Have the Grapes Really Been Freed?

Published in Orchard and Vine Magazine on: October 16, 2012

With all the excitement surrounding the long awaited legislative amendment of the Importation of Intoxicating Liquors Act (IILA), have you taken the time to consider how the alteration may affect you and your business? The amendment is impacted by provincial law that creates some confusion regarding the real application of the IILA revision to a consumer and the true impact of the amendment, which will vary from province to province. You may choose to do nothing differently at all because the impact on you is minimal.

Okay, let’s back up. Some of you may not have heard of the IILA before, but most will know that until this past summer, it was illegal to bring wine from one province into another, whether for personal consumption or otherwise. It was illegal to do so because of the IILA.

This federal law, dating back to 1928, was brought into force during prohibition when the consumption and use of alcohol was illegal in large part due to the temperance movement and beliefs that alcohol was the source of misery and wrongdoing in society. The provinces repealed their prohibition laws, but the interprovincial shipment of wine remained illegal due to the IILA.

Fast forward 80-plus years to June 28, 2012, when an amendment to the IILA received royal assent and now forms part of the federal law. Thanks to Private Member’s Bill C-311, introduced by Okanagan-Coquihalla MP Dan Albas, the IILA now includes an exemption for the interprovincial importation of wine for personal consumption.

I had the pleasure of meeting with Dan Albas in my office and his dedication to this Bill and the wine industry must be commended. The exemption permits importation from a province “in quantities and as permitted by the laws” of the destination province.

We’ve talked about federal law and provincial laws, but not the difference between the two from a legal standpoint. Here’s a quick crash course on one aspect of constitutional law: Canada’s supreme law is the constitution which gives powers, including the power to make law, to both the provincial and federal governments. This division of powers allows each level of government to reign supreme in its areas. In reality, the powers of the provincial and federal governments are bound to interact and we often see that interaction in our everyday life. More specifically, we see that interaction between the provincial and federal liquor laws.

The division of powers between the levels of government can be seen in the amendment’s reference to provincial law. Despite these changes to federal law the exemption only applies if it complies with applicable provincial law. For example, Alberta has law in force that permits liquor importation from other provinces without restriction on quantity. Ontario has a Private Members’ Bill that passed its first reading in August, which also permits liquor importation without restriction. B.C. has new law that permits the import of up to 9L of wine from another province for personal consumption provided a person actually accompanies the wine across the border.  However, an unlimited amount of wine can be brought into B.C. if it is 100% grown and produced in the province it is shipped from, purchased directly from a winery and for personal consumption. So, you can bring 9L of California wine bought in Ontario into B.C., but 50L (or more) of wine 100% grown and produced in Ontario if purchased or shipped from a winery. B.C. law is more restrictive than many of its provincial counterparts.  Remember this is a summary and you should obtain advice from your lawyer.

It is clear different provinces have different requirements for the importation of wine from other provinces, but what about those provinces with no provincial legislation regarding the importation of wine? Does that mean a person cannot bring wine across those provincial borders despite the IILA amendment until the respective provinces creates law or does it mean a person can freely import wine into those provinces in whatever amounts until that province creates law to say they can’t?

The answers to these questions may have little impact since the crime of interprovincial wine shipping committed pre-IILA amendment was rarely punished; however, these questions remain valid. A crash course in statutory interpretation would take another column, but in my opinion, the legal principle which holds “that which is not prohibited is permitted” governs. Speak with your lawyer for proper advice on the issue.

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