Jennifer Taylor

The case of Lorne Grabher and his personalized “GRABHER” license plate has grabbed many headlines. Mr. Grabher (“Applicant”) launched a constitutional challenge after Nova Scotia’s Registrar of Motor Vehicles cancelled his personalized plate in 2016, alleging violations of his freedom of expression and equality rights. The Supreme Court of Nova Scotia has now released its decision in the matter, reported as Grabher v Nova Scotia (Registrar of Motor Vehicles).

Justice Darlene Jamieson concluded that “there is no constitutionally-protected right to s. 2(b) freedom of expression in a government-owned, personalized” license plate and dismissed the application.

Background

The personal license plate had been in the Applicant’s family for 27 years, and it was renewed annually. That all changed in October 2016, when the Registrar received a complaint about the plate. This timing was not coincidental: October 2016 also saw the release of the infamous Access Hollywood tape in which Donald Trump was heard making vulgar “grab her”-type comments, shortly before the US presidential election.

The Applicant said the plate was designed to signal pride in his surname and Austrian-German heritage, and had nothing to do with Trump (but Trump still gets a few mentions in the decision).

In December 2016, the Registrar wrote to the Applicant to advise that his plate was being cancelled, stating in part: “While I recognize this plate was issued as your last name the public cannot be expected to know this and can misinterpret it as a socially unacceptable slogan.”

Section 5 of Nova Scotia’s Personalized Number Plate Regulations authorizes the Registrar to refuse to issue a personal plate in certain circumstances, including where the plate “contains a combination of characters that expresses or implies a word, phrase or idea that is or may be considered offensive or not in good taste.”

Constitutional procedure

Rather than applying for judicial review of the Registrar’s cancellation decision, the Applicant brought this application, arguing that the decision infringed his Charter rights to freedom of expression and equality, and also asking for the relevant provisions to be struck down.

Ordinarily, a case about the particular impact of an administrative decision would be reviewed on the Doré / Loyola standard. But here, the Applicant also asserted that the provisions were unconstitutional, no matter how they were applied in an individual case. Justice Jamieson did not apply Doré / Loyola but noted that the Oakes test (which she applied in her provisional section 1 analysis, as discussed below) addresses the same proportionality concerns.

Freedom of expression – Section 2(b) of the Charter

The Court applied the three-part test from Canadian Broadcasting Corp v Canada (Attorney General) (“CBC”):

1. Does the activity in question have expressive content, thereby bringing it, prima facie, within the scope of s. 2(b) protection?
2. Is the activity excluded from that protection as a result of either the location or the method of expression?
3. If the activity is protected, does an infringement of the protected right result from either the purpose or the effect of the government action?

There was no dispute that “personalized license plates contain expressive content” — and that, in this case, “GRABHER” was expressive content. The real debate was on the second issue: whether the expression was excluded from section 2(b) protection because of the location: a license plate.

Under the Motor Vehicle Act, license plates are “the property of the Crown.”

This property element led the Court to compare expression on a license plate to expressive activities in places like government buildings and on public transit. In other words, the Court treated a license plate as a location. The “location” case law requires considering whether the place in question — here, a government-issued license plate — is “compatible with free expression.”

As reviewed in CBC, the Supreme Court of Canada has held that “airports, hydro poles, city streets and buses are locations where engaging in certain expressive activities is not inconsistent with the other values s. 2(b) is meant to foster even though their primary function is not expression.”

Here, however, Justice Jamieson found that the “nature of a license plate is not compatible with free expression in the sense contemplated by s. 2(b).” She accepted that the “primary function of a license plate is not expression but is identification and regulation of vehicle ownership.” Furthermore, Nova Scotia has extensive rules on the letter and number combinations that may be included on a personalized plate, so access to expression is already quite limited.

Still, it is difficult to understand how a license plate is not a “place” for expressive activity when the government has chosen to enable personalized plates through the Regulations. From that perspective, it seems clear that the Registrar’s authority to refuse a plate believed to be “offensive or not in good taste” is a limit on expression. In fact, this was Justice Jamieson’s alternative conclusion, in case she was wrong that a license plate is not a place for Charter-protected expression.

This alternative analysis seems more consistent with CBC, and with a recent Manitoba decision on a similar issue, Troller v Manitoba Public Insurance Corporation. At issue in that case was a personalized plate reading “ASIMIL8” (according to Mr. Troller, this was a reference to the Borg in Star Trek). Mr. Troller had this plate for about two years before Manitoba Public Insurance (“MPI”) demanded he surrender it on account of its “offensive” language.

MPI argued that the word “assimilate” has to be considered in the context of Canada’s harmful treatment of Indigenous people (including official government policies of assimilation) and ongoing steps towards reconciliation. MPI referred to the Truth and Reconciliation Commission; Manitoba’s Path to Reconciliation Act; and even academic research on Star Trek as “a metaphor for colonialism.”

Justice Lanchbery accepted that Mr. Troller’s personalized plate was a “location where free expression is entitled to s. 2(b) protection” and found that MPI’s decision infringed section 2(b). However, applying the Doré / Loyola framework and appreciating the broader context, he found the infringement was justified, as it reflected a proportionate balancing in the circumstances.

Justice Jamieson in Grabher, in her main analysis, expressly disagreed with Troller’s finding that section 2(b) protects expression on personalized license plates.

In the result, Mr. Grabher’s section 2(b) argument failed.

Equality rights – Section 15(1) of the Charter

The Applicant’s section 15(1) argument was easily rejected. The Regulations did not “create a distinction based on an enumerated or analogous ground”, and the Registrar “did not recall Mr. Grabher’s personalized plate because he is of German-Austrian heritage.” The Applicant could not establish a discriminatory disadvantage just because “his surname has become highly publicized” and his feelings were hurt when the plate was recalled.

Justification – Section 1 of the Charter

Because of her alternative conclusion on section 2(b), Justice Jamieson went on to apply the Oakes test to determine whether the limit on expression was reasonable under section 1. She found the limit was “prescribed by law” through the Regulations, which were sufficiently precise even though they did not define “offensive” or “not in good taste.”

As well, the Regulations had a pressing and substantial objective: preventing harm from messaging that could be seen to encourage gender-based violence. (Both sides had provided expert evidence on this issue.) Justice Jamieson cited a passage from the Supreme Court of Canada’s recent decision in R v Barton, where the Court said that “[w]ithout a doubt, eliminating myths, stereotypes, and sexual violence against women is one of the more pressing challenges we face as a society.”

Another important objective, the Court found, was preventing harm to Nova Scotia’s brand, which is expressed through provincial license plates. (The standard plate contains the image of the Bluenose and the well-known slogan “Canada’s Ocean Playground.”) According to the Court, “The government, on its government-owned, personalized license plates that allow only limited access, should not be required to publish words with which it does not wish the province to be associated.”

There was a rational connection between the objective and the limit — despite the Applicant’s best efforts to argue otherwise by pointing out potentially offensive place names (including the obvious one of Dildo, Newfoundland and Labrador) and edgy public advertising campaigns, like Halifax Water’s recent “Powerful Sh*t” and “Be proud of your Dingle” ads.

The minimal impairment step was met, too. The government needed a catch-all way to prevent offensive language from appearing on license plates, and the Applicant could still display his surname on his vehicle using a bumper sticker or decal. Overall, the Court found the benefits of the provisions outweighed the negative impact of the infringement.

Conclusion

Time will tell whether Mr. Grabher will appeal this decision — and grab more headlines in the process. Even without his personalized license plate, the Court made clear that he has other ways to express himself on his vehicle: he can always put his name on a bumper sticker.