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Shipping Law (IILA) is Unconstitutional?

A new legal analysis by a prominent Toronto lawyer, Ian Blue Q.C. (of Cassels Brock Blackwell LLP) has concluded that the Importation of Intoxicating Liquors Act (IILA) is likely unconstitutional. The IILA is the federal law that was passed immediately after prohibition and which effectively gives each of the provincial liquor boards their monopoly over the distribution of wine (and other alcohol) and which also prevents both consumers and wineries from shipping or bringing wine across provincial borders (see this article for the history of BC liquor laws).

Mr. Blue's article, On the Rocks? Section 121 of the Constitution Act, 1867, and the Constitutionality of the Importation of Intoxicating Liquors Act, has just been published in the April 2009 issue of the Advocates Quarterly at p. 306. The article traces the history of the IILA and provides a thorough analysis of the limited case law that has considered it over the years. Mr. Blue concludes that the previous case law (most of it very old) is not in line with a contemporary interpretation of constitutional provisions and probably would not be followed: "[w]hen the IILA is tested against a purposive [contemporary] interpretation of s.121, it obviously violates it, leading to the conclusion that the IILA is probably unconstitutional".

This article provides ample food for thought. If the IILA was found to be unconstitutional (which could only happen if the matter was brought before a court), the provincial liquor boards would lose their ability to prevent inter-provincial trade in wine (and other alcohol). In other words, they would be forced to compete against one another. In B.C., that result would probably be good for consumers since we have some of the highest wine and liquor markups in the country. In addition, it seems likely that such a determination would be a catalyst for a general change in liquor regulation across the country.

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