B.C. Broadcaster Challenges Canadian Wine Law

Today, Terry David Mulligan and his golden retriever, Josie, will leave Penticton to drive to Banff for the Banff Rocky Mountain Wine and Food Festival.

In his car, Mulligan, a former MuchMusic VJ and British Columbia-based broadcaster who hosts the program Tasting Room Radio, will carry wine from several Canadian and international wineries. At “high noon,” on the Trans-Canada highway at the British Columbia-Alberta border, he will stop the car and film himself carrying the case over the provincial boundary.

In doing so, he will break a federal law that dates back to the 1920s.

And if no one is there to stop him, Mulligan will walk back to his car, get in and continue to Banff. He plans to arrive in time for a late lunch.

The law Mulligan will defy is the Importation of Intoxicating Liquors Act (IILA). Introduced in 1928, it prohibits anyone other than government-owned liquor boards from importing alcohol into a province.

“Every day, by the hundreds and by the thousands — and eventually by the millions — Canadians come into Ontario from other parts of the country and they buy their wine, or they go into Nova Scotia or they go into British Columbia and they buy their wine and they go back to their home province, with their wine in their motorhome or in the trunk of their car — they have broken this law. We are forced to break this law each and every day. The law has to change,” Mulligan says.

Importation of Intoxicating Liquors Act

To understand this law, it’s necessary to go back to when it was created, as Prohibition was coming to an end in Canada, says Mark Hicken, a Vancouver-based lawyer who provides services to the wine industry

“British Columbia ended Prohibition in 1921 and was the first province to switch to a system of government control. And then the other provinces all ended Prohibition within a few years after that,” Hicken explains.

“At that point there was a huge problem with bootlegging. The provinces had difficulties because one province might have ended Prohibition and the neighbouring province still had it, and even though the province had decided to carry on with Prohibition, people within the province could just order liquor from a different province, or they could buy it from bootleggers. … And so [the provinces] lobbied the federal government to act and to introduce this 1928 law, which would make it illegal to transport liquor across provincial lines, unless it was going to a government-controlled system.”

Eighty-three years later, the act is still on the books, although Hicken says that, to his knowledge, no one has been charged under the federal law since at least the 1960s. It’s outdated and no longer serves the purpose for which it was intended, he says.

“For the life of me, I can’t think of any reason you would want to keep this law, aside from revenue reasons.”

In practice, the IILA prevents Canadians visiting domestic wine regions outside of their home province from legally bringing home liquid souvenirs of their vacation. It also prevents Canadian boutique wineries, who may not have wines on liquor store shelves, from shipping wines to customers in other provinces. (This is why variations on “Sorry, B.C. residents only” appear on many wineries’ online ordering pages.)

Wine Importation Law Restricts Consumers

Hicken, who has run the website winelaw.ca for the past 3 years, says he receives one inquiry about every 2 days on this matter. Frequently, he says, these queries come from people who have tried to send bottles of wine as a gift, only to have their package refused by Canada Post or FedEx.

“It’s a huge issue from a consumer angle,” he says.

The people who make the wine are concerned about the consumers as well.

“We have good relationships with the liquor boards across the country and many of them are trying to increase their sales of VQA wines, but they only have so much shelf space and we’ve got a growing wine industry,” says Dan Paszkowski, president of the Canadian Vintners Association (CVA). “It’s extremely difficult when you’re running a retail store and consumers come either physically to your stop — tourists from out of province — or you get a phone call from a consumer who liked your product and would like to buy more wine and we’re in the unenviable position of having to say ‘Sorry, we can’t ship you any.’"

The CVA has been working with liquor boards to come to a solution, Paszkowski says, but still needs to find a way to meet consumer demands and take advantage of modern commerce, possibly through a personal exemption under the IILA. He says he believes wine sales through provincial liquor boards would still far exceed direct-to-consumer sales.

“There wasn’t a Canadian wine industry or electronic commerce back in 1928, and the rest of the world is using all those forms of media, like Twitter and Facebook, YouTube, wine clubs to be able to sell their wine and they’re doing it very successfully. We’d like to do the same thing for our consumers.”

Sandra Oldfield, co-owner and winemaker at Tinhorn Creek Vineyards, says she doesn’t see Mulligan’s actions as a challenge to the liquor boards, but to the law itself.

“If we didn’t see validity in being in the liquor boards, we wouldn’t be in them,” she says. Tinhorn Creek has wines listed in B.C., Alberta, Manitoba and Ontario, she says. Still, she says, she would prefer it if the liquor boards had no such law to adhere to.

“I’m in full agreement with not tweaking the law. I’d like to see it gone. I think the easiest way to do that is to challenge it in the courts rather than legislatively. So I think that’s a good route to go.”

Campaign to Change the Intoxicating Liquors Act

A legislative change might happen first, however, courtesy of a private member’s motion from Ron Cannan, Member of Parliament for Kelowna-Lake Country in B.C.

In November, Cannan tabled Motion 601, designed to amend the IILA to allow consumers to purchase wine directly from Canadian wineries. If this motion passed, it would allow Ottawa to approach the provinces with the backing of Parliament to negotiate conditions for this to take place, Cannan says, adding that there is “much more chance of success,” through this route than by unilaterally imposing new legislation on the provinces.

Motion 601 died when the election was called, but Cannan says he plans to table the motion again. It usually takes about 2 years to get a private member’s bill through Parliament, he says, but he is “hopeful” that it will take less time.

“It’s certainly mixed messages. We need to support our Canadian producers and that’s what we’re trying to do,” Cannan says.

In Mulligan’s opinion, it will be Cannan’s efforts that ultimately bring about the end of the IILA.

“There’s just too many voices. It needs a single voice, a single person to lead the charge and I think Ron Cannan…I think he’s the guy. He’s driven to do this,” Mulligan says.

In the meantime, a spokesperson for the Alberta Gaming and Liquor Commission (AGLC), the body governing liquor imports in the province that Mulligan will be crossing into, says the organization is more concerned with wineries that break the rules than with individuals. In 2009, the AGLC sent out letters to wineries and couriers who shipped wine to Alberta customers, notifying them that they were in violation of the IILA.

“We’re not focusing on Albertans who travel to B.C. and bring home wine as a souvenir of their trip. Our concern is with larger purchases over the Internet. And what we’re saying to B.C. wineries is that if you want to do business in Alberta and sell wine to Albertans, do it legally,” says Lynn Hutchings-Mah, adding that more than 80 B.C. wineries have products listed in the Alberta market, which can be found on alberta-liquor-guide.com.

Internet purchases have an impact on small businesses, such as agents and retail liquor stores in Alberta, and also on government revenues, Hutchings-Mah says.

As the IILA is federal legislation, Hutchings-Mah says that it is up to the RCMP to decide how to approach Mulligan’s case.

The RCMP is aware of Mulligan’s plans, but has no plans to have an officer present at the border when he crosses, says Sgt. Patrick Webb, a Calgary-based spokesperson with the force.

But Mulligan, himself a former Mountie, says he was never out to get arrested — he just wanted to make a statement.

“All of us are willing to pay for our wines, we just don’t want to have to break the law in order to take it home with us,” he says.

claireb@wineaccess.ca

Photo: Stephen Dyrgas