While there are scant details in the media report, it appears that FedEx has been charged in Newfoundland for shipping wine from BC to that province. See the story: \”Courier Charged with Bringing Contraband Liquor to NL\”. If the case proceeds, there are a number of obvious defences including a possible constitutional challenge based on the fact that s.121 of the Constitution Act guarantees a free trade zone within Canada for Canadian products.
The Alberta government has moved to reverse the recent progress on direct to consumer wine shipping laws in Canada by quietly amending s.89 of its Gaming and Liquor Regulation so as to create a distinction between wine shipped into Alberta from another province and wine that is personally transported back to Alberta with a traveller after a trip. Prior to the amendments, Alberta law quite clearly stated that Alberta residents could have wine shipped from other provinces in amounts for personal consumption. The Gaming and Liquor Act and Regulation specifically allowed shipment through the combined effect of section 86(3) of the Act and section 89 of the Regulation, both of which read as follows:
Act s.86(3): An adult may import into Alberta liquor of a kind and up to a quantity that is permitted under the regulations.
Regulation s.89: For the purposes of section 86(3) of the [Gaming and Liquor Act], an adult may import from another province liquor for the adult\’s personal use and consumption.
The new version of section 89 of the regulation changes the wording from the earlier version and makes the importation \”subject to the policies of the Board\”. Here is the new section:
89. For the purposes of section 86(3) and (4) of the Act, an adult may import liquor purchased in a province or territory other than Alberta for personal use or consumption in Alberta subject to the policies of the Board respecting the importation of liquor.
The Alberta liquor board (AGLC) has now also issued an information sheet \”Personal Importation of Liquor from Other Provinces\”, which while not explicitly stating that they do not permit shipment, indicates that they only permit liquor to be brought from another province if the liquor \”accompanies the individual\”. It is not clear whether the above changes are legally effective because s.86 of the statute refers only to the \”kind\” and \”quantity\” of imported liquor being set by regulation. It does not empower the Board to make these decisions or to distinguish between types of imported liquor. In addition, there is likely a good argument that such an action would be unconstitutional in any event as it would both violate s.121 of the Constitution Act (which establishes a free trade zone for Canadian produced product as between the provinces) and infringe upon the federal government\’s exclusive jurisdiction over interprovincial trade. As a result, there are now some complicated legal issues as to whether the AGLC can effectively reverse the language in the Act and Regulation through the use of a policy statement. In addition, it is now theoretically easier for Alberta consumers to purchase wine and have it shipped to them from the United States than from British Columbia.
I have updated the Shipping Laws information page to reflect this unfortunate development. In my view, and regrettably, Alberta continues to act against the will of Albertans and other Canadians on this issue (see earlier article: \”Alberta\’s bizarre position on wine shipping law reform\”).
Tinhorn Creek Winery in BC\’s Okanagan Valley has come up with a solution that enables it to ship to 34 U.S. states in compliance with relevant state laws, using a California company, Ship at Home. See the story here: Tinhorn Creek finds way to ship to U.S. customers. Meanwhile, it is almost the second anniversary of Bill C-311, and it remains challenging for BC wineries to ship to Canadian customers because most provincial liquor boards have put up barriers to interprovincial shipping either through legislation or policy statements (see the latest analysis here: Shipping Law Update).
The BC Wine Authority has issued a press release indicating that wineries in the \”Golden Mile\” area of the South Okanagan have submitted the first application to create a sub-appellation (or sub-designated viticultural area) for the Golden Mile Bench area (see story including the release here). The Wine Authority will now proceed with its required process for the application which is set out in the governing legislation. There is currently no time line for approval.