This is kinda fascinating:
What started out as a simple privacy commissioner complaint has turned into a constitutional challenge of the validity of the Liquor Control Board of Ontario (LCBO) — and this time the Board has only itself to blame for the brouhaha, proving once again that Ontario’s LCBO is so far out of touch with the realities of today’s world, it’s downright scary. At a time when they should be thinking about transitioning out of the alcohol business, the Ontario provincial government and the LCBO seem to be clinging to its very existence with even more tenacity and verve than before. They’re like the old boxer clinging to past glories who just has to show you the right hook he can still throw — yet only ends up throwing out his shoulder. In the LCBO’s case, the word “Control” won’t be pried away from its “cold dead hands” anytime soon… or will it? In its most recent fight, the LCBO is proving it is a government entity most in need of being on the chopping block — if not the auction block — of government institutions that should be moved over to the private sector.
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Why the LCBO has chosen to play hardball over such a trivial matter is incomprehensible; according to reports, the LCBO has decided to appeal the order and has asked that the records be sealed in the process. This seems to contravene common sense. “A government entity has chosen to spend hundreds of thousands of taxpayers’ dollars to fight an order by the Privacy Commissioner whose sole purpose is to make these decisions,” Porter says.
Now fed up with the collection of information, Porter and his team have decided to question the entire existence of the LCBO as it contravenes the Constitution Act of 1867 by challenging the Importation of Intoxicating Liquors Act (IILA) itself — which bans the free flow of goods (including alcohol, wine and beer) between the provinces. The argument hinges on Section 121: “All articles of Growth, Produce or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.” This challenge could, and would if successful, lead to the downfall of the LCBO. Social networks were abuzz with the news about the challenge. Alfred Wirth, president and director at HNW Management Inc., applauded the news on Facebook: “Any progress towards competition among merchandisers is to be appreciated – even if it’s for domestically-produced products. Several years ago, when I questioned why Ontario couldn’t privatize the LCBO, the then Minister of Health said that alcoholic beverages were a crucial health matter which the province had to control. Despite the risk of people (including underage youth) freezing to death during our cold Ontario winters, he did not explain why the sale of crucial winter coats could be entrusted to Sears, the Bay, etc…” While Porter himself posted an analogy to cigarettes: “How about this one. Cigarettes are so dangerous that you cannot advertise them on TV, print, billboards or even display them behind a counter… but they can be sold at any store. Alcohol is so dangerous that it has to be sold at a government store with specially-trained people… but the government itself floods the market with advertising and even publishes a free magazine where 50 per cent of the content is about consuming the product.”
Energy lawyer Ian Blue has joined the Vin de Garde team for the action. I interviewed Blue in 2010 about the IILA, which is now under fire. Here’s what Blue had to say: “The law that gives provincial liquor commissions a monopoly and the power they have, is federal law, the Importation of Intoxicating Liquors Act; it’s highly arguable that the law is unconstitutional. It’s also pretty apparent to government constitutional lawyers, who are knowledgeable in these matters… [If the Supreme Court of Canada] takes a hard look at the IILA, and if they do an intellectually honest interpretation, the IILA probably cannot stand up to constitutional scrutiny.”
In 2009, lawyer Schwisberg commented to me when speaking about the IILA: “The very underpinning of Canada’s liquor regulatory system is unconstitutional. Isn’t that a mind blower?” Blue said: “There is nothing natural or logical about the existing system. It bullies, fleeces and frustrates wine producers and the public… If the IILA were to fall… wine producers could probably make quantum leaps of progress towards a fairer and more rational system of liquor and wine distribution in Canada.”
