- Wednesday, 05 November 2008 17:00
- Last Updated on Friday, 29 August 2014 12:30
This article provides a summary of the shipping laws regarding wine (and other liquor) within Canada. This article is updated frequently. However, the laws in this area are changing rapidly so please contact me (or your own lawyer) in order to ensure that you have the latest information. If you are interested in wine shipping issues related to bringing wine from a foreign country to Canada, please see this article: Bringing Wine to Canada After a Trip.
The shipping of any alcohol from one province into another province was previously prohibited by a federal law (which stems from the prohibition era) called the Importation of Intoxicating Liquors Act (Canada). However, on June 28, 2012 that law was amended by Bill C-311. While the general prohibition remains in place, the Bill created a national personal use exemption for wine subject to applicable provincial laws. In June 2014, the federal government also amended the law to extend the personal use exemption to include the interprovincial shipment of beer and spirits. That amendment was effective June 19, 2014. However, the various provinces have not embraced the spirit of these changes and have created various barriers to interprovincial "direct to consumer" shipments.
The following chart summarizes my views on the ability of consumers to receive "direct to consumer" interprovincial shipments of wine under the laws in the various provinces. See the FreeMyGrapes site for more detailed analysis and other interpretations of the law.
|DTC from Winery?||DTC from Retailer?||Quantity Limits||...||Comments|
|Yes||No||Amount for personal consumption if 100% Cdn wine from winery. ||OK for Canadian wine. Imported wine has different rules: subject to 9 liter cumulative quantity limit and only for "in-person" importation (no shipment).|
|Yes?||Yes?||Amount for personal consumption.||AGLC says that amounts for personal consumption may only be imported if they are "personally transported" into Alberta (i.e. not shipped). However, Alberta law says that adults may "import" liquor from other provinces (and other countries) in amounts determined by regulation. It is my view that the only reasonable interpretation of the word "import" as used in these laws (see s.86 of the Gaming & Liquor Act and s.89 of the Gaming & Liquor Regulation) includes both in person transport and direct shipment. However, Alberta has recently amended the regulation (s.89), to make importation from other provinces "subject to the policies of the Board" which appear to be set out here and which restrict importation to amounts that are personally transported. It is now likely a complicated legal issue as to whether the Board can, in fact, effectively reverse the language in the Act and Regulation through a "policy statement". |
|No||No||9 liters.||Use of words "personally bring" may exclude shipment. NOTE: Saskatchewan has announced that by the end of 2014 it will open its borders for DTC wine shipments and in 2015, it will also allow DTC liquor shipments.|
|Yes||Yes||Amount for personal consumption.||Kudos to Manitoba!|
|Yes||Yes||Amount for personal consumption.||Ontario's laws are silent on the issue of interprovincial importation of alcohol. Generally, in law, "that which is not prohibited is permitted" so it should be ok to import wine for personal consumption as allowed by the federal law. However, the LCBO has issued a "policy statement" that disagrees with this and says that only "in person transport" is allowed. It is my view that this "policy statement" has no basis in law in Ontario. See FreeMyGrapes analysis for details. NOTE: Premier Wynne has publicly stated that a deal to permit BC-ON DTC shipments is "close".|
|No||No||9 liters||Provincial law restricts transport of wine not purchased from liquor board within Quebec. Regulations have been issued which allow the importation of alcohol from other provinces but they only permit 9 liters of wine per person and only if it has been personally transported (no direct to consumer shipment).|
|Yes||Yes||9 liters.||It is my view that the only reasonable interpretation of the word "import" in the amended legislation includes both in person transport and direct shipment. The PEI liquor board is stating that it is not open for shipment, only for "in-person transport". In my view, this is not a reasonable interpretation of PEI law.|
|No||No||One bottle of unspecified size.||Permits shipment from another liquor board but unreasonably low quantity limit makes it unworkable.|
|Yes?||No?||Current laws restrict transport of wine within NS. Govt introduced legislative changes and originally stated that it would copy BC's approach on 100% Cdn wine only. However, the necessary regulations have not been introduced.|
|No||No||1.14 liters.||Unreasonably low quantity limit. Use of word "bringing" may exclude shipment.|
1. Current Law on Shipping
The original prohibition was contained in section 3(1) which states:
Notwithstanding any other Act or law, no person shall import, send, take or transport, or cause to be imported, sent, taken or transported, into any province from or out of any place within or outside Canada any intoxicating liquor, except such as has been purchased by or on behalf of, and that is consigned to Her Majesty or the executive government of, the province into which it is being imported, sent, taken or transported, or any board, commission, officer or other governmental agency that, by the law of the province, is vested with the right of selling intoxicating liquor.
