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Section 2(b) of the Charter does not apply to personalized license plates

Nova Scotia

,

Canada

In Grabher v. Nova Scotia (Registrar of Motor Vehicles), 2021 NSCA 63, for over 27 years, the appellant applied for, and was granted permission to, display GRABHER on his government-issued license plate. In December 2016, the Registrar of Motor Vehicles (the “Registrar”) advised the appellant that his personalized license plate was to be recalled as it may be misinterpreted as a “socially unaccepted slogan”.

The appellant brought an application in the Supreme Court of Nova Scotia, where he asked the court to find the Registrar’s decision to recall his personalized license plate, and the regulation that permitted her to do so, contravened his freedom of expression (s. 2(b)) and equality rights (s. 15) guaranteed under the Canadian Charter of Rights and Freedoms (the “Charter”).

The hearing judge concluded that the revocation of the appellant’s personalized license plate did not contravene either s. 2(b) or s. 15 of the Charter. The appellant appealed this decision.

Section 2(b) of the Charter Does Not Apply to Personalized License Plates in Nova Scotia

Bourgeois J.A. upheld the hearing judge’s conclusion that s. 2(b) rights do not apply to personalized license plates in Nova Scotia. Bourgeois J.A. set out the three-part test, laid out in Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, which required consideration of:

  1. whether the activity in question had expressive content;
  2. whether the activity was excluded from s. 2(b) protection as a result of either the location or the method of expression; and
  3. if the activity was protected, whether s. 2(b) was infringed by either the purpose or the effect of government action.

The second prong of the test was the heart of the analysis. Bourgeois J.A. found that the hearing judge was correct in concluding the nature of personalized license plates make the location incompatible with the guarantee of open, free and unconstrained expression (para 71). For the following reasons:

  1. all license plates issued in the Province, including personalized license plates, are government property (para 42);
  2. the regulatory provisions under the Personalized Number Plates Regulations demonstrated that the Province had not invited open and and free expression in this space but only limited and constrained access (para 58);
  3. although some persons can express themselves within the constrains of the space, the same cannot be said for everyone. This highlights the unsuitableness of this particular location for the application of s. 2(b)—a freedom guaranteed to all, not just some (para 67);
  4. the expression must function in this space to serve its primary function (providing a unique identifier for every registered vehicle).  Permitting free expression on personalized license plates would mean an applicant could insist on intruding and presenting their message, even if it were identical to another’s.  This again demonstrates that free, open and unconstrained expression is incompatible with this location and its actual function (para 68); and
  5. s. 2(b) protections cannot be established where some expressions of “truth” can fit within the space when not all are able to (para 70).

The Appellant did not Establish That His s. 15 Rights Were Breached

The appellant did not demonstrate the decision to revoke his license plate arose due to his ethnicity.  Nor did he establish the Registrar’s action served to perpetuate disadvantages suffered by persons of Austrian-German heritage. The appeal was dismissed (paras 78-80).

April 14, 2022
Grabher v. Nova Scotia (Registrar of Motor Vehicles), 2021 NSCA 63