no man might buy or sell, save that he had the mark, or the name of the beast, or the number of his name.
(18) Here is wisdom. Let him that hath understanding count the number of the beast: for it is the number of a man; and his number is six hundred threescore and six.
The applicant asserts that he believes that the taking of a digital photograph of the face and having that image entered in the drivers licence database is the causing of one to deliver an exact copy or express image from the face which is referred to in Revelations Chapter 13, and that its effect is to mark the person whose picture is taken for the Anti-Christ. He bases this belief on his own study of the Bible, and on his study of the Exhaustive Concordance of the Bible by James Strong. Strong’s Concordance shows that the word “receive” [Strong 1325] in Revelations 13:16 comes from the Greek word “didomi”. Included among the meanings in Strong’s for the Greek word “didomi” are: “Deliver (up)”, “give”, “grant”, “offer”, “utter”, “yield”. The Greek word for “mark”, [Strong 5480] “charagma” can be translated as an “etching, i.e. stamp (as a badge of servitude).” A “stamp” (“charakter”: Strong 5481) the figure stamped is “an exact copy” of figuratively, “a representation” or “express image.” “Forehead” (“metopon”: Strong 3359) can be translated as “the face”. Thus, based on going back to the original Greek words of the Bible, Revelations 13:16 can be translated as:
And he causes all, both small and great, rich and poor, free and bond, to deliver up an exact mirror image copy, or express image from their right hand or the face. And that no man might buy or sell, save he that has given over ownership of his mirror image as the mark (of the beast), or the name of the beast, or the number of his name. The number and name of the beast is 666.
The applicant asserts that his religious beliefs are also based on Revelations 14:9, 10 and 11, and 19: 20 and 21, which instructs that those who worship the beast and his image and receive his mark, will experience Gods’ wrath and be tormented forever. Revelations 20:4 instructs that those who do not receive the mark or worship the beast live and reign with Christ. The applicant states that he believes that those people who do not yield ownership of the image of their face or hand to the beast, at the bank, the checkout counter, or the merchandise outlet, and who do not fawn before the camera in servitude to access, money, goods or services that are rightfully theirs, live and reign with Christ. The Bible also instructs that the mark of the beast and worshiping the beast will be brought to people in the guise of peace and security. When people finally believe that they have achieved peace and security, destruction as a result of worshiping the beast and taking his mark will occur (Thessalonians). The applicant’s beliefs with respect to the effect of the book of Revelations and the mark of the beast are set out in two versions of a document he prepared entitled “Application for Exemption from Live Digital Capture Photo.” He provided the first version to Pat Roberts at the Ministry in January 1999. The second version was provided to James O’Mara at Ministry in 1999 or 2000. The applicant states he believes and adopts the statements set out in those documents.
The applicant avers that his religious beliefs which prevent him from having a photograph taken for his driver’s licence are also founded in the Second Commandment. The Second Commandment found in Exodus Chapter 20, verses 4-6 and Deuteronomy Chapter 5, verses 8-10 states:
Thou shalt not make unto thee any graven image, of any likeness of anything that is in heaven above, or that is in earth beneath, or that is in the water under the earth: thou shalt not bow down thy self to them, nor serve them: for I the Lord thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourth generation of them that hate me; and showing mercy unto thousands of them that love me and keep my commandments.
Strong’s Concordance gives the word “eis” [Strong’s 1519] as the original Greek word for “unto”. “Eis” can be translated into English not only to mean “unto”, but also to mean “of”. “Graven” in the Oxford dictionary is interpreted to mean “fix indelibly in or on ones memory etc.”. In terms of current technology, the applicant says that this refers to computer memory. Hence the Second Commandment can be read:
Thou shalt not make of thee, any image, fixed indelibly in a computer’s memory...nor serve any such created image or likeness.
The applicant asserts that he believes that the taking of digital photographs for drivers’ licences and for other purposes is making a graven image, and that people are being made to serve that image. In the past, he felt that an ordinary (non-digital) photograph did not violate the Second Commandment because the photograph was on his person and in his control. As such, he did not feel that it was in the nature of a permanent mark (of the kind described in the Book of Revelations). However, he now feels that he did not fully recognize the import of the Second Commandment at that time. He now believes that a regular photograph on drivers licence would also offend the Second Commandment.
