Dr. David Kattenburg Files Appeal from Canadian Food Inspection Agency Decision to Allow False and Deceptive Labels on Wines from Illegal Israeli Settlements

In January 2017, Dr. David Kattenburg, a resident of Winnipeg, Manitoba whose parents were Holocaust survivors, filed a complaint with the Liquor Control Board of Ontario (LCBO). Dr. Kattenburg’s complaint was that the LCBO was selling two wines produced in Israel’s illegal settlements in the West Bank, and that those wines were falsely labelled as “Product of Israel.” The wines about which he complained were Shiloh Legend KP 2012 and Psagot Winery M Series, Chardonnay KP 2014.

By March 2017, the LCBO had not resolved Dr. Kattenburg’s complaint. Dr. Kattenburg therefore filed a complaint directly with the Canadian Food Inspection Agency (CFIA), which is mandated by law to ensure that food and beverages sold in Canada are accurately labelled.

On July 12, 2017, Dr. Kattenburg learned from a post on the Facebook page of B’Nai Brith Canada that, on July 6, 2017, the CFIA had directed the LCBO to order its wine vendors to cease the sale and importation of these settlement wines due to the fact that their labels were false.

The CFIA immediately came under intense pressure from the Israeli government and its advocates in Canada, including B’Nai Brith, the Centre for Israel and Jewish Affairs, and Michael Levitt. Levitt, a Liberal MP for York Centre, is the Chair of the Canada-Israel Interparliamentary Group. These advocates for Israel, who describe their Israel advocacy as ‘relentless’, professed ‘shock’ and ‘dismay’ that a Canadian consumer protection agency would have the temerity to require wines produced in Israel’s illegal settlements to be labelled accurately.

As a result of their pressure, the CFIA reversed itself less than 24 hours after Dr. Kattenburg learned of the CFIA’s initial – and correct – decision to bar the sale and importation of these falsely labelled wines.  Citing an obscure provision of the Canada-Israel Free Trade Agreement (CIFTA), the CFIA claimed not to have given adequate consideration to CIFTA and, remarkably, apologized for its decision.

On August 6, 2017, in my capacity as Dr. Kattenburg’s legal counsel, I transmitted to the CFIA’s Complaints and Appeals office Dr. Kattenburg’s appeal from the CFIA’s decision to continue to allow these settlement wines to be falsely labelled.  Dr. Kattenburg has decided to make available to the public Annex 1 to his Appeal Intake Form. Annex 1 sets forth the factual and legal basis of Dr. Kattenburg’s appeal. It is reproduced below in its entirety.

If this appeal to the CFIA’s Complaints and Appeals Office does not result in a prohibition on the importation and sale in Canada of falsely labelled settlement wines, it is Dr. Kattenburg’s intention to file an application for judicial review of the CFIA’s decision in the Federal Court of Canada.

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APPEAL OF DR. DAVID KATTENBURG FROM THE DECISION OF CFIA STAFF TO ALLOW THE IMPORTATION AND SALE OF FALSELY LABELLED WINES PRODUCED IN ILLEGAL WEST BANK SETTLEMENTS

 ANNEX 1

FACTS

The Appellant

Dr. David Kattenburg (the “Appellant”) is a resident of Winnipeg, Manitoba. The Appellant is a science educator, a freelance journalist and human rights activist. The Appellant is also an oenophile and for many years has purchased wine regularly at outlets of Manitoba Liquor Mart and at outlets of other wine vendors in Canada.

Background of the Complaint

By letter dated January 6, 2017, the Appellant wrote to the Liquor Control Board of Ontario (“LCBO”) about two wine products sold by the LCBO that are produced in the West Bank. The West Bank is part of the Occupied Palestinian Territories (“OPT”). The two wines to which the Appellant’s January 6, 2017 letter related are:

• Shiloh Legend KP 2012; and
• Psagot Winery M Series, Chardonnay KP 2014.

The above-mentioned wines are hereinafter referred to as the “Settlement Wines”.

In his January 6, 2017 letter[1], the Appellant advised the LCBO that the labels on bottles of the Settlement Wines being sold by the LCBO stated that the wines were produced in Israel, but that, in fact, the wines were produced in Israel’s illegal settlements in the West Bank in the OPT. The Appellant also advised the LCBO that the wines were falsely represented on the LCBO’s website as having been made in Israel. Accordingly, the Appellant requested that the LCBO correct the misrepresentation as to the origin of the Settlement Wines on its website, and that it affix correct origin labels to all bottles of the Settlement Wines being sold by the LCBO.

The Appellant did not receive from the LCBO a formal acknowledgement of his January 6, 2017 letter until March 8, 2017. In its March 8, 2017 letter[2], the LCBO advised the Complainant that:

We are currently working in collaboration with the Canadian Food Inspection agency (CFIA) to investigate the matter you have brought forward. As we are still in the process of consulting with CFIA, we do not have a response to provide at this time.

We will contact you as soon as we have a final resolution to your inquiry.

By March 31, 2017, the LCBO still had not advised the Appellant of the resolution of his complaint concerning the Settlement Wines. Accordingly, on that date, the Appellant wrote directly to the CFIA about the Settlement Wines. In his March 31, 2017 letter[3], the Appellant advised the CFIA that the Settlement Wines were falsely labelled as having been produced in Israel, and he requested that the CFIA take immediate action to rectify the misrepresentation as to the country of origin of the Settlement Wines.

On April 13, 2017, the Appellant received from the CFIA an acknowledgment of his March 31, 2017 letter. The acknowledgement was emailed to the Appellant by Richard Harlos, a CFIA inspector. In his email[4], Mr. Harlos stated that the Appellant could consider Mr. Harlos to be the contact for this matter but he also advised the Appellant that he was “not the primary inspector on this file” and that “when a decision has been made, I will keep you informed.” To this day, the Appellant has not been given the identity of the primary CFIA inspector on this file nor has he been informed by the CFIA of the outcome of his complaint.

On April 14, 2017, in further support of his argument that the Canadian government does not recognize Israeli sovereignty over the West Bank, the Appellant sent an email to Mr. Harlos to advise him of the Canadian government’s long-standing policy that Canada’s embassy in Israel should be situated in Tel Aviv and not in Jerusalem, due to the status of Jerusalem under international law. By email sent on April 18, 2017[5], Mr. Harlos acknowledged the Appellant’s April 14, 2017 email and stated that he would update the file with this additional information.

On April 18, 2017, Mr. Harlos sent a further email[6] to the Appellant in which he advised that the “issue has already been forwarded to our Center of Excellence specialists.” Mr. Harlos added:

Having been in the labelling program for some time, it would appear to be a complicated issue, one that relies on accurate information being gathered before a decision can be rendered. Patience is required, it will take some time.

On May 16, 2017, Dr. Kattenburg sent an email to Mr. Harlos in which Dr. Kattenburg requested an update. On May 17, Mr. Harlos sent an email[7] to Dr. Kattenburg in which he advised Dr. Kattenburg that the file was still being reviewed.

