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Let my vino go!

Finally, glimmers of hope that liquor boards may be willing to let Canadians buy directly from vintners outside their home province

From Wednesday's Globe and Mail

Will the wine walls ever come down?

Will provincial liquor boards ever permit honest citizens like you and me to order wine directly from another province or even carry a souvenir bottle home across provincial lines without risking a criminal record? Will Canada fulfill its destiny and become a free-trade zone for the fruit of the vine (or hop plant or grain stalk)?

I thought I'd not live to see the day, even with all those longevity enhancing red-wine tannins coursing through my blood. But for the first time I'm feeling optimistic.

I'm happy to report that modest diplomatic progress has been made between Canadian winemakers and provincial liquor boards since September. That's when I last kvetched about the shame of Canada's interprovincial alcohol-trade barriers.

The liquor boards now appear willing, in principle, to discuss letting Joe Sixpack buy his six-packs or single bottles or 12-bottle cases of wine directly from out-of-province producers."We said we'd be prepared to look at that," Rowland Dunning, executive director of the Canadian Association of Liquor Jurisdictions, which represents the country's 13 liquor boards on issues like this, told me on Monday. Mr. Dunning was reacting to a proposal from the Canadian Vintners Association to address the growing demand for direct-to-consumer shipping between provinces. A meeting to begin talks is scheduled for later this month.

"There's goodwill here," said Paul-André Bosc, chairman of the Canadian Vintners Association. "We do want to see the practice legitimized, and it can be."

As some readers will know, and most others will be shocked to learn, it's illegal to ship or carry alcohol across provincial lines. No wine, no spirits, no beer. Not even Corona Light. A truck full of fertilizer that can be used to set off large-scale explosions? No problem. Smokestack pollution? We'll turn the other way. But a bottle of chardonnay? Not so fast, mister.

I only wish that last bit were an exaggeration. As I reported last year, the Manitoba Liquor Control Commission and the Liquor Control Board of Ontario, in two unrelated cases, cracked down on a pair of B.C. wineries, Red Rooster and Mission Hill, for failing to strictly abide by the no-shipping ban. In Mission Hill's case, the offence rested simply in not explicitly blocking out-of-province orders from its website.

The whole absurd state of affairs has its roots in the 1928 Importation of Intoxicating Liquors Act, a statutory fossil requiring that all liquor entering a province or territory be received by, or essentially sold to, the provincial liquor board. That act was spawned from temperance politics of the day, which in turn was the offspring of the Woman's Christian Temperance Union and the National Council of Women of Canada, who forced and won a prohibition referendum.

By way of introducing my second bit of encouraging news, I'd like to report that we now have solid, scholarly grounds to conclude that the Importation of Intoxicating Liquors Act, or IILA, may be not just irrelevant but unconstitutional.

Ian Blue, a partner with the 200-lawyer Toronto law firm Cassels Brock & Blackwell, has just published an impressively researched paper entitled "On the Rocks?" in The Advocates' Quarterly journal arguing just that. Notably, he looked at two significant Supreme Court of Canada decisions, among others, that laid down an updated interpretation of section 121 of the Constitution Act of 1867, which states that products made in one province must be "admitted free" into each of the other provinces.

"If you apply that interpretation, I don't think anybody could say with a straight face that the IILA was constitutional," Mr. Blue, an energy lawyer who regularly works on interprovincial trade issues dealing with pipelines and power lines, told me.

Mr. Blue's article, which he believes is the first to examine the constitutionality of the IILA, has created a buzz in wine circles, though he concedes it would take deep pockets for a consumer, restaurateur or winery to fight a liquor board.

"He makes the point that the constitution is a living tree, that it's there to be interpreted and applied in a contemporary way, not to rely on dead words written in 1867," said Robert Knox of RH Knox & Associates in Singhampton, Ont., a former senior federal public servant who advises on issues related to domestic trade and who applauds the article.

Mr. Blue also makes the point that, while section 121 of the Constitution deals only with domestically made goods, if the IILA were to be deemed unconstitutional based on his reasoning, liquor boards would additionally lose their control over imported alcohol. The reason? Canada's signature on the North American free-trade agreement and other international trade pacts forces it to treat imported goods as though they had been domestically produced.

In the near term, I personally would be satisfied, as an Ontario resident, with direct access to hard-to-find Okanagan wines such as Burrowing Owl Cabernet Sauvignon, Blue Mountain Pinot Noir and Joie Rosé, or Benjamin Bridge Taurus from Nova Scotia.

As Mr. Bosc points out, the LCBO could still fulfill its role as social-responsibility guardian. Point-of-sale software could be programmed to report the transaction to the LCBO and even to tack on a fair markup for the honourable service of keeping track of where and how much alcohol is being absorbed by the population. In fact, a legalized system of out-of-province shopping has already been tested in the territories, where consumers can apply for inexpensive permits, akin to fishing licences, to buy directly from southern wineries. "It doesn't require new laws," Mr. Bosc says. "It just requires changes to regulations."

Though, come to think of it, new laws might be nice, too.

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