The applicant asserts that he believes that the meaning of the verses of the Bible referred to above is only now being revealed as technology develops. Chapter 12, verses 4 and 9 of the Book of Daniel says that the meaning of these things are “closed up and sealed till the time of the end.” He also believes that the Bible uses generalities in describing things. Because it was written 2000 years ago, words did not exist to describe many things which exist today.
The Applicant’s Contact with the Ministry and his expressed concerns
The applicant submitted a Driver’s Licence Renewal Application to the Ministry on January 16, 1998. In cross-examination, the applicant testified that he did not have a religious objection to digital photographs on driver’s licences or any other form of identification prior to attending at the Driver’s Licence Issuing Office in November 1997. At that time, seeing the digital camera triggered his concern, although he did not raise a religious objection, he asked if there was any exemption to the photo requirement and, when he was given a religious exemption form, he then researched scripture and digital imaging technology and made his religious objection on July 2, 1998. Prior to this application, the applicant had a driver’s licence with a Polaroid photo of his image on it. He was a parishioner in Reverend Hodgin’s Anglican Church from 1992-2001. When he found out about the Ministry’s exemption policy, he began to search for a congregation to join that had a religious objection to photographs, without success.
The applicant failed to submit in support of his application copies of scriptural passages substantiating his religion’s prohibition against being photographed or a declaration from a religious leader, as required by the Permanent Valid Without Photo {“PVWP”) criteria, either when he submitted his application form on July 2, 1998 or in response to a Ministry request dated August 4, 1998. Ministry staff advised the applicant by letter dated September 17, 1998 that his application for an exemption from the driver’s licence photo requirement on religious grounds was denied, pending receipt of the additional information that the Ministry had requested. The applicant was sent a temporary licence, valid until February 10, 1999, permitting him to drive in the interim. The Ministry continued to issue the applicant temporary drivers licences, valid without photos, to allow him to drive pending a final decision regarding his exemption application.
Over the period from when the applicant submitted his application for an exemption on religious grounds to when the Ministry rendered its final decision on December 23, 2002, considerable correspondence was exchanged between the applicant and Ministry staff.
In addition to regular correspondence outlining his objection to digital photos on driver’s licences and inquiring as to the status of his application, the applicant submitted further materials in support of his Application to the Ministry on an on-going basis, which the Ministry reviewed in assessing his application. These materials included letters from Mr. Alan L. Emerson, who the applicant had appointed as his agent and representative; two statements outlining his religious beliefs; letters from members of the clergy expressing support for the applicant’s “exercise of contentious objection”; and videotaped television shows, material from web pages and references to Information and Privacy Commissioner/Ontario discussion papers, all dealing with privacy concerns.
The applicant also spoke with Ministry staff on the phone and met with senior level staff to discuss his request for a permanent exemption to the driver’s licence photo requirement on religious grounds, including the Assistant Deputy Minister for the Road User Safety Division; the Deputy Registrar of Motor Vehicles; the Director, Licensing and Control Branch Operation; the Acting Supervisor and the Manager of the Licensing Administration Office; and Senior Ministry Counsel.
In addition to assessing the materials that the applicant submitted in support of his application for a religious exemption against the Ministry’s PVWP criteria and meeting with the applicant, the Ministry sent the applicant’s application to religious advisors for review. The individuals who reviewed his application were:
The Reverend David Reed, Ph. D, Associate Professor of Pastoral Theology, Wycliffe College;
Linda Bartolo, Senior Operational Policy Officer, Operational Policy Office (Master’s in Divinity, Toronto School of Theology, University of Toronto); and
Desmond Scotchmer, Senior Operational Policy Officer, Operational Policy Office (significant theological experience).
The religious advisors concluded that the applicant did not meet the Ministry’s criteria for an exemption, noting that the Ministry policy requires membership in a particular religious community that officially upholds the same prohibition on photographs as the applicant. The advisors found that the prohibition against taking photographs of persons has generally not been part of the Christian religion and that the applicant’s objections were not supported by the scriptural passages on which he relied. Two of the advisors also expressed concern that the core of the applicant’s objection was secular, rather than religious, based on his perception of the threat to individual and personal liberty posed by the creation of personal digitized images and information on automated data banks.