This section effectively makes it illegal to import alcohol from one province to another or into a province from another country unless the alcohol is going to, or is otherwise authorized by, the governmental agency responsible for selling liquor within that province (e.g. the provincial liquor control board - in BC, that's the BC LDB). In other words, the federal law basically bans all importation or transport of liquor/wine across provincial borders or national borders unless the importation is authorized by the receiving province's liquor board.
However, Bill C-311 added an exemption in section 3(2)(h) which exempts the following types of importations from the blanket prohibition:
(h) the importation of wine from a province by an individual, if the individual brings the wine or causes it to be brought into another province, in quantities and as permitted by the laws of the latter province, for his or her personal consumption, and not for resale or other commercial use.
[update: this exemption was further amended to include beer and spirits effective June 19, 2014]
As a result, it is no longer illegal to import wine, beer or spirits from one province to another province so long as the amount at issue are for personal consumption and so long as the destination province's laws allow for the shipment. So effectively, the federal government has "passed the buck" on this issue to the provinces. Fortunately, some provinces either had existing laws which permitted the interprovincial importation of wine or have adopted such laws. However, some provinces (like B.C.) are now trying to make distinctions between the interprovincial importation of Canadian wine shipped from wineries and the importation of other wines (e.g. U.S. wine purchased from a retailer in another province). Such distinctions create confusion for both consumers and wineries. On a practical level of course, there are no routine inspections at provincial borders so any "offside" transactions are rarely detected.
Differences of opinion now exist as to the effect of the various provincial and federal laws in question. The table above represents my view. However, there is a more detailed analysis and summary of the various positions on the FreeMyGrapes web site: http://www.freemygrapes.ca/provinces.shtml
Obviously, the end result of any remaining provincial restrictions is rather foolish in that wineries within Canada may not be able to legally ship their products to Canadians in a particular province depending upon that province's laws.
2. Issues with Enforcement
Even with the changes discussed above, there are still many legal problems with Canada's current system including the 1928 federal law.
Jurisdiction. Issues of enforcement arise because liquor boards in one province do not have jurisdiction over wineries located in another province. How could a liquor board take action against a winery in one province that shipped in violation of the laws in a different province? Does the liquor board of one province intend to pressure the regulator in another to take enforcement action against the wineries that they license or ask the RCMP to do so?
Constitutionality of IILA. The federal law (IILA) that causes these problems is over 80 years old and was passed at the end of prohibition for reasons which are unrelated to the current liquor distribution system. One prominent Toronto lawyer has recently written an article arguing that IILA is unconstitutional. I agree with that conclusion as do many other lawyers who are knowledgeable in this area. The main argument that has been advanced to date is that IILA and the provincial markup policies are in violation of s.121 of the Constitution Act which guarantees a free trade zone within Canada for Canadian produced products such as wine. However, there are also possible arguments under the Charter of Rights ... under IILA, a person could potentially be imprisoned for a violation as simple as carrying one bottle of wine for personal consumption across a provincial border ... I personally find it hard to believe that this does not violate my rights to liberty and security of my person. There are also other grounds of challenge which could be made to restrictive liquor board policies including under administrative law, constitutional law, and trade agreements such as NAFTA.
What is also really interesting is that the foundation for the provincial liquor monopolies is based on this archaic law. If any liquor board actually took enforcement action, there would no doubt be an immediate constitutional challenge to the law (as well as exceptionally bad press and media coverage for the monopolies). If the law was struck down, the liquor boards would lose their monopolies. That's a big gamble for a monopoly to take.
History of Liquor Monopolies. The liquor monopolies might well consider the fate of the Washington state liquor monopoly after it took similar enforcement action decades ago. Back then, Washington state had a liquor distribution system similar to BC's current one. A prominent Seattle physician hated the fact that the importation of wine (even U.S. wine) into Washington state was restricted and subject to mark up by the liquor board. As such, he bought a lot of wine from out of state and imported it (technically illegal). The Washington liquor board raided his house, seized the wine and charged him. The subsequent public outcry was so great that the Washington state government decided to reform the entire system, effectively eliminating the import restrictions and privatizing wine and beer sales.
Please contact me for more info, questions, comments or a formal legal opinion. I have advised a number of BC wineries on these issues so I can likely provide answers to your questions quickly.