Between his receipt of Mr. Harlos’s email of May 16, 2017 and July 12, 2017, the Appellant received no further communications from the CFIA regarding his complaint about the Settlement Wines.

Then, on July 12, 2017, the Appellant learned from a post on the Facebook page of B’Nai Brith Canada (“B’Nai Brith”) that the LCBO had sent a letter on July 11, 2017 to its vendors advising that, on July 6, 2017, the LCBO had received a “notification” from the CFIA advising the LCBO that “Product of Israel” would not be “an acceptable country of origin declaration” for the Settlement Wines. (The decision of CFIA staff (“Staff”) which underlies the notification transmitted to the LCBO by Staff on July 6, 2017 is referred to hereinafter as the “Initial CFIA Decision.”)

The Facebook post in question (“B’Nai Brith’s First July 12 FB Post”) appeared on B’Nai Brith’s Facebook page at 11:42 a.m. on July 12, 2017. According to B’Nai Brith’s First July 12 FB Post[8], the LCBO had directed its vendors to discontinue the sale or importation of the Settlement Wines and any other wines from the OPT or the Golan Heights that were labelled as “Product of Israel”. B’Nai Brith’s First July 12 FB post included what appeared to be a complete copy of the LCBO’s July 11, 2017 letter and stated that B’Nai Brith was “shocked” by the Initial CFIA Decision. It further stated that B’Nai Brith would provide updates on that decision.

B’Nai Brith is an advocacy group that describes itself on its website as, among other things, a “staunch defender of the State of Israel.”[9] B’Nai Brith has sought repeatedly to suppress criticism of Israel by falsely characterizing such criticism as discriminatory or anti-Semitic.[10]

On the afternoon of July 12, 2017, promptly after learning of B’Nai Brith’s First July 12 FB Post, the Appellant telephoned Mr. Harlos to acquire more information about the Initial CFIA Decision. Prior to seeing B’Nai Brith’s First July 12 FB Post, the Appellant was unaware of the Initial CFIA Decision. In his July 12, 2017 conversation with Mr. Harlos, Mr. Harlos told the Appellant that, within a week to ten days, he would provide to the Appellant the Initial CFIA Decision in copy/paste format.

On July 12, 2017, promptly following his telephone conversation with Mr. Harlos, the Appellant sent an email[11] to Mr. Harlos in which he asked Mr. Harlos to provide to him any guidance provided by the CFIA to the LCBO regarding adequate labelling of the Settlement Wines, and on the “action plan” referred to in the LCBO’s July 11, 2017 letter to its wine vendors.

At 7:53 p.m. on July 12, 2017, a second post regarding the CFIA decision appeared on B’Nai Brith’s Facebook page (“B’Nai Birth’s Second July 12 FB Post”). In that post[12], B’Nai Brith stated that “while advocating on behalf of the grassroots Jewish community, B’Nai Brith discovered that the decision targeting Israeli wines in LCBO stores will soon be reversed.”

On the evening of July 12, 2017, promptly after learning of B’Nai Brith’s Second July 12 FB Post, the Appellant sent an email to Mr. Harlos urging the CFIA to stand by the Initial CFIA Decision. In that email[13], the Appellant also reiterated his request for a copy of the Initial CFIA Decision and requested that he be kept informed of the CFIA’s position.

On July 13, 2017, the Appellant retained an Ontario-based lawyer, Dimitri Lascaris, to represent him in this matter. On that same day, on behalf of the Appellant, Mr. Lascaris emailed a letter to Mr. Harlos and to Vincent Caron, the author of the LCBO’s July 11, 2017 letter to its vendors.

In his letter[14], Mr. Lascaris urged the CFIA not to reverse the Initial CFIA Decision and advised that, if the CFIA reversed that decision, the Appellant would commence legal proceedings against the CFIA and the LCBO under applicable legislation.

In his July 13 letter, Mr. Lascaris also requested that the CFIA and LCBO disclose to him how B’Nai Brith had learned of the Initial CFIA Decision before the Appellant learned of it. Finally, Mr. Lascaris reiterated the Appellant’s expectation that, in future, he be promptly advised by the CFIA and LCBO of any developments in this matter.

To this date, Mr. Lascaris has received no response to the letter that he emailed to Messrs. Harlos and Caron on July 13, 2017.

On July 13, 2017, after Mr. Lascaris emailed his letter to Messrs. Harlos and Caron, the Appellant learned that the CFIA had posted a statement[15] on its website announcing the reversal of the Initial CFIA Decision. That statement was as follows:

The Canadian Food Inspection Agency (CFIA) regrets the outcome of the wine labelling assessment which led to the Liquor Control Board of Ontario’s (LCBO) response regarding products from two wineries labelled as “Product of Israel”.

In our assessment, we did not fully consider the Canada-Israel Free Trade Agreement (CIFTA).

Further clarification of the CIFTA (Article 1.4.1b) indicates that these wines adhere to the Agreement and therefore we can confirm that the products in question can be sold as currently labelled.

The CFIA will be following up with the LCBO to correct our original response.

(The decision of Staff to reverse the Initial CFIA Decision is referred to hereinafter as the “Reversal Decision”. The Initial CFIA Decision and the Reversal Decision are together referred to hereinafter as the “CFIA Decisions.”)

The Appellant learned of the Reversal Decision from press reports and not from any direct communication to him from the CFIA or the LCBO.

On July 13, 2017 at 5:40 pm, B’Nai Birth posted on its Facebook page a statement[16] in which its CEO, Michael Mostyn, thanked the Government of Canada for “responding so quickly to the legitimate concerns of the Jewish community and all Canadians.” In that Facebook post, Mr. Mostyn also stated that “B’Nai Brith will always relentlessly advocate for our community” and that B’Nai Brith “will continue to make inquiries about the origin of this travesty, to ensure that nothing like [sic] ever happens again.”

On July 13, 2017, B’Nai Brith also published an article[17] on its website regarding the reversal of the CFIA’s decision. That article was entitled “B’Nai Brith Canada Commends Government for Pressuring Agency to Comply with Canadian Wine Regulations,” and it stated in part that:

“We thank the Government of Canada for responding so quickly to the legitimate concerns of the Jewish community and all concerned Canadians,” said Michael Mostyn, Chief Executive Officer of B’nai Brith Canada. “We will continue to make inquiries about the origin of this travesty to ensure that nothing like [sic] ever happens again. B’nai Brith will always relentlessly advocate for our community.”

Mostyn said York Centre MP Michael Levitt should be specifically lauded for his quick work and leadership behind the scenes to help resolve this issue. In a statement, Levitt said: “I was shocked and deeply concerned (about). . .the discontinuation of the sale of products from two Israeli wineries as a result of a notice issued by the CFIA. This action was completely at odds with both the Government’s long-standing close relationship with the State of Israel and our focus on broadening the Canada-Israel trade relationship, such as the upcoming ratification of an expanded Canada-Israel Free Trade Agreement.”