On June 10, 2002, James O’Mara, Deputy Registrar of Motor Vehicles, wrote to the applicant to advise him that the Ministry had consulted with religious advisors whose comments would be considered in the Ministry’s final decision. Mr. O’Mara enclosed with his letter to the applicant a summary of the comments submitted by the reviewers and provided the applicant with the opportunity to submit additional materials in support of his application in light of the reviewers’ comments, which the applicant did.
A recurrent theme for the applicant with respect to his application for a permanent exemption to the driver’s licence photo requirement on religious grounds is his privacy concerns with respect the Ministry’s use of the digital imaging photo system. In a letter dated May 7, 1999, for instance, the applicant suggested that the Ministry was engaged in a “horrendous invasion of privacy” on behalf of “the more elite financial private interests”. He wrote:
MTO is presently serving private corporate interests to my detriment regarding electronic personal files they hold in trust, for me to drive on the road. MTO, after affirming privacy protection in writing, “sell” this information to be used for “Hundreds of other applications” which have nothing to do with driving on the roads. This has been done not only without my knowledge and hence my permission, but now continues against my vehement protests.
The total lack of accountable action by MTO on the issue of dispersing control of use over my identification from beyond my person is not acceptable. This action is a total violation of the principle of informed consent. It is not appropriate for the province to allow Imaging Automation Inc. to operate its “PhotoEase and Grabit image Capture hardware” in Ontario without full posted disclosure of both present and the potential use by both the public and private sectors of this new high-tech automated surveillance system. Whether it is by a conspiracy of silence or ignorance, we are allowing what amounts to be an electronic jail to be erected by via [sic] this sterile impersonal digital I.D. system. Who or what will act as warden?
In the day of the Information Age and the increased importance of communication why would the Ministry of Transportation and Communication in Ontario drop Communications? Could this be to give the global private sector unfettered “freedom” to circumvent respect for peoples right to privacy?
The applicant raised similar concerns in a number of other letters to Ministry staff.
The issue of the applicant’s privacy was also raised by Mr. Emerson, in a letter to the Ministry dated November 11, 1998. Mr. Emerson noted that the applicant was concerned:
… about a great deal of the other rationale not supported by legislation that is involved in the photo ID process, not just for the purpose of driver’s licences but for all other purposes they are used. He has expressed these to me in the clearest of terms and I am sure will express them to you when we meet. One area in particular of concern to him is that private information about his status, which is supposed to be protected by law, is being shared with credit reporting agencies and other institutions without his permission or authorization.
The applicant also gave an interview to CBC television, which aired January 24, 1999 on “Undercurrents”, regarding his objections to digital photography, including his application for an exemption to the driver’s licence photo requirement. In the interview, the applicant stated that he believes that in developing a digital imaging system that captures photos electronically “someone is designing a system that has uses that go beyond driving on the road.” He explained: “before I was only used to carrying my photo on my person, but now we’re talking about a photo being handled by an automated system, transmitted globally”. In his view, this could lead to the “capability of total monitoring anywhere a camera is installed”. The applicant also raised concerns about the possibility that digital photo information would be shared across government departments and discussed his earlier opposition to being fingerprinted when he was charged with fraud over the sale of cattle (he was acquitted of this charge): “There again I didn’t want to be registered in the central database.”
The applicant raised similar concerns in a number of letters to the editor that he wrote while his application for a religious exemption was under review by the Ministry. For instance, without any reference to a religious objection, in a letter to the Owen Sound Sun Times, published in April of 1999, the applicant stated:
This system, in abolishing privacy, exposes a dark side of the information age. It has been said that “power corrupts, and absolute power corrupts absolutely”. People who value freedom and privacy recognize that community surveillance programs really and truly decrease peoples’ peace, safety, harmony and independence due to their snitch and squeal nature. Power and control shifts from a local, bottom up, grassroots cohesive community to a provincial, federal or global 1-800, 911, tips, top down electronic control structure that usurps authority and control, making a GDP (sic) increasingly dependent on systems beyond their control.
If you agree that we must not allow such a system, then now is the time to resist it. Simply start with the Ontario digital photo driver licensing. Ministry personnel do not tell you these forms are available and may indeed have been instructed to try to obstruct you, but exemption forms are available. For information or a video, please phone (519) 371-2323.
