Application denied. The actions of the Manitoba Public Insurance Corporation to limit the Applicant’s freedom of expression on his personalized license plate are a reasonable restriction in a free and democratic society.
Native Law Centre CaseWatch Blog
The Applicant is a resident of Winnipeg, Manitoba and an enthusiast of Star Trek, a science fiction television and movie franchise. He requested, and was granted, a personalized licence plate [“PLP”] from Manitoba Public Insurance Corporation [“MPI”] with the combination of letters and a number “ASIMIL8”. He asserts that this combination is a reference to a Star Trek character, the Borg and displayed the PLP for almost two years without incident. However, he was notified by MPI that the PLP was considered offensive and was demanded its immediate surrender, to which the Applicant complied.
The Supreme Court of Canada instructed a court as to how it should address an alleged violation of freedom of expression; s 2(b) of the Charter (Irwin Toy Ltd v Quebec (AG), [1989] 1 SCR 927 [“Irwin Toy”]). This Court found that “ASIML8” does attempt to convey a meaning and meets the first step, as the word itself does not attempt to convey a violent form of expression. This expression is within the protected sphere of conduct. The second step was to determine if the method of expression or the location of the expression is entitled to s 2(b) protection. The third step as outlined in Irwin Toy, was to determine whether the purpose or effect of the government action was to restrict freedom of expression. It was established that MPI’s purpose was to restrict the Applicant’s expression. The s 2(b) analysis in this case turns on the second step, the location of this expression.
The test for location, with respect to expression on government-owned property, is whether the place is public and where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s 2(b) is intended to serve: 1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors were considered: a) the historical or actual function of the place; and b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression (Montréal (City) v 2952-1366 Québec Inc, 2005 SCC 62). The presence of a PLP, like advertising on a bus, is in the public space, not a private space.
Section 1 Charter rights and freedoms, however, are limited in scope and sets Canadian jurisprudence apart from American jurisprudence on free expression. The Court found that Charter protections were engaged, and the proportionate balancing required an understanding by the Court of the PLP program (Doré v Barreau du Québec, 2012 SCC 12; Loyola High School v Quebec (AG), 2015 SCC 12). The MPI brochure sets out the restrictions for a PLP. Its review committee takes extensive steps to avoid unintended meanings outside of their collective knowledge. The Court accepted that “ASIMIL8” was originally approved because the search term entered was “asimilate” as opposed to “assimilate”. The error itself is of no import because MPI reserves the right to recall a PLP and the length of time it took in making the decision was not crucial. MPI believed that when they became apprised of a complaint, this decision required immediate attention and “falls within a range of reasonable alternatives” (RJR-MacDonald Inc v Canada (AG), [1995] 3 SCR 199).
MPI submits that offensiveness is a matter of community standards and the word “assimilate” when considered in the context of Canadian history is on its face objectionable. The assimilation of Aboriginal people was the official policy of the Government of Canada and the Prime Minister in 2008 formerly apologized on behalf of all Canadians for its implementation and ongoing effects (Truth and Reconciliation Commission of Canada, 2015 [“TRC Report”]). Given the history of assimilate, the mere presence of “ASIMIL8” is contrary to a respectful and welcoming environment.
The Court accepts that by choosing to display the PLP on his vehicle, the Applicant was not denigrating Indigenous people. The standard of review, however, is reasonableness. The action of the Registrar in revoking the PLP was determined to be reasonable. The Path to Reconciliation Act played a significant part in the decision. The policy of the assimilation of Indigenous people appears 151 times in the TRC report. The word assimilate has taken on a new meaning within this country. In order to meet the Doré test, the Charter right must be minimally impaired. Following the surrender of the “ASIMIL8” PLP, Troller chose a different word to express his love of the Borg character in Star Trek and was issued a new PLP.