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MichaelPinkusWineReview Newsletter #269
May 19, 2016
WineReview: But It Is A Big Deal
Grape Guy’s Picks of the Bunch: New & Noteworthy Wines
Weekly Wine Video Series: A Recap of The Latest Videos
Ontario Wine Updates: Re-Tastes and Other Interesting Finds
Grape Guy Events: Make The Most of Your Trip to Wine Country
WineReview: But It Is A Big Deal
There are folks out there who are trying to downplay the importance and game-changing-ness of the ruling by New Brunswick provincial court judge Ronald LeBlanc. Rather than interpreting all the articles written about this for you, I’m going to give you a handful of links to follow; articles that have already been written and make the case for me ... but what I would like to re-look at is an interview I had with lawyer Ian Blue back in 2011 and published twice before … but now his words seem more prophetic and the “[person] with standing in the case” he refers to in his interview was meant to be a winery or wineries, but instead came in the form of one Gerard Comeau – and while the provincial ruling is a small step, this has potential to go to the supreme court of the land, and if that happens watch out … I’ll let Ian explain:
Have you ever been out to British Columbia and brought back a couple of bottles of wine? Better yet, have you ever driven across the border to Quebec and brought back a case of beer? If you have done either of these things then you my friend are a felon, capital F-E-L-O-N. That’s all according to the Importation of Intoxicating Liquors Act (IILA) of 1928, which is still on the books and very much in use by Canada’s liquor boards. What it boils down to is, you can travel to Cuba and bring back 2 bottles of rum, go stateside and return with two bottles of wine, go to Mexico and carry back 4 cervesas; but you can't cross a Canadian provincial border carrying any booze back with you. So, who’s ready to turn themselves in?
Not so fast says lawyer Ian Blue, who has been looking into the matter for us. Ian is an energy lawyer who found himself in a conversation with fellow lawyer, Arnold Schwisberg, about the IILA and like an ear-worm (a song that won’t leave your head) Ian couldn’t stop thinking about the absurdity of the Act. “The constitutional issues around inter-provincial and international sales of energy have equipped me admirably to look at the IILA … it stuck with me until I wrote my paper on the subject ‘On the Rocks’.” Ian subsequently wrote a second article on the same topic (On the Rocks; The Gold Seal Case: A Surprising Second Look); both appear in Advocate Quarterly.
“There is nothing natural or logical about the existing system,” Ian told me. “It bullies, fleeces and frustrates wine producers and the public … If the IILA were to fall ... wine producers could probably make quantum leaps of progress towards a fairer and more rational system of liquor and wine distribution in Canada … I know that challenging the IILA is an idea that is uncomfortable for everyone who has worked on wine policy with government officials to bring about incremental change. Sometimes, however, you have to do something different to push government officials out of their stalactitically slow complacency, especially when they have entrenched benefits.”
It was these words that caught my interest and made me look further into the notion that changes could happen within my own province. If this federal law fell then the country would benefit, from sea-to-shining-sea, I just had to learn more, and the man I needed to talk directly with was Ian Blue. First I had a brief talk with Arnold, he came right to the point about what I was about to learn from Ian: “The very underpinning of Canada’s liquor regulatory system is unconstitutional.” [Ed. Note: Interesting that Arnold join the legal team in the New Brunswick case] He recommended I go right to the source for all the details. I caught up with Ian by phone to find out more about the IILA: what could be done, and what would be the outcome of a judicial challenge.
“The law that gives provincial liquor commissions a monopoly and the power they have, is federal law, the Importation of Intoxicating Liquors Act; it’s highly arguable that the law is unconstitutional. It’s also pretty apparent to government constitutional lawyers, who are knowledgeable in these matters.” He is shocked by the response he’s been getting about this revelation from those within the system (the industry). “I spoke to 3 separate organizations here in Ontario about a possible challenge to the IILA, each said that its organization was not interested in doing that, I had a similar experience out in Vancouver. Yet at the Vancouver conference on wine law and wine distribution there was nothing but a litany of complaints that each of the wine producers or organizations made against the BC Liquor Distribution Branch”, he surmises that the same feelings permeate here in Ontario about the LCBO.
I asked him about the griping and why the industry seemed apathetic about doing something about it: “[My thoughts are]: One, Canadians are generally accepting of the system and don’t want to challenge it. Two, no individual winery has the resources. Three, the organizations that purport to represent the wine industry are bureaucracies and bureaucrats are comfortable existing by continuously meeting with liquor boards and with each other and not trying to change things within the system; they get paid just as much if the system doesn’t change as if it does change.”