Again, in a letter to the editor dated February 16, 2001, without any reference to religion, he wrote inter alia:
The only biometric the Ontario government presently uses on all its citizens is the digital facial biometric. It has been clandestinely captured through the Ministry of Transport driver licence renewals in the years 1995 through to 2001 by a system implemented by Ontario’s subcontractor Imaging Automation Inc. of New Hampshire. This information gathering, backed by the threatened loss of driving privilege, generates electronic digital/data on individual Ontarians that the Harris Government sells for global surveillance purposes among other things. This breach of trust which denies Ontarians both informed consent and their established right to opt out points to the lowest form of corruption. Particularly telling is the continued withholding of the provincial “APPLICATION for PHOTO EXEMPTION” document. To help understand the privacy issues it is a great help to read Privacy Commissioner of Canada, Bruce Philips’ submission from November 21, 1996, found on the web at:
http://www.privcom.gc.ca/information/speech/archive/02 05 a 961121 e.asp.
The Cross-examination of the Applicant on his Affidavit
The applicant testified that it is against his religious belief to yield possession of the image of his face and right hand (in either a digital or conventional photograph) to a system that will use the image as an identifier to which he must submit, which he explained means that it is against his religious belief to give up his image to a database. To do so is to submit to the mark of the beast. The applicant testified that he believes that those who submit to the mark of the beast cannot be saved. The applicant testified further that, although one could be saved if one breaches the Second Commandment by making a graven image of any animal or creature,1 which to him means making an image “fixed indelibly in a computer’s memory”, he is increasingly trying to live his life in accordance with this Commandment. The applicant testified that since November 1997 he has been consistent in, and has never wavered from, these religious beliefs, although at another point in his cross-examination, when asked about the limits of his belief, he testified that “that moves from day-to-day” and that he is “increasingly withdrawing from photographs of any description”.2
The applicant testified that the mark of the beast – i.e., an image in a database – is something that he is extremely careful about because there is no redemption for those who submit to that mark, even if they are deceived into doing so since they would be party to the deception. Indeed, the applicant testified he would not even give up a photo of his face or right hand to a family member until he knew for what purpose it would be used. He stated:
Q. But the first mark of the beast being an image in the photo data bank or database is something that you’re extremely careful about because there is no redemption for that?
A. Correct. There is no redemption. Once you – he who receives his mark back from the database and worships the beast, and reverence with respect to a camera, so that camera can act like your debit card or pin number and open your account, or thumbprint. The thumbprint and the iris scan that in January Mr. McGuinty and Mr. Harinder Takar wanted to add to the driver’s licence, you’re familiar with that I presume, these are other identifiers biometrics from the right hand and the face. So, there is no redemption once you participate in that system.
Q. And if you were made to participate, the fact that you were compelled to do so doesn’t really –
A. You won’t be compelled to.
Q. But my question is, if you were compelled to do so –
A. Well, if you’re deceived into doing it. Even the very elect may be deceived.
Q. Does that endanger your redemption according to your belief?
A. With regard to the mark of the beast, yes.
Q. So, even if you were deceived –
A. Correct.
Q. – you ‘re not going to be redeemed?
A. Well, you are – I personally believe that the deception, you will be party to the deception.
Q. So, in other words, you’re very careful about how you live your life in this regard because of that?
A. Lately, I certainly am.
The applicant can operate and drive cars, tractors, and trucks on his 650-acre farm even without a driver’s licence. His two youngest sons, wife and daughters help out on the farm. The applicant’s seven children share his religious objection to the photograph; however, his wife and eldest son did obtain digital photograph driver’s licences. His wife has now applied for a religious exemption but his eldest son decided for insurance purposes to agree to the digital photograph. The applicant also has acted as an agent for others seeking photo exemptions from the Ministry and testified that he knows a number of individuals who share his objection. The applicant testified that he has travelled recently to the United States and did not require photo identification; he testified that he did not have a passport but he thought some of his family members did.
The applicant owns a computer and uses email. He recognized in cross-examination that email may be collected in a central database, including by the government and other large institutions. However, he does not have a religious objection to email. The applicant also uses the Internet, although he testified that he has heard that the “www” part of a website’s URL address stands for “666” (the number of the beast) in Greek or Hebrew and he believes that “there comes a jump-off point … and it’s rapidly heading there, I believe, that you’re not going to access any of these systems without biometric identifiers”. He does not at this time have a religious objection to the Internet.
