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Label the occupation: Winnipeg-based activist takes wine labelling case to court

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The author underground at Psagot Winery, tasting their fine chardonnay. Image: David Kattenburg

A rose by any other name would smell as sweet. A bottle of supposedly "Israeli" wine actually fermented from grapes grown on stolen Palestinian land stinks to high heaven.

This was how my mental nose reacted, back in early January 2017, when I discovered that the Liquor Control Board of Ontario (LCBO) was selling a red cab sauvignon and a chardonnay -- both labelled "Product of Israel" -- that had actually been produced in illegal Jewish settlements smack dab in the middle of northern occupied Palestine.

I lodged a complaint. Two and a half years later, this coming May 21 and 22, in Federal Court in Toronto, Kattenburg v. The Attorney General of Canada will be heard by Madam Justice Anne Mactavish. The two-day hearing promises to be historic.

My case takes the form of an application for judicial review, arising from a ruling -- that I dispute -- by the Complaints and Appeals Office of the Canadian Food Inspection Agency (CFIA). The CFIA had spent six months examining my January 2017 complaint to the LCBO, from every conceivable angle (as I would later learn). In early July 2017, they informed the LCBO that, under Canada's Food and Drugs Act and Consumer Packaging and Labelling Act, "Product of Israel" labels on wine products produced from grapes grown in the Israeli-occupied West Bank are false and misleading, and so alternative labeling would be required.

It didn't take long for the story to blow up. Within hours, Israel's embassy in Ottawa was on the horn to the president of the LCBO. Senior officials at Global Affairs Canada (GAC) also got a piece of Israel's mind. "The Embassy of Israel reached out to Global Affairs at senior levels today," a GAC official informed the CFIA in an email released to me. "The Embassy has expressed [deleted] and noted that the Government of Israel [deleted] to this matter."

Curiously, the CFIA never informed me that they'd validated my complaint. Instead, I found this out at the Facebook page of Israel's self-described "staunch defender," B'nai Brith Canada. "B'nai Brith has received a lot of information on this matter from multiple sources and officials during the past 24 hours," the post declared. "We can say now that we are expecting this disturbing decision to be corrected in short order."

Sure enough, the next day, just 24 hours after ruling that "Product of Israel" wine labels breached Canadian consumer protection law, the CFIA announced "regrets" for having failed to "fully consider" the Canada-Israel Free Trade Agreement (CIFTA), Article 1.4.1(b) of which defines "Israel" as wherever Israeli customs laws are applied--and they're applied in the "West Bank" (so the Canadian government claims). Swelled with pride, B'nai Brith swiftly commended the Canadian government for "pressuring" the CFIA to reverse itself.

With the pro bono assistance of Montreal-based activist-attorney Dimitri Lascaris, I filed an appeal. The CFIA's complaints and appeals office responded in late September 2017, upholding the CFIA's flip-flop, thus triggering my application to the Federal Court of Canada.

In my application, I ask the court a) To declare unlawful the CFIA's July 13, 2017 decision allowing "Product of Israel" settlement wines to be imported into and sold in Canada; b) To declare that the Canada-Israel Free Trade Agreement (CIFTA) does not authorize settlement wines to be labeled "Product of Israel" on Canadian store shelves (as the CFIA claims), and c) To declare the CFIA's wine labelling decision in breach of Canada's Geneva Conventions Act (1985), along with its obligations as a high contracting party to the Fourth Geneva Convention (1949) and UN Charter. 

In support of my Application, Dimitri will raise a variety of points in court this week. Key among these: that CIFTA's purpose was to eliminate tariffs, not to regulate product labelling on Canadian store shelves.

Dimitri will also argue that the CFIA reversed itself, not in response to "new information" about CIFTA, but to political pressure from the highest of on high. Documents we've received through access to Information disclose flurried communications between staffers in the Privy Council and Prime Minister's Office the day before the CFIA reversed itself. Among the Privy Council staffers was Justin Trudeau's foreign and defense policy advisor, indicating that he'd discussed the issue with the CFIA's president, and suggesting that Trudeau himself was in the loop.

Adding to the court drama, this week's hearing will also feature interventions by a pair of prominent Canadian interest groups, both claiming to uphold human rights, in diametrically opposing ways.

On behalf of Independent Jewish Voices Canada, Order of Canada member Barbara Jackman will argue that my truthful wine labelling Application "'engages" freedom of expression provisions in Section 2 of Canada's Charter of Rights. "The right of consumers to know product location is a fundamental aspect" of freedom of expression, "particularly in light of product boycotts based on location," Jackman writes in her court submission.

If Madam Justice Mactavish accepts Jackman's argument that Canadians do indeed have a charter right to make consumer choices based on their political beliefs, it will undermine the government's argument that concealment of the origin of a product produced in breach of international law was not among the "false, misleading or deceptive" acts of "mischief" Parliament had in mind when drafting the Food and Drugs and Consumer Packaging and Labelling Acts.

Flipping Jackman's argument, on behalf of B'nai Brith, Order of Canada member David Matas would dearly love to argue that "West Bank settlement" labels would expose wine products to boycotts, which he alleges are anti-Semitic.

It's not an argument Matas should be allowed to make. The court has granted B'nai Brith the right to intervene -- overturning an earlier dismissal -- on the understanding that it will address one single matter: the legality of Jewish settlements. Matas has now done so -- in a rambling tract straight out of the novel Hunter S. Thompson never wrote, packed with factual errors, odd rhetorical questions, glaring errors in syntax and no caselaw citations.

Matas' go-to argument for the legality of Jewish settlements actually has a name. Cooked up in the wake of the 1967 Six-Day War by Israeli academic Yehuda Blum and Attorney General/Supreme Court Justice Meir Shamgar, the "Missing Reversioner" argument posits that the "West Bank" isn't actually "occupied" as defined in the Fourth Geneva Convention (FGC), because it wasn't the sovereign territory of another state. Nor were settlements illegal, Blum-Shamgar argued, basing themselves on a widely refuted reading of FGC Article 49.

David Matas's "Flat Earth" theories will certainly add flavour to this week's court case. It could turn out to be the first time a Canadian court has ruled on the legality of Israel's West Bank settlements. What better arguments to be hearing than David Matas', side by side with Canada's clearly enunciated position -- argued by Dimitri Lascaris -- that settlements are flagrantly illegal?

Those who wish to be on hand for this historic court hearing, on May 21 and 22, should make their way to the Federal Court of Canada, 180 Queen Street West, by 9 a.m. Proceedings start at 9:30 a.m. Full decorum will be expected and required.

Afterwards, at 7 p.m. on Wednesday, May 22, at Bloor Street United Church, Dimitri Lascaris and I will talk about our case and answer questions. Everyone is welcome.

Bottom line: The wheels of justice turn slowly, and cash must be spent making them turn. Dimitri has worked countless hours, digging through case law, filing affidavits and memorandums of fact and law. All pro bono. If Justice Mactavish dismisses my application, there may be costs to pay, and there will certainly be an appeal to launch. If we win, enforcement will be our next step. Thanks for helping out here.

David Kattenburg is a Winnipeg-based educator, journalist, activist and child of Holocaust survivors. He has traveled to Israel and Palestine on a host of occasions, reporting for his Green Planet Monitor web magazine (www.greenplanetmonitor.net).

Image: David Kattenburg

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