Levitt added that he will be travelling to Israel later this month and looks forward “to connecting with both wineries to demonstrate my support.”

On July 13, 2017, the Center for Israel and Jewish Affairs (“CIJA”) issued two statements regarding the CFIA’s Decisions.

The first of these statements revealed that, “over the past few days, CIJA’s team in Ottawa has constructively engaged senior officials in the Government of Canada to resolve this issue. We applaud them for responding so quickly to make this right.”

The second of CIJA’s July 13 statements[18] was entitled “CIJA Commends Government for Prompt Revocation of CFIA Labelling Directive.” That statement revealed that CIJA “learned about the directive on July 11^th and immediately contacted key staff in the offices of the Minister of International Trade and Global Affairs Canada. We learned that the directive, which is at odds with government policy, was mistakenly issued at the bureaucratic level with no direction from political staff or the Minister.”

On its website, CIJA describes itself as a “national, non-partisan, non-profit organization, representing the perspectives of 150,000 Canadian Jews affiliated through local Federations.”[19] Although it claims to be non-partisan, CIJA has a long and unambiguous record of support for the State of Israel and frequently attacks those who criticize Israeli government policy. CIJA sponsors trips to Israel by elected officials, and then lobbies those officials to support CIJA’s pro-Israel initiatives. One MP who has travelled to Israel at CIJA’s expense is Michael Levitt.[20]

On July 13, 2017, an article appeared in the Times of Israel in which Yaakov Berg, the CEO of Psagot Winery, was quoted as stating that he was “amazed” at the CFIA’s initial decision not to permit his wines to be labelled as “Product of Israel.” According to the Times of Israel article[21], Mr. Berg also stated:

We are living in Judea and Samaria by historic right. Canada, of all places, which was established and developed on basis of occupying and sacrificing the homeland of another people and which has no roots or historical validity to its existence there, doesn’t recognize the right of a Jew to live and cultivate vines on land inherited from his forefathers?

As noted by Wikipedia, “Judea and Samaria” is “the Israeli government term for the territory generally referred to as the West Bank, but excluding East Jerusalem.”[22] Thus, in his statement to the Times of Israel, Mr. Berg did not deny but in fact acknowledged, at least implicitly, that his Psagot Winery M Series, Chardonnay KP 2014 is produced in the West Bank.

The Psagot settlement was built on occupied and confiscated Palestinian land overlooking Ramallah. Ramallah is a Palestinian city in the West Bank and is the de facto administrative capital of the Palestinian National Authority. Psagot means “summit” in Hebrew, and the Psagot settlement, which dominates Ramallah, clearly has a strategic purpose. On March 4, 2002, Israeli tanks stationed at Psagot shelled two Palestinian civilian cars, killing a Palestinian mother, her three children and two other children.[23] In 2015, ahead of deliberations in Israel’s Knesset on legislation aimed at expropriating land from Palestinian owners, Regavim, a right-wing Israeli organization, submitted to Knesset members a report disclosing that 2,026 structures in the West Bank had been built on privately owned Palestinian land. The report identified 98 of those homes as having been built in the Psagot settlement.[24] That law, euphemistically referred to as the “Regularization Law”, was adopted by the Knesset in early 2017. It purports to legalize retroactively settlements that were illegal even under Israel’s own laws. One such settlement is Psagot.[25] Shortly after the “Regularization Law” was adopted, a leading Israeli human rights lawyer, Michael Sfard, stated that Israel’s “Knesset ordered the civil administration and army to commit a war crime.”[26] Leaders from Germany, Britain, France, the European Union, the United Nations and the Arab League condemned the “Regularization Law,” warning that it severely undermines prospects for a two-state solution.[27]

On July 13, 2017, an article regarding the Initial CFIA Decision also appeared in the National Post. According to that article[28], Itay Tavor, the head of public diplomacy at Israel’s embassy in Ottawa, stated that “Israel supports free trade and objects to its politicization. We are currently in touch with the Canadian authorities and are discussing this matter.” The National Post article also stated that Marty York, a spokesperson for B’Nai Brith, advised the National Post that a “high-ranking official” had informed B’Nai Brith that a “low-level person” at the CFIA had made a decision without seeking authority from the federal government, and that “this is going to be rescinded shortly and we also expect that this person who made this decision will be disciplined.”

On July 17, 2017, the Appellant sent an email to Paul Glover, the President of the CFIA, to communicate his strong objection to the Reversal Decision. In that email[29], the Appellant reiterated his request that the CFIA provide to him all documents relevant to this matter, including copies of the CFIA Decisions. The Appellant specifically requested detailed, written reasons for the Reversal Decision going beyond the terse and uninformative statement that the CFIA had posted on its website.

To this day, the Appellant has not received a response to his July 17, 2017 email to Mr. Glover.

Finally, on July 25, 2017, Mr. Lascaris emailed a letter on behalf of the Appellant to Paul Glover, Richard Harlos and Merril Bawden, Acting Chief Redress Officer of the CFIA. In that letter[30], Mr. Lascaris advised that the Appellant objected to the Reversal Decision and that he therefore planned to initiate proceedings to ensure that the Settlement Wines are not permitted to be sold to Canadian consumers unless and until they are no longer falsely labelled as “Product of Israel” or “Made in Israel.” Mr. Lascaris further advised that the Appellant had yet to receive a copy of either of the CFIA Decisions or any explanation for these decisions. Mr. Lascaris reiterated the Appellant’s request for complete copies of the CFIA Decisions and reasonably detailed, written reasons for both decisions. Finally, Mr. Lascaris reiterated the Appellant’s request for a full explanation as to how advocacy groups such as B’Nai Brith and CIJA learned of the Initial CFIA Decision before the CFIA informed the Appellant, the complainant who initiated this matter, of that decision.

Mr. Lascaris has received no response to his letter of July 25, 2017. 

LEGAL ARGUMENT

Overview

Broadly speaking, the Appellant complains about this matter in two fundamental respects.

First, he complains about the seriously flawed procedure whereby Staff have attempted to resolve his initial complaint about the falsely labeled Settlement Wines.

Second, the Appellant complains that the Reversal Decision is wrong as a matter of both Canadian domestic law and international law.

CFIA Staff Have Violated the Appellant’s Procedural Rights

In attempting to resolve the Appellant’s request that the sale and importation of the Settlement Wines be prohibited unless and until they are labelled accurately, Staff have committed serious procedural errors. Staff have violated both the CFIA’s own policies and rules of procedure, as well as common law rules of procedural fairness. Those violations include the following:

Staff Acted with a Lack of Independence

According to the CFIA’s Statement of Values:[31]

• The reputation and credibility of the Agency are vital to our ability to deliver our mandate. As such, we behave, internally and externally, in a way that trust is preserved.[…]
• We maintain our regulatory independence from all external stakeholders. We have the courage to make difficult and potentially unpopular decisions and recommendations, free from personal bias.