The Bothwell family owns a digital camera. Despite using e-mail and the Internet, when asked if he had a website, the applicant admitted he did but claimed that he had never visited his own website and “wouldn’t even know how to access it”. A boy who worked on the Bothwell farm for a number of years helped develop the website.
The applicant’s website provides information about the Bothwell farm. Both the applicant’s name and his wife’s name appear on the website. The website includes numerous pages offering to sell organic produce, horses, dogs and machinery. It also includes pictures taken with a digital camera and a positive review of the Bothwells’ digital camera. There are digital photographs of a number of individuals (showing faces and right hands) on the applicant’s web page, including his daughter (who shares his religious objection to photographs). The applicant stated that he “does not think [it’s] true” that it would be contrary to his religious objection to the driver’s licence photo requirement to put a photograph of somebody on the Internet and tried to distinguish Internet photos. However, the applicant admitted that he was aware that the Internet is a global system and connected to all kinds of potential users, including government, banks, and the CIA, any of whom could download any image into a central database. When questioned about whether such a downloaded image could be used as an identifier, the applicant responded, inter alia: “But not – they couldn’t do that. Like I mean, if they want to do that, that’s their business. You’re not being party to that or volunteering to cooperate…”
The applicant was aware that he was being photographed with digital cameras at a news conference held October 12, 2003 with his lawyer regarding this application and that he was voluntarily submitting to having his image captured. He admitted being aware that major news outlets (including the CBC, a Crown corporation) bank their digital photos and post them on the Internet. Yet, he would not admit this as a violation of his religious beliefs. In the newspapers and on television, there were images of the applicant at the news conference with his eyes adverted from the cameras. When asked several times in cross-examination whether averting his eyes had anything to do with his religious beliefs, the applicant finally admitted that he “suppose[d] it must” but that he did not know for sure, suggesting that it had something to do with iris scans or with conveying the importance of “our biometric identifiers”. However, in an interview with the Owen Sound Sun Times given on March 30, 2004, the applicant gave two frontal photos, in which he gazed directly into the camera.
The applicant testified that he has a religious objection to universal product identification codes (bar codes), which he describes as “another component of the total system”. He believes that “666” appears in every universal product code, which indicates that “we are talking about the mark of the beast”. Despite this belief, the applicant purchases products that use universal product codes, explaining that “[t]hey use it but I am not a party to that creation in any way, shape or form”.
The applicant testified that he does not use a cell phone because of concerns that “we are being identified by voice print now, everybody” and that “cell phones, from reports I have heard in the past, all cell phones, well, we know you get a bill for every call. They’re all databased, global positioning, the whole ball of wax”. Despite this, he uses and makes long-distance calls on landline phones, knowing that that Bell Canada keeps a database record of the long-distance phone calls that he makes.
The applicant testified that due to his religious beliefs he would not give even a conventional photograph to the bank since he would then no longer have possession of the photograph. However, the applicant acknowledged that there are surveillance cameras in the banks and ATM machines that he uses; in convenience stores and shopping malls he shops at; and at government facilities he visits, all of which take pictures of him. Although one of the applicant’s beliefs is that the beast systems are being funded and driven by the banks, he continues to enter into banks and use ATM machines. When presented with the suggestion that banks could be storing images in a database he answered:
A. Well, that will be interesting information to know because, you know, you hear all these stories they’re in-house. You talked about closed-circuit surveillance systems here or securities systems. The banks aren’t really clear on that. But at the rate these cameras and particularly these TV screens are proliferating to be around the banks and the Downsview offices of MTO, they’re obviously desensitizing people to this technology.
