Let Grabher have his licence plate

This column, by me, first appeared in the Toronto Star.

Andrew Vaughan photo/The Canadian press

[Andrew Vaughan photo/The Canadian press]

The Canadian Charter of Rights and Freedoms took a wee hit last week when a Nova Scotia Supreme Court justice told a retired Dartmouth resident that he has no right to put his surname on a vanity licence plate.

Thirty years ago, Lorne Grabher bought a plate that reads “GRABHER” as a gift for his father, whose Austro-German family immigrated to Canada in the early 20th century. After the elder Grabher’s death, his son took the plate and used it until 2017, when a single anonymous busybody complained that it was offensive. Janice Harland, then the province’s registrar of motor vehicles, responded by yanking the plate.

“While I recognize this plate was issued as your last name,” Harland wrote Grabher, “the public cannot be expected to know this, and can misinterpret it as a socially unacceptable slogan.”

This infuriated Grabher, who pleaded with Harland to reverse her decision, then filed a charter challenge when she declined. The Alberta-based Justice Centre for Constitutional Freedoms (JCCF), which opposes efforts by the left to limit charter protections, underwrote his suit.

Let me pause here to say I wish the left-leaning Canadian Civil Liberties Association (of which I was once a director) had taken up Grabher’s cause, just as I wish the right-leaning JCCF had stuck up for Masuma Khan, a student union official that Dalhousie University tried to discipline for an intemperate Facebook post. Devotion to free expression should not depend on the ideological bent of the speaker.

Some dismiss the Grabher flap as trivial, but can’t explain why the citizen, rather than the government, should back down. Others condemn Grabher as an old white man who’s clinging to undeserved privilege. A soupçon of class bias accompanies this perspective, since Grabher, a retired corrections officer, doesn’t naturally attract sympathy from progressives.

At the core of the conflict lies the deep-seated aversion many Canadians have to speech that might offend others. We’re polite, we recoil from verbal conflict. But that’s the thing about free expression: bland, inoffensive speech rarely needs judicial intervention; offensive speech is precisely what needs protecting. What counts, as American jurist Oliver Wendell Holmes once wrote, is “freedom for the thought that we hate.”

To conclude that a plate reading “GRABHER” warrants exclusion from the charter’s umbrella, one must first embrace a farcical theory of the case that sees “GRABHER” as a two-word taunt (grab her), followed by a pearl-clutching escalation of this misreading to a sexual threat. It isn’t “grab her, she’s falling,” “grab her some lunch” or “grab her for the meeting.” Critics see only the most sinister imputation: “grab her by the pussy!”

That’s the logic endorsed by the province’s expert witness, Carrie Rentschler, an associate professor of art history and communication studies and a William Dawson scholar of feminist media studies at McGill University.

Rentschler wrote: ” ‘Grabher’ — read as ‘grab her’ — is a speech act that causes offence, ‘crossing over from expressive activity to threat.’ As an injunction, the phrase encourages its recipients to grab or grope female individuals with or without their consent. ‘Grab her,’ then, is a command that targets a particular class of people: girls and women.” Those who disagree, she added, “condone violence against women.”

Nova Scotia Supreme Court Justice Darlene Jamieson’s decision begins with a respectful nod to the Supreme Court of Canada, which has directed courts to “take a generous and purposive approach to the interpretation of the rights and freedoms guaranteed by the charter.”

Jamieson then sets off in search of abstruse technical excuses to ignore the charter. In this quest, she leans heavily on the fact that licence plates are, technically, government property. This alone, she opines, disqualifies Grabher’s surname from charter protection, since the government is free to decide what can and cannot be written on its own “private property.”

That’s not what the Supreme Court of Canada ruled in Greater Vancouver Transportation Authority v. Canadian Federation of Students, in which a student group challenged a transit authority ban on political ads on the side of government-owned buses.

“Having chosen to make the sides of buses available for expression on such a wide variety of matters, the transit authorities cannot, without infringing Sec. 2(b) of the charter, arbitrarily exclude a particular kind or category of expression that is otherwise permitted by law,” wrote Chief Justice Beverley McLachlin.

But Jamieson rejects the comparison with municipal bus advertisements on the grounds that, unlike the sides of buses, “government licence plates are not ‘public places’ with a history of free expression. They have not been used traditionally as forums for public expression or debate.”

This is just wrong. For decades, the provincial government has sold Nova Scotians the right to use the seven most prominent characters on their government-owned licence plates for a wide variety of expressive purposes: puns, jokes, rebuses — even surnames.

Perhaps suspecting she may be off base in rejecting the analogy with bus advertising, Jamieson adds a backup rationale for banning the plate. She adopts Rentschler’s argument that, absent any indication it’s a surname, “GRABHER” can “reasonably” be read as an invitation to sexual assault. Preventing the harm that could result constitutes a “pressing and substantial objective,” warranting an exception to the charter guarantee of free expression.

The harm to Grabher doesn’t factor in, nor does the pressing and substantial value he places on his good name.

“Every single work day, my last name was prominently displayed on my uniform with the Department of Corrections,” he told the court. “The province never once informed me … that my last name was a socially unacceptable slogan. I was never told to cover my name up because it might offend someone.”

Freedom of speech if necessary, but not necessarily freedom of speech.

Someday, Canadians will look back at this era and roll their eyes at the convoluted, illogical cant we talked ourselves into, because people of a certain viewpoint insisted on the right to shut down any expression that offended them.