[Emphasis added.]

Staff have failed to uphold these values.

After careful consideration of the underlying facts and the law, including analysis by and input from the CFIA’s “Center of Excellence specialists”, Staff correctly decided to prohibit the sale and importation of the falsely labelled Settlement Wines.

Then, in announcing the reversal of the Initial CFIA Decision, Staff posted on the CFIA website a statement in which Staff claimed that “In our assessment, we did not fully consider the Canada-Israel Free Trade Agreement.”

According, however, to Mr. Harlos’s April 18, 2017 email to the Appellant:

Having been in the labelling program for some time, it would appear to be a complicated issue, one that relies on accurate information being gathered before a decision can be rendered. Patience is required, it will take some time.

Indeed, Staff were apprised of the Appellant’s complaint to the LCBO some time prior to March 8, 2017. Staff notified the LCBO of its initial decision to bar the sale and importation of the Settlement Wines on July 6, 2017, at least three months after it first learned of the Appellant’s complaint to the LCBO. Staff thus had ample opportunity to consider the effect of the Canada-Israel Free Trade Agreement (“CIFTA”) and, as acknowledged by Mr. Harlos, Staff relied on and gathered accurate information and input and analysis from the CFIA’s Center of Excellence specialists before rendering a decision to bar the sale and importation of these falsely labelled wines.

Immediately after the Initial CFIA Decision became known to the Israeli government and its advocates in Canada, they launched an intense campaign to pressure the CFIA into reversing its decision. Indeed, B’Nai Brith’s article of July 13, 2017 confirms that Staff were ‘pressured’ to change their mind. B’Nai Brith, CIJA, the Israel embassy and the CEO of the Psagot Winery (who is complicit in and profiting from a war crime) engaged in inflammatory attacks against the CFIA, employing such terms as “shocked”, “travesty”, “amazed” and “discriminatory”. It appears that CIJA and B’Nai Brith went so far as to demand that the CFIA staff member who rendered the Initial CFIA Decision – and who correctly applied the law in accordance with the duties of a CFIA inspector — be disciplined for doing his or her job in accordance with Canadian law.

Regrettably, the CIJA and B’Nai Brith campaign of intimidation was aided by a sitting member of Parliament, Michael Levitt, who is from the governing Liberal Party and is Chair of the Canada-Israel Inter-Parliamentary Friendship Group. In a statement posted on his website on July 13, 2017,[32] Mr. Levitt professed to be “shocked” and “deeply concerned” about the Initial CFIA Decision. In that statement, Mr. Levitt added:

Whether in times of crisis or celebration, I will always be a strong voice for the Jewish community in a government that is committed to the friendship and unwavering bond between Canada and Israel, and I will continuously work towards building and strengthening the bond between our two countries. As a testament to this, I will be traveling to Israel later this month and look forward to connecting with both wineries to demonstrate my support.

Mr. Levitt, however, does not speak for Canada’s Jewish community. That is amply demonstrated by this case. The Appellant is himself Jewish and is a child of Holocaust survivors. Like many other members of the Jewish community in Canada, the Appellant objects to the State of Israel’s disregard for international law. He also objects to Mr. Levitt’s efforts to impede the CFIA from fulfilling its mandate to protect and inform Canadian consumers.

Notably, a poll conducted in Canada in early 2017 by EKOS Research Associates found broad sympathy among Canadians for Canadian government sanctions on Israel for the purpose of pressuring Israel to comply with international law. The EKOS poll found, in particular, that there was sympathy for such sanctions among a substantial proportion of respondents who identified as Jewish.[33]

In effect, therefore, Mr. Levitt speaks for the State of Israel and for the relatively limited number of Canadians who support Israel regardless of the severity or duration of Israel’s violations of international law. By pressuring Staff to allow the sale of falsely labelled Settlement Wines in violation of Canadian law, Mr. Levitt acted contrary to the interests of Canadian consumers, and contrary to the values of Canadians of conscience.

The CFIA’s conduct in this matter is not just a matter of optics. It reveals a substantial lack of transparency, procedural fairness and democratic accountability. Government agencies such as the CFIA should make decisions in an open and public fashion that encourages citizen engagement. They should not act behind closed doors and under the pressure of well-funded lobby groups.

Ultimately, the record demonstrates that Staff took months to render a decision that was based on painstaking consideration of the facts and the law, and then reversed itself, with breathtaking speed, as soon as it came under intense pressure from Israel’s advocates in Canada. This has seriously undermined the public’s trust in CFIA’s competence and independence.

CFIA Staff Failed to Provide to the Appellant a Copy of the Decisions or The Reasons for the Decisions

Section 3 of Transparency in Regulatory Decision-Making; Policy Framework[34] states:

The Canadian Food Inspection Agency (CFIA) is committed to being as transparent as possible and will proactively provide the public with useful and timely information on CFIA regulatory programs and services, regulatory requirements, and the outcomes of its enforcement actions and decisions.

The CFIA’s Statement of Rights and Service for Producers, Consumers and Other Stakeholders[35] states in part that:

When dealing with us, you will be treated with respect, professionalism, fairness, and impartiality. You have the right to

[…];

• be advised of the reasons for our decisions in writing, where practical or legally required;

[…].

The Appellant, either directly or through his counsel, has requested copies of the CFIA Decisions on five occasions, but has not yet received a copy of either of them.

Moreover, despite repeated requests, the Appellant has not received an adequate, written explanation for either of the CFIA Decisions. There is no practical impediment to the CFIA providing written reasons to the Appellant. Therefore, Staff’s failure to provide adequate written reasons to the Appellant violates the CFIA’s Statement of Rights and Service for Producers, Consumers and Other Stakeholders. That failure also constitutes a violation of common law principles of procedural fairness.

Staff’s failure to provide to the complainant either of the CFIA Decisions or adequate written reasons for those decisions also violates the CFIA’s obligation of transparency, as set forth in Transparency in Regulatory Decision-Making; Policy Framework.

Staff Failed to Provide to the Appellant a Reasonable Opportunity to be Heard

Common law rules of procedural fairness obliged Staff to provide to the Appellant a reasonable opportunity to be heard.[36] Staff deprived the Appellant of a reasonable opportunity to be heard by receiving submissions, whether directly or indirectly, from B’Nai Brith, CIJA and Michael Levitt without disclosing those submissions to the Appellant, and by failing to provide to the Appellant any opportunity to respond to those submissions.

As documented above, the Appellant first learned of the Initial CFIA Decision on July 12, 2017, when he read B’Nai Brith’s First July 12 FB Post. According to CIJA, it learned of the Initial CFIA Decision on the prior day (July 11, 2017) and, upon learning of the Initial CFIA Decision, “immediately contacted key staff in the offices of the Minister of International Trade and Global Affairs Canada.” In their contemporaneous public commentary, B’Nai Brith and Michael Levitt confirmed that, before the CFIA reversed the Initial CFIA Decision, they too had lobbied the Canadian government and/or the CFIA to reverse the Initial CFIA Decision.