But what is the IILA exactly? What is this law that stops us from bringing booze across provincial borders? Or more specifically, stops Mission Hill (or any other BC winery for that matter) from sending me a case of their award winning wine. “The IILA is a federal law and it says that nobody who brings intoxicating liquor into a province can sell it to anybody except the provincial liquor board.” That law is contrary to section 121 of the constitution which reads: “All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.”
“It’s just that simple,” continues Ian, “there’s a section in the constitution that is being ignored by the federal government; the argument is there for the wine industry to make and it would change things.”
But litigation like this would cost, approximately $1.5 million according to Blue, but the chance of winning the case is very high: “[my] law school estimate would be an 80% chance of success,” he claims, but a claim like that must also come with a bit of lawyerly caution: “I would have to say that in our courts today everything is a crap shoot. Especially when it involves big political interests. The Supreme Court of Canada today is not a court of law, it’s a court of law and policy.” But a win would mean so much for those who feel oppressed by the current system.
“Liquor boards would continue to exist, their power would just be diminished,” but they would definitely put up a fight, “You’re fighting entrenched interests, so if you’re diminishing their power they’re going to fight to try and keep it.”
How big a fight? “I would be fighting 10 sets of lawyers one each from every attorney general’s department; probably 10 sets of lawyers from the provincial liquor commission; and probably lawyers from the police associations,” estimates Ian, but that’s just the tip of the iceberg. “What [a win] would mean is that if I wanted to have a private liquor store I could set one up and I could buy directly from the wineries in Niagara or British Columbia or foreign countries. Nova Scotia restaurants could order wines from Ontario. It would just loosen up the system. [It] doesn’t mean licentiousness; the province could still legislate standards for people who work in liquor stores, store hours, security, all safe drinking training, all that stuff; it’s just that you would not need to have liquor and wine sold through publicly funded liquor stores; being sold to you by unionized staff on defined benefit pension plans.”
But what about those who claim a loss of provincial revenue as their argument for keeping the liquor boards as is? According to winelaw.ca, “The Provincial Governments make their money regardless of whether the sale is made in a government store or a private store. In fact, the revenue that government makes from liquor on a per capita basis for 2007/2008 was as follows: $192 for BC [a mix of private and government stores], $190 for Alberta [all private stores], and $139 for Ontario.”
Originally, Ian saw this as a winery issue, but so far none seem interested in changing the system, or are afraid to do so – who wants to take their biggest (and in some cases only) customer to court. “That’s why you would need about $10,000 [paid out over two years] from each winery in Ontario, British Columbia, and Nova Scotia [read: nation wide] … Two things would then happen: one, the challenge could be started and two, no individual winery could be singled out [by a liquor commission] because everybody would be in the game. And the argument for doing it would be that we are only trying to make governments comply with the constitutional rights that all Canadians have.” That’s the scenario if it's taken all the way to the Supreme court. “Realistically, to fight [the kind of opposition he would face] all the way to the Supreme Court of Canada the cost is about 1.5 million – that’s by the time the last dog is shot and the lights are turned off in the courthouse.” But that 1.5 is only if it goes that far, “you could get a very respectable court application prepared, argued and determined in the superior court of any province for much less,” he says to the budget conscious, “say around $50,000.”
The question still remains, who can get involved in the fight, if the wineries, breweries and distilleries don’t seem interested in using their standing in a case like this, and as of right now there seems to be disinterest on their part in getting into it with the boards and the government. “I tried the breweries, the distilleries and the wine industry,” says Ian, “I thought with everyone coming in …” he pauses and changed course. “But a lot of distilleries and the breweries benefit from the current system, and they just can’t get their minds around what would happen if the system changed, and I think a lot of the wineries are that way too.”
That leaves one other segment of the population. Ian believes private interests could get involved, because they too could show standing in this case. They could stand up like Peter Finch in the film Network and say, “I’m mad as hell, and I’m not going to take this anymore”.
With the IILA struck down, “wine connoisseurs would have a much easier time to get imported wines, they would not need to go through the liquor commissions anymore,” says Ian, and it also means better pricing. And more importantly, you could drive that case of beer over from Quebec without fear of the OPP cruiser behind you.
“[If the Supreme Court of Canada] takes a hard look at the IILA, and if they do an intellectually honest interpretation, the IILA probably cannot stand up to constitutional scrutiny,” Ian concludes, it’s just that simple.
I concluded my article in 2011 with the following: “Ian’s prepared to take it to court, he just needs complainants, and 1.5 million, to change the entire liquor landscape of not only Ontario, but the whole of Canada. Who’s ready to jump in?” As it turns out, some 5 years ;later Gerard Comeau did the jumping for us, and I think went it’s all done we’ll owe him a round or two.