The applicant also testified that although he did not yet have specific religious objections, he had concerns about the following:
Social Insurance Numbers – the acronym for the Social Insurance Number spells “sin”, which is a contravention of God’s law. The applicant testified that he knows that social insurance numbers are databanked, but that his concerns about this are primarily related to privacy not to religious belief;
911 emergency telephone networks – the applicant testified that he “hasn’t found a religious objection” to 911 emergency telephone networks, although he “hasn’t reflected on that a whole lot”. He recognized that such networks are centralized systems and said that his belief is that:
All centralized, particular global systems are unbiblical. God’s creation here in the world is set up on a nation basis, not a one-world government. The Antichrist system is a one-world system. So, I would say any programs that vulcanize and centralize, control information for the purposes of control are Antichrist;
Global Positioning Systems – the applicant testified that he is “not very experienced with them” but that the “Antichrist world is made up of a one-world system. So, when we talk in terms of global positioning, from that perspective we’re talking it’s leaning into the Antichrist realm”;
tags used for identifying cattle – the applicant that “as we go to radio frequency identification and no doubt biometric identification of this livestock, I definitely believe it will become part of the beast system”; and
DNA sampling – the applicant testified that he does not have a religious objection to DNA sampling at the moment but that this issue “obviously needs researching”.
The Applicant’s Belief Must be a Sincere Religious Belief
Charter claims must be considered in context. The applicant’s claim that his freedom of religion has been violated must be analyzed in the context of the regulation of the use of the public highways. The jurisprudence has firmly recognized that driving itself is a privilege and not a right:
Licensed drivers choose to engage in the regulated activity of driving. They place themselves in a position of responsibility to other members of the public who use the roads.
R. v. Hundal (1993), 79 C.C.C. (3d) 97 at 105 (S.C.C.).
In Galaske v. O’Donnell, [1994] 1 S.C.R. 670, it was noted that the driving of a motor vehicle is neither a God-given nor a constitutional right. Rather, it is a privilege granted by licence. Attached to every right are concomitant duties, obligations and responsibilities. This is true of the licenced right to drive. One of the prime responsibilities of a driver is to see that reasonable care is exercised in the operation of the motor vehicle and specifically, that it is driven in a manner which does not endanger members of the public.
R. v. Bernshaw (1995), 95 C.C.C. (3d) 193 at 210 (S.C.C.).
It is fitting that governmental action be taken to prevent or at least to lessen this carnage on our highways. Proper laws and regulations are necessary to regulate the privilege of driving a motor vehicle on public thoroughfares.
R. v. Ladouceur (1990), 56 C.C.C. (3d) 22 at 39 (S.C.C.).
The violation of religious freedom that the applicant alleges does not result from any state law or act that compels him to observe a particular religious belief or practice, or from any restriction on his ability to manifest his particular religious beliefs. Rather, the alleged burden is an indirect result of the mandatory photo requirement that is attached to the privilege of driving.
Finally, the nature of the freedoms as guaranteed in s. 2 of the Charter does not usually impose a positive obligation on the government. In Delisle v. Canada (Deputy Attorney General), the Supreme Court of Canada held:
It is because of the very nature of freedom that s. 2 generally imposes a negative obligation on the government and not a positive obligation of protection or assistance. … As I said before, except in exceptional circumstances, freedom of expression imposes only an obligation that Parliament not interfere (see in this regard Native Women’s Assn. of Canada v. Canada, supra), and the exclusion of RCMP members therefore cannot violate it.
Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989 at paras. 26, 38.
Hotel Dieu of Kingston v. Ontario (Health Services Restructuring Commission) (1999), 175 D.L.R. (4th) 185 at 190-192 (Ont. C.A.).
It is in this overall context that the applicant’s constitutional claim should be assessed.
The Supreme Court of Canada recently confirmed, in Syndicat Northcrest v. Amselem, that the section 2(a) guarantee of freedom of religion protects sincere individual religious belief and is not limited only to objectively valid belief.
Syndicat Northcrest v. Amselem, [2004] S.C.J. No. 46, 2004 SCC 47 at para. 56.
While a court cannot inquire into the validity of an individual’s religious belief, it can inquire into the sincerity of it. As LaForest J. stated in R. v. Jones, “a court is not precluded from examining into the sincerity of a religious belief when a person claims an exemption from the operation of a valid law on that basis. Indeed it has a duty to do so.”
R. v. Jones, [1986] 2 S.C.R. 284 at 295 (per La Forest J.).
Syndicat Northcrest v. Amselem, supra at para. 51.