Even though the Appellant is the individual who prompted the Initial CFIA Decision, at no time prior to the CFIA’s issuance of the Reversal Decision was the Appellant afforded an opportunity to respond to the submissions made by B’Nai Brith, CIJA or Michael Levitt to the Canadian government and/or Staff. Indeed, to this very day, and despite the Appellant’s repeated requests for disclosure, the CFIA has not disclosed to the Appellant those submissions.

Staff’s Decision to Allow the Settlement Wines to be Falsely Labelled as “Product of Israel” Violates Canadian and International Law

Overview

Several federal laws and regulations require the labels on wines sold in Canada, including the Settlement Wines, to be correct, true and non-misleading.

The labels on the Settlement Wines clearly state that those wines are “Product of Israel” or “Made in Israel”. This is false: indeed, there appears to be no dispute that the Settlement Wines were produced in the West Bank.

It is beyond reasonable dispute that the West Bank and the OPT do not fall within the internationally recognized boundaries of the State of Israel and do not form part of the State of Israel. Canada’s Ministry of Foreign Affairs (“Foreign Affairs”) acknowledges as much. Moreover, it is beyond reasonable dispute that Israel’s settlements in the West Bank violate the Fourth Geneva Convention and constitute a war crime under the Rome Statute of the International Criminal Court. Foreign Affairs acknowledges that Israel’s settlements in the West Bank constitute a violation of the Fourth Geneva Convention.

Finally, nothing in CIFTA authorizes the false labelling of the Settlement Wines. CIFTA is intended to eliminate barriers to trade. A consumer protection requirement of general application that product labels must be true, correct and non-misleading is not a barrier to trade.

Accordingly, the labels on the Settlement Wines violate Canadian law. The CFIA is thus obliged to prohibit their sale and importation into Canada unless and until the Settlement Wines are accurately labelled.

Israel’s West Bank Settlements Violate the Fourth Geneva Convention and Constitute a War Crime; They Do Not Form Part of the State of Israel

The International Court of Justice (“ICJ”) is the principal judicial organ of the United Nations. It was established in June 1945 by Article 7 of the Charter of the United Nations (“UN Charter”). Canada is a party to the U.N. Charter and a founding member of the United Nations.

In 2004, the ICJ rendered an advisory opinion in which it held, unanimously, that Israel’s settlements in the West Bank violate Article 49 of the Fourth Geneva Convention. As stated by the ICJ in its summary of that advisory opinion[37]:

The information provided to the Court shows that, since 1977, Israel has conducted a policy and developed practices involving the establishment of settlements in the Occupied Palestinian Territory, contrary to the terms of Article 49, paragraph 6, of the Fourth Geneva Convention which provides: “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” The Security Council has taken the view that such policy and practices “have no legal validity” and constitute a “flagrant violation” of the Convention. The Court concludes that the Israeli settlements in the Occupied Palestinian Territory (including East Jerusalem) have been established in breach of international law.

Accordingly, the Government of Canada has long recognized that the OPT (including the West Bank) is not part of Israel and that Israel’s settlements in the OPT violate the Fourth Geneva Convention. The Canadian Government’s Global Affairs website[38] states:

Canada does not recognize permanent Israeli control over territories occupied in 1967 (the Golan Heights, the West Bank, East Jerusalem and the Gaza Strip). The Fourth Geneva Convention applies in the occupied territories and establishes Israel’s obligations as an occupying power, in particular with respect to the humane treatment of the inhabitants of the occupied territories. As referred to in UN Security Council Resolutions 446 and 465, Israeli settlements in the occupied territories are a violation of the Fourth Geneva Convention. The settlements also constitute a serious obstacle to achieving a comprehensive, just and lasting peace.

According to the BBC, every government in the world, except Israel, considers Israel’s settlements in the West Bank to be a violation of international law.[39]

The United Nations Security Council and General Assembly have repeatedly condemned Israel’s settlements as a violation of the Fourth Geneva Convention.  The Security Council’s most recent condemnation was issued in December 2016, when the Security Council adopted Resolution 2334, by a vote of 14-0 (with the United States abstaining). Resolution 2334[40] states, in part, as follows:

The Security Council,

Reaffirming its relevant resolutions, including resolutions 242 (1967), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 1397 (2002), 1515 (2003), and 1850 (2008),

Guided by the purposes and principles of the Charter of the United Nations, and reaffirming, inter alia, the inadmissibility of the acquisition of territory by force,

Reaffirming the obligation of Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and recalling the advisory opinion rendered on 9 July 2004 by the International Court of Justice,

Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions,

Expressing grave concern that continuing Israeli settlement activities are dangerously imperilling the viability of the two-State solution based on the 1967 lines,

Recalling the obligation under the Quartet Roadmap, endorsed by its resolution 1515 (2003), for a freeze by Israel of all settlement activity, including “natural growth”, and the dismantlement of all settlement outposts erected since March 2001,

[…]

1. Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace;
2. Reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard;
3. Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations;
4. Stresses that the cessation of all Israeli settlement activities is essential for salvaging the two-State solution, and calls for affirmative steps to be taken immediately to reverse the negative trends on the ground that are imperilling the two-State solution;
5. Calls upon all States, bearing in mind paragraph 1 of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967;

[…]

[Emphasis added.] 

Article 25 of the U.N. Charter states that “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” Thus, Canada is obliged under the U.N. Charter to give effect to the Security Council’s call in Resolution 2334 for all U.N. members “to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967.”

Furthermore, Article 1 of the Fourth Geneva Convention[41] states that “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances” [emphasis added]. Thus, as a High Contracting Party to the Fourth Geneva Convention, Canada is obliged to ensure Israel’s respect for the Convention. By allowing the Settlement Wines to be falsely labelled as “Product of Israel”, the Canadian government is not only failing to fulfill its duty to ensure Israel’s respect for the Convention, but it is in fact facilitating Israel’s violation of the Convention by enabling Israeli settlers to profit from business activities conducted in illegal West Bank settlements through concealment of the true origin of the wines.

It is important to note that Parliament has adopted the Geneva Conventions Act.[42] Section 2 of that Act approves of the Geneva Conventions and certain protocols thereto. Section 3 of that Act declares that every person who, whether within or outside Canada, commits a grave breach referred to in Article 85 of Schedule V to the Act is guilty of an indictable offence, and, if the grave breach causes the death of any person, is liable to imprisonment for life; and, in any other case, is liable to imprisonment for a term not exceeding fourteen years. Schedule V, Article 85 (4)(a) of the Geneva Conventions Act states “In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed wilfully and in violation of the Conventions or the Protocol: (a) the transfer by the occupying Power of parts of its own civilian population into the territory it occupies …in violation of Article 49 of the Fourth Convention.” As stated above, the ICJ held unanimously in 2004 that Israel’s settlements in the West Bank constitute a violation of Article 49 of the Fourth Geneva Convention.