Don't Believe Me, Do Your Own Research (5 articles on the subject)
Federal government backs move to liberalize flow of alcohol between provinces
New Brunswick judge throws out cross-border booze limits
Canada's complex liquor laws under spotlight in New Brunswick trial
Canada's weird liquor laws
Interprovincial liquor limits 'unconstitutional,' says lawyer
Big Head 2014 Riesling, Hunter Vineyard - $19.00 (W)
A late-picked Riesling from 20 year old vines, whole cluster pressed, wild fermented and, as the Big Head himself stresses, all fresh fruit … the aromas of apples and peach are seductively Niagara … there is a hint of sweetness but with a balanced mineral / chalky finish – fruit comes across as pear and delicious apple on the palate. At only 11% alcohol this is one of those middling Rieslings that’ll make you ask, do I have another with lunch or not? I say, “what the heck”. Price: $19.00 – Rating: ****+
Kacaba 2013 Cabernet / Shiraz - $39.95 (W)
The Cabernet here refers to both of them: Sauvignon and Franc, which together make up 60% of the blend with 40% being Syrah. Aged 24 months in a mixture of French and American oak. Aromas are black dominated to the tune of berry, cherry and pepper … the palate has some gorgeous fruit and secondary character: cassis and blackberry along with black pepper, tobacco, cocoa and vanilla – share with friends over a meal or, if you’re more apt, hoard it for yourself. Price: $39.95 – Rating: ****
Lakeview Cellars 2012 Merlot, PG Enns Farms - $29.95 (W)
Part of the new LC line that brought us an amazing Cabernet Sauvignon not too long ago released at Vintages. These wines mark the re-birth of the Lakeview label. Here 24 to 30 months in all French wood delivers blueberry, cassis and violet on the nose; wine enters the mouth soft and silky with strawberries, spices, blueberry, cassis and nice tannins, but always with that wonderful fruit to carry it; nice balance of fruit to oak here. Price: $29.95 – Rating: ****
Norman Hardie 2012 Pinot Noir, Cuvee L - $69.00 (W)
With 70% Niagara Pinot in this 70/30 blend, you’d expect a little more ballsier Pinot character, especially because of the warm 2012 vintage these grapes derive from; but instead its delicate from the get-go. Spending 17 months in barrel, of which 6 of those are after the blend, you’ll find vibrant cherry, cran-raspberry, good acidity rounded out by spice and a good mouthfeel. Price: $69.00 – Rating: ****
Peller 2014 Rosé, Private Reserve - $16.95 (W)
Love the fact that rosé is making a comeback, and it’s not the sweet stuff either – dry and delicate seems to be the rosé buzz words these days. Peller has blended a majority of Gamay (78%) with 22% Pinot Noir to create this pomegranate-raspberry focused rosé with earth tones and a lime, citrus pith finish. Really lovely sip after sip. Price: $16.95 – Rating: ****
Rosewood 2015 Gamay Nouveau, “Hair of the Dog” Wismer Vineyard - $14.95 (Sold Out)
Full disclosure here: 1) I love Gamay, 2) not usually the Nouveau kind, and 3) the money backing this particular virtual winery one-off endeavour was partially from my Podcasting partner … that all said I am very critical of friend’s wines – I feel I have to be … Hair of the Dog is a good fruity effort with nice earthy and ripe cherry on the nose; and a palate of ripe red cherry, good acidity and a long finish. By now the wine is probably sold out, but the grapevine says Rosewood, who had to yank out their Merlot vines not too long ago, will be making a Gamay under its own label in the future – time will tell if this is rumour is true. Price: $14.95 – Rating: ****
Availability legend: W (Winery) – L (LCBO/Vintages) – OL (On-Line)
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The Weekly Wine Videos
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Weekly Ontario Wine Videos
Video #175 - Pondview 2012 Bella Terra Cabernet Sauvignon (Niagara)
Video #174 - Big Head Wines 2012 Chardonnay (Niagara)
Video #173 - Niagara College 2012 Dean's List Merlot (Niagara)
Video #172 - Two Sisters 2010 Cabernet Franc (Niagara)
Taste it Again / Lost & Found (blog): the two blogs have merged
(Find out what happened to some favourites and to those that never were tasted)
Taste it Again: Wines During Game 4 of the ALDS
Uncorked Tonight (blog)
When it’s not an Ontario wine, here’s what I’m pulling out of the cellar
New Posts Added
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Episode 11 - The Donald Ziraldo Interview
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