In assessing the sincerity of an individual’s religious belief, the court’s role is to ensure that the asserted religious belief “is in good faith, neither fictitious nor capricious, and that it is not an artifice.” The Supreme Court of Canada has cautioned against a rigorous scrutiny of sincerity of religious belief, providing some guidance with respect to assessing sincerity of belief in Syndicat Northcrest v. Amselem:
Assessment of sincerity is a question of fact that can be based on several non-exhaustive criteria, including the credibility of the claimant’s testimony … as well as analysis of whether the alleged belief is consistent with his or her other current religious practices.
Syndicat Northcrest v. Amselem, supra at paras. 52, 53.
The respondents submit that the applicant’s objection to the driver’s licence photo requirement is not based on a sincere religious belief given the inconsistencies between his purported religious beliefs and his practices, as shown by the cross-examination on his affidavit. His true objection to the driver’s licence photo requirement is a secular one related to the danger that he believes is posed to his privacy by the capturing of his image in government databases. This conclusion is supported in particular by the fact the applicant only came upon his “religious” beliefs when he found out that the only exemption that the Ministry offers from the mandatory driver’s licence photo requirement is one on religious grounds.
The respondent argues that the applicant has not demonstrated that his objection to the driver’s licence photo requirement is rooted in religious belief, and he does not have standing to raise Charter arguments regarding the religious beliefs of others with respect to the driver’s licence photo requirement and the religious exemption under the PVWP policy. As a result, the court lacks the necessary factual base on which to determine whether the policy infringes freedom of religion. The Supreme Court of Canada has clearly stated that courts must not decide constitutional issues in the absence of a proper factual foundation.
Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086 at 1099-1101.
MacKay v. Manitoba, [1989] 2 S.C.R. 357 at 362-363, 366.
Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 236 at 253-255.
It is to be noted that on this application the evidence was contained in affidavits and transcripts, not viva voce testimony. That circumstance dictates extra caution in assessing the sincerity of the applicant and necessitates a reminder that a rigorous scrutiny of sincerity is not to be undertaken.
That said, the court is nevertheless of the view that the applicant has not met the burden upon him of establishing the sincerity of his religious belief.
The numerous inconsistencies have been noted above as revealed in his cross-examination. Furthermore, several letters written by the applicant and on his behalf raise privacy concerns, not religious ones.
His farm website, containing digital photos of immediate family members appears to be of little concern to him. The fact that his son has submitted to a digital photo for a driver’s licence, thereby robbing his son of ultimate spiritual redemption, according to the applicant’s asserted belief, appears to be of little concern to the applicant.
His past and current lack of concern for, indeed his consent to, the taking of Polaroid and digital photos of himself tends to belie his sincerity.
Finally, the fact that he raised no religious objection to the digital photo requirement until he was told that the only grounds for exemption were religious ones, is of concern.
None of the facts referred to in these reasons as tending to negate the applicant’s sincerity, taken alone, would necessarily defeat the applicant’s assertion of sincerity.
But taken as a whole and considered against the evidence supporting the applicant on the issue of sincerity, the court finds that the applicant has failed to meet the burden upon him. The applicant has not established, on a balance of probabilities, that he has a sincere religious belief as alleged. This is a fundamental defect to his constitutional challenge.
Accordingly, the application is dismissed.
If the parties are unable to agree on costs, brief written submissions may be made by the respondent within 10 days, and by the applicant within a further 5 days.
Ferrier J.
Ground J.
Crane J.
Released: January 20, 2005
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COURT FILE NO.: 579/03
DATE: 20050120
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GEORGE BOTHWELL
Applicant
- and -
THE MINISTER OF TRANSPORTATION OF ONTARIO and THE REGISTRAR OF MOTOR VEHICLES
Respondents
REASONS FOR JUDGMENT
THE COURT
Released: January 20, 2005
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Footnotes
- On the question of whether the prohibition in the Second Commandment includes a prohibition against graven images of animals, the Applicant testified that “this is something that would need to be studied”.
- The Applicant testified that he was not sure whether, at his news conference on October 12, 2003, he said that he would accept a Polaroid photo on his driver’s licence, although the Toronto Sun reported that he would. In his affidavit, the Applicant stated that he would not accept a licence with a Polaroid photograph, as such a licence would violate the Second Commandment. However, in a letter that Reverend Hodgins wrote to the Ministry on the Applicant’s behalf on June 14, 2002, the Reverend indicated that it was his understanding that the Applicant was willing to submit to a conventional photograph.