Finally, Canada is a party to the Rome Statute of the International Criminal Court (the “Rome Statute”). On its Global Affairs website, the Canadian government states that “Canadians can be proud of the central role Canada played in establishing the International Criminal Court (ICC)” and that “Canada supported the ICC effort from the very beginning and continues to support the ICC with crucial leadership, advocacy and resources.”

On June 29, 2000, Canada enacted the Crimes Against Humanity and War Crimes Act[43] (the “War Crimes Act”), becoming the first country in the world to adopt comprehensive legislation implementing the Rome Statute. Under section 4 of the War Crimes Act, every person is guilty of an indictable offence who commits genocide; a crime against humanity; or a war crime, and such persons are liable to life imprisonment.

By virtue of Sections 2(1) and 4(3) of the War Crimes Act, a “war crime” includes acts that are defined as “war crimes” under the Rome Statute. Under Article 8(2)(b)(viii) of the Rome Statute, a “war crime” includes:

The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.[44]

Thus, Israeli settlements in the West Bank constitute a war crime under Canadian domestic law and international law. They also constitute a flagrant and grave breach of the Fourth Geneva Convention. It is, moreover, beyond reasonable dispute that the West Bank does not lie within the internationally recognized boundaries of the State of Israel and that the Canadian government does not recognize Israeli sovereignty over the West Bank.

In view of the foregoing considerations, the representation that the Settlement Wines are “Product of Israel” is indisputably false and misleading. That misrepresentation constitutes concealment of a war crime.

The Settlement Wines Violate the Food and Drugs Act

Section 5(1) of the Food and Drugs Act[45] states:

No person shall label, package, treat, process, sell or advertise any food in a manner that is false, misleading or deceptive or is likely to create an erroneous impression regarding its character, value, quantity, composition, merit or safety.

Section 2 of the Food and Drugs Act defines “food” to include “any article manufactured, sold or represented for use as food or drink for human beings…” Thus, the Settlement Wines clearly constitute a “food” for purposes of the Food and Drugs Act, and the Section 5 prohibition on false, misleading or deceptive labels applies to the Settlement Wines.

The statement appearing on the labels of the Settlement Wines that those wines are “Product of Israel” constitutes a false, misleading or deceptive statement as to the character and merit of the Settlement Wines. That statement therefore constitutes a violation of Section 5 of the Food and Drugs Act.

In addition, and as stated on the CFIA website:

Country of Origin for Wine

A clear indication of the country of origin is required on all standardized wine products described in B.02.100 and B.02.102 to B.02.107 of the [Food and Drug Regulations “FDR”]. This declaration must be shown in English and French [B.01.012.(2), FDR] and must appear on the principal display panel [B.02.108, FDR].

A wine may claim to be wine of a country if:

1. the wine is made from at least 75 percent of the juice of grapes grown in that country and it is fermented, processed, blended and finished in that country; or
2. in the case of wines blended in that country, at least 75 percent of the finished wine is fermented and processed in that country from the juice of grapes grown in that country.

There appears to be no dispute that the Settlement Wines are made of juice from grapes grown entirely in the West Bank and that the Settlement Wines were fermented, processed, blended and finished entirely in the West Bank. Further, for the reasons explained above, it is indisputable that the West Bank is not part of the country of Israel. Thus, the claim appearing on the labels of the Settlement Wines that those wines are “Product of Israel” plainly violates the Food and Drug Regulations.

Finally, under Section 11(3) of the Canadian Food Inspection Agency Act[46], the CFIA is responsible for the enforcement of the Food and Drugs Act as it relates to food. By failing to prohibit the sale and importation of the Settlement Wines, which plainly violate Section 5 of the Food and Drugs Act and the Food and Drug Regulations, the CFIA is violating its statutory enforcement duty under Section 11(3) of the Canadian Food Inspection Agency Act.

The Settlement Wines Violate the Consumer Packaging and Labelling Act

Section 7(1) of the Consumer Packaging and Labelling Act[47] states that “No dealer shall apply to any prepackaged product or sell, import into Canada or advertise any prepackaged product that has applied to it a label containing any false or misleading representation that relates to or may reasonably be regarded as relating to that product.”

Section 2(1) of the Consumer Packaging and Labelling Act defines a “dealer” as “a person who is a retailer, manufacturer, processor or producer of a product, or a person who is engaged in the business of importing, packing or selling any product.” Thus, the producers, importers and sellers of the Settlement Wines constitute “dealers” within the meaning of the Act.

In addition, Section 2(1) of the Consumer Packaging and Labelling Act defines a “product” as “any article that is or may be the subject of trade or commerce…” That Section also defines a “prepackaged product” as “any product that is packaged in a container in such a manner that it is ordinarily sold to or used or purchased by a consumer without being re-packaged.” The Settlement Wines being sold in Canada are packaged in containers that are ordinarily sold to or used or purchased by a consumer without being re-packaged. Thus, the Settlement Wines constitute “products” and “prepackaged products” within the meaning of Section 2(1) of the Consumer Packaging and Labelling Act and are therefore subject to the prohibition contained in Section 7(1) of the Act against false or misleading statements on labels.

Section 7(2) of the Consumer Packaging and Labelling Act states:

For the purposes of this section, false or misleading representation includes

[…]

(c) any description or illustration of the type, quality, performance, function, origin or method of manufacture or production of a prepackaged product that may reasonably be regarded as likely to deceive a consumer with respect to the matter so described or illustrated.

[Emphasis added.]

As explained above, the Settlement Wines were produced in the West Bank and it is indisputable that the West Bank does not form part of the State of Israel. Thus, Settlement Wine labels which bear the designation “Product of Israel” are likely to deceive a consumer with respect to the country of origin of those wines. Therefore, the producers, importers and sellers of the Settlement Wines are clearly violating Section 7 of the Consumer Packaging and Labelling Act.

Importantly, Section 3 of the Consumer Packaging and Labelling Act states:

(1) Subject to subsection (2) and any regulations made under section 18, the provisions of this Act that are applicable to any product apply notwithstanding any other Act of Parliament.

Exemption

(2) This Act does not apply to any product that is a device or drug within the meaning of the Food and Drugs Act.

[Emphasis added.]

Thus, neither CIFTA nor the Canada-Israel Free Trade Agreement Implementation Act[48], which implements CIFTA, could override the prohibition on false and misleading labels contained in Section 7 of the Consumer Packaging and Labelling Act.

Finally, under Section 11(2) of the Canadian Food Inspection Agency Act[49], the CFIA is responsible for the enforcement of the Consumer Packaging and Labelling Act as it relates to food. By failing to prohibit the sale and importation of the Settlement Wines, which plainly violate Section 7 of the Consumer Packaging and Labelling Act, the CFIA is violating its statutory enforcement duty under Section 11(2) of the Canadian Food Inspection Agency Act.

The Settlement Wines Violate the Competition Act

Section 52(1) of the Competition Act[50] states:

No person shall, for the purpose of promoting, directly or indirectly, the supply or use of a product or for the purpose of promoting, directly or indirectly, any business interest, by any means whatever, knowingly or recklessly make a representation to the public that is false or misleading in a material respect.

Section 2(1) of the Competition Act defines “product” to include “an article and a service” and defines an “article” to mean “real and personal property of every description…”  Thus, the Settlement Wines constitute an “article” for purposes of the Competition Act and are subject to the Act’s prohibition, contained in section 52(1), against the false and misleading promotion of a product.

Clearly, the purpose for which the Settlement Wines are falsely labelled as “Product of Israel” is to conceal that these wines are in fact made in settlements that flagrantly violate international law. It is equally clear that this concealment serves to promote the business interests of the producers, importers and sellers of these wines: if Canadian consumers were made to understand that their purchase of these wines would profit individuals who are complicit in a war crime, many of them would elect not to purchase these wines.

Thus, the falsely labelled Settlement Wines violate section 52(1) of the Competition Act.

CIFTA Does Not Authorize False and Misleading Labels on Products from Israel’s Illegal Settlements

According to the terse statement posted on the CFIA’s website following the reversal of the Initial CFIA Decision, Staff “did not fully consider” CIFTA and reversed the Initial CFIA Decision because “CIFTA (Article 1.4.1b) indicates that these wines adhere to the Agreement…”

To the Appellant’s knowledge, Staff have never explained publicly what this statement means. In particular, in what sense do the Settlement Wines “adhere” to CIFTA, and, assuming that the Settlement Wines in fact “adhere” to CIFTA, why does such adherence permit the producers, importers and sellers of those wines to mislead Canadian consumers as to the Settlement Wines’ country of origin?

It appears that Staff are now taking the position that the Settlement Wines were produced in a location that falls within the “territory” of Israel, as that term is defined in Article 1.4.1b of CIFTA. Assuming this to be the case, however, it does not follow that the Settlement Wines may be represented to Canadian consumers to be “Product of Israel”.

Article 1.4.1b of CIFTA states, in pertinent part:

For the purposes of this Agreement, unless otherwise specified:

[…]

• territory means:

[…]

(b) with respect to Israel the territory where its customs laws are applied;

[Emphasis added.]

First, Staff’s interpretation of CIFTA gives no effect to the words “For purposes of this Agreement.” On the contrary, Staff’s interpretation of CIFTA wrongly assumes that Article 1.4.1b’s definition of “territory” of Israel applies for all purposes, including consumer protection purposes.

Based on the plain wording of CIFTA, any analysis of the scope and effect of Article 1.4.1b must begin with a consideration of the purposes of CIFTA. The purposes of CIFTA are set forth in Article 1.2, which states:

Article 1.2: Objective

1. The objective of this Agreement, as elaborated more specifically in its provisions, is to eliminate barriers to trade in, and facilitate the movement of, goods between the territories of the Parties, and thereby to promote conditions of fair competition and increase substantially investment opportunities in the free trade area.
2. The Parties shall interpret and apply the provisions of this Agreement in the light of its objective set out in paragraph 1 and in accordance with applicable rules of international law.
3. Each Party shall administer in a consistent, impartial and reasonable manner all laws, regulations, decisions and rulings affecting matters covered by this Agreement.

 [Emphasis added.]

It is thus clear that the purpose of CIFTA is to eliminate barriers to trade. A barrier to trade is a government-imposed restraint on the international flow of goods or services.[51] The most common trade barrier is a tariff. Other trade barriers include quotas and subsidies. Although it is possible for a consumer protection requirement to constitute a barrier to trade, the vast majority of such requirements constitute legitimate action by a government to inform and protect the public. Therefore, they do not run afoul of trade agreements. The Government of Canada recognizes this on its Global Affairs website[52]:

Successive rounds of multilateral trade negotiations at the World Trade Organization (WTO), and the negotiation of numerous bilateral and regional trade arrangements have led to a substantial reduction in global tariffs. As tariffs have decreased, there has been increased focus on ensuring non-tariff measures or policies, including technical regulations and standards, do not restrict or distort international trade.

Governments use technical regulations and standards to achieve a range of policy goals, such as ensuring the health and safety of their citizens, protection of the environment, and consumer protection. While the vast majority of technical regulations and standards are designed to achieve non-trade related objectives, they can also have the unintended effect of restricting or distorting trade. Furthermore, as the use of tariffs as a trade-policy tool has diminished, there can, at times, be an increased incentive for governments to use regulations and standards as an alternative, and less transparent means of restricting the entry of foreign products.

[…]

Canada’s international trade agreements preserve the right of Canada and its trading partners to regulate in order to meet legitimate objectives, such as human health and safety, or environmental protection. At the same time, they impose rules that aimed at ensuring that technical regulations and standards do not unnecessarily restrict international trade. Having strong international rules relating to technical regulations and standards provides Canadian exporters with more secure, predictable access to foreign markets for their products. It also helps business and consumers, by ensuring that technical regulations and standards do not add unnecessary costs to internationally traded products.\

[Emphasis added.]

A legislative or regulatory requirement that labels on all wine products, whether domestic or foreign, accurately identify the product’s country of origin is not a barrier to trade. Such a requirement is a legitimate measure to inform and protect Canadian consumers. By their plain terms, Section 5 of the Food and Drugs Act, Section 7(1) of the Consumer Packaging and Labelling Act and Section 52(1) of the Competition Act apply to all wine products, whether domestic or foreign. Thus, they are non-discriminatory and preserve a level playing field for domestic and foreign wines. Under applicable laws and regulations, the country of origin labels on Canadian wines are no less required to be accurate than the country of origin labels on the Settlement Wines. Thus, those requirements are not barriers to trade and do not run afoul of CIFTA, nor does CIFTA’s definition of the “territory” of Israel bring the labels on the Settlements Wines into compliance with Canadian prohibitions on false and misleading labelling.

Second, Article 4.2 of CIFTA excludes all standards related-matters, noting that “The rights and obligations of the Parties relating to standards-related measures shall be governed by the Agreement on Technical Barriers to Trade [of the World Trade Organization].” Simply stated, CIFTA in no way affects the operation of Canada’s honest labelling laws.

Third, even if CIFTA contained a provision which purported to entitle producers in Israel’s illegal settlements to label their products as “Product of Israel” – and CIFTA contains no such provision – such a provision could not override Section 7 of the Consumer Packaging and Labelling Act because, as explained above, that Act applies to the Settlement Wines notwithstanding any other act of Parliament.

Finally, and as stated above, Article 1.2.2 of CIFTA requires that CIFTA be interpreted and applied in accordance with applicable rules of international law. The interpretation of CIFTA that Staff have adopted violates, among other aspects of international law, the Fourth Geneva Convention, the Rome Statute, the United Nations Charter, the ICJ’s 2004 advisory opinion as to the illegality of Israel’s settlements, and numerous resolutions of the United Nations Security Council and General Assembly.

Indeed, reduced to its bare essence, Staff’s interpretation of CIFTA is that this trade agreement obliges the Canadian government to acquiesce in the concealment of a war crime. Not only does that astonishing interpretation find no support in the terms of CIFTA, but it ought also to offend the conscience of each and every Canadian.

ENDNOTES

[1] A copy of the Appellant’s January 6, 2017 letter to the LCBO is attached hereto as Exhibit “A”.

[2] A copy of the LCBO’s March 8, 2017 letter to the Appellant is attached hereto as Exhibit “B”.

[3] A copy of the Appellant’s March 31, 2017 letter to the CFIA is attached hereto as Exhibit “C”.

[4] A copy of the April 13, 2017 email from Mr. Harlos to the Appellant is attached hereto as Exhibit “D”.

[5] A copy of the Appellant’s April 14, 2017 email to Mr. Harlos and of Mr. Harlos’s response thereto is attached hereto as Exhibit “E”.

[6] A copy of Mr. Harlos’s second April 18, 2017 email to the Appellant is attached hereto as Exhibit “F”.

[7] A copy of the Appellant’s May 16, 2017 email to Mr. Harlos and the response of Mr. Harlos to that email is attached hereto as Exhibit “G”.

[8] A copy of B’Nai Brith’s First July 12 FB Post is attached hereto as Exhibit “H”.

[9] http://www.bnaibrith.ca/what_is_b_nai_brith_canada.

[10] See, for example, “Toronto transit bans ‘Disappearing Palestine’ ad claiming risk of anti-Jewish violence,” Electronic Intifada, October 24, 2013. Available at: https://electronicintifada.net/blogs/ali-abunimah/toronto-transit-bans-disappearing-palestine-ad-claiming-risk-anti-jewish-violence.

[11] A copy of the Appellant’s July 12, 2017 email to Mr. Harlos is attached hereto as Exhibit “I”.

[12] A copy of B’Nai Brith’s Second July 12 FB Post is attached hereto as Exhibit “J”.

[13] A copy of the Appellant’s second July 12, 2017 email to Mr. Harlos is attached hereto as Exhibit “K”.

[14] A copy of Mr. Lascaris’s July 13, 2017 letter to Messrs. Harlos and Caron is attached hereto as Exhibit “L”. Please note that that letter was misdated as July 15, 2017 and that it was in fact emailed to Messrs. Harlos and Caron at 3:40 p.m. on July 13, 2017.

[15] A copy of the statement posted on the CFIA’s website on July 13, 2017 is attached hereto as Exhibit “M”.

[16] A copy of B’Nai Brith’s Facebook post of July 13, 2017 is attached hereto as Exhibit “N”

[17] A copy of B’Nai Brith’s July 13, 2017 article is attached hereto as Exhibit “O”.

[18] Copies of CIJA’s two July 13 statements are attached hereto as Exhibit “P”.

[19] http://www.cija.ca/about-us/.

[20] “CIJA frequently lobbied MPs it took to Israel in 2016,” iPolitics, March 31, 2017. Available at: http://ipolitics.ca/2017/03/31/cija-frequently-lobbied-mps-it-took-to-israel-in-2016/.

[21] A copy of the July 13, 2017 article in the Times of Israel is attached hereto as Exhibit “Q”.

[22] https://en.wikipedia.org/wiki/Judea_and_Samaria_Area.

[23] “The Israeli Colony Psagot”, Electronic Intifada, September 6, 2002. Available at: https://electronicintifada.net/content/israeli-colony-psagot/9390.

[24] “2,026 Settlement Homes Built on Private Palestinian Land, Right-wing Study Finds,” Haaretz, March 3, 2015. Available at: http://www.haaretz.com/israel-news/1.654698.

[25] “Explained: Israel’s New Palestinian Land-grab Law and Why It Matters,” Haaretz, February 7, 2017. Available at: http://www.haaretz.com/israel-news/1.770102.

[26] “Unfortunately There Are Many More Decent Than Brave People – Michael Sfard,” Mondoweiss, March 12, 2017. Available at: http://mondoweiss.net/2017/03/unfortunately-decent-michael/.

[27] “Palestinians ask Israeli court to reject land grab law,” Aljazeera, February 12, 2017. Available at: http://www.aljazeera.com/indepth/features/2017/02/palestinians-israeli-court-reject-land-grab-law-170209081244613.html.

[28] A copy of the July 13, 2017 article in the National Post is attached hereto as Exhibit “R”.

[29] A copy of the Appellant’s July 17, 2017 email to Mr. Glover is attached hereto as Exhibit “S”.

[30] A copy of Mr. Lascaris’s July 25, 2017 letter to Messrs. Glover, Harlos and Bawden is attached hereto as Exhibit “T”.

[31] http://www.inspection.gc.ca/about-the-cfia/organizational-information/vision-and-mission/eng/1299780188624/1319164463699.

[32] http://mlevitt.liberal.ca/news-nouvelles/statement-on-cfias-error-and-reversal-on-labelling-of-israeli-wines/.

[33] “EKOS Poll: Canadians Receptive to Boycotts and Sanctions Against Israel”, Independent Jewish Voices, March 1, 2017, at: http://ijvcanada.org/2017/poll-on-bds/.

[34] http://www.inspection.gc.ca/about-the-cfia/accountability/transparency-in-regulatory-decision-making/eng/1363183662938/1363185978804.

[35] http://www.inspection.gc.ca/about-the-cfia/accountability/statement-of-rights-and-service/message/eng/1326320466901/1326320527397.

[36] Baker v. Canada (Minister of Citizenship & Immigration) [1999] 2. S.C.R. 817.

[37] http://www.unrod.org/docs/ICJ-Advisory2004.pdf.

[38] http://www.international.gc.ca/name-anmo/peace_process-processus_paix/canadian_policy-politique_canadienne.aspx?lang=eng.

[39] http://news.bbc.co.uk/2/hi/7708244.stm.

[40] http://www.un.org/webcast/pdfs/SRES2334-2016.pdf.

[41] https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=FD45570C37B1C517C12563CD0051B98B.

[42] R.S.C., 1985, c. G-3.

[43] http://www.international.gc.ca/court-cour/index.aspx?lang=eng.

[44] https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf.

[45] R.S.C., 1985, c. F-27.

[46] S.C. 1997, c. 6.

[47] R.S.C., 1985, c. C-38.

[48] S.C. 1996, c. 33.

[49] S.C. 1997, c. 6.

[50] R.S.C. 1985, c. C-34.

[51] http://www.econlib.org/library/Topics/HighSchool/BarrierstoTrade.html.

[52] http://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/goods-produits/barriers.aspx?lang=eng.