Label the Occupation: Dr. David Kattenburg Files Further Material with the CFIA’s Complaints & Appeals Office
In January 2017, Dr. David Kattenburg filed a complaint with the Liquor Control Board of Ontario (LCBO) regarding two wines produced in Israel’s illegal West Bank settlements. Those two wines, Shiloh Legend KP and Psagot Winery M Series, were being sold in LCBO outlets with false “Product of Israel” labels.
Three months later, Dr. Kattenburg filed a complaint regarding these falsely labelled wines with the Canadian Food Inspection Agency (CFIA).
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 to reverse itself from the Israeli government and its advocates in Canada, including B’Nai Brith, the Centre for Israel and Jewish Affairs, and Liberal MP Michael Levitt. 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.
On August 6, 2017, Dr. Kattenburg filed an appeal with the CFIA’s Complaints and Appeals Office (CAO). Annex 1 to Dr. Kattenburg’s Appeal Intake Form, which sets forth the factual and legal basis of Dr. Kattenburg’s appeal, was posted on this website and can be viewed here.
Today, in my capacity as Dr. Kattenburg’s legal counsel, I filed with the CAO a supplemental letter setting forth additional facts and arguments in support of Dr. Kattenburg’s appeal. That letter is set forth below, in its entirety.
August 16, 2017
Thank you for taking the time to speak with me today regarding the CAO’s process for addressing complaints and appeals. As we discussed today, Dr. Kattenburg wishes to supplement the materials that we filed with the CAO on August 6, 2017 in support of his appeal. Those materials are discussed below.
- Times of Israel article entitled “Settlement Winery Touts Vino With a Biblical Vintage”
On September 19, 2014, the Times of Israel published an article entitled “Settlement Winery Touts Vino With a Biblical Advantage.”
As you will see, the September 19, 2014 article features the Psagot Winery, which produces one of the mislabeled wines of which Dr. Kattenburg has complained.
The Times of Israel article leaves no doubt that the Psagot Winery is situated in the heart of the occupied West Bank. The article also demonstrates that, when promoting Psagot wines to the Israeli media and to an Israeli audience, the founder and CEO of the Psagot Winery, Yaakov Berg, flaunts the fact that his winery is situated in the West Bank.
The Times of Israel article begins by disclosing that the Psagot winery is situated in “the middle of the West Bank, butting up against the suburban edges of Ramallah’s El Bireh neighborhood.” The article then states: “None of that bothers Yaakov Berg, the entrepreneur who founded the winery back in 1998. In fact, the winery’s location in the heart of Israel’s biblical landscape is one of the details he likes to mention when showing off the winery’s visitor center overlooking the striking rock-strewn hills.” The article further states “For Berg, a brash, charming 37-year-old who immigrated to Israel from Russia with his family when he was a toddler, Psagot’s location was his choice, and one that he always defends.”
The Times of Israel article also discloses that the Psagot Winery is “the perfect anchor” to over 40 illegal settlements situated in the area surrounding the winery. The article states:
The visitor center, just down the road from the settlement of Psagot, was built in conjunction with the Mateh Binyamin Regional Council, which includes 42 settlements and illegal outposts in the southern hills of the West Bank. Psagot, a community of some 1,600 people, is the seat of the council.
Pinchas Wallerstein, the former director of the settlement movement’s umbrella organization Yesha Council, wanted there to be a center for Mateh Binyamin, said Eli Sales, Psagot’s export manager.
“A winery was the perfect anchor,” he said.
- Veffer v. Canada (Minister of Foreign Affairs)
In 2008, Canada’s Federal Court of Appeal rendered a decision relating to the status of Jerusalem. In that case, Eliyahu Veffer, a Jewish Canadian citizen born in Jerusalem, sought to have his Canadian passport modified to reflect that he was born in Israel even though Jerusalem is not part of Israel under international law. Mr. Veffer argued that the Canadian government’s refusal to issue to him a passport which declared that Mr. Veffer was born in Israel violated Mr. Veffer’s rights under the Canadian Charter of Rights and Freedoms. The Federal Court of Appeal rejected Mr. Veffer’s arguments and upheld the decision of the Canadian government not to issue to Mr. Veffer a passport declaring him to have been born in Israel.
The Federal Court of Appeal began its analysis by stating:
[T]he United Nations takes the position, and has done so since the adoption of Resolution 181 in 1947 [Future Government of Palestine, GA Res./181(II)], that Jerusalem is not lawfully within the territory of any state. In other words, according to the United Nations, it is a territory without a sovereign. (The details of how and why the United Nations adopted this position are set out in the reasons for the judgment under appeal and need not be repeated here.)
Consistent with the United Nations’ position, Canada does not recognize de jure that any part of Jerusalem is a part of the territory of the state of Israel, even though Israel has controlled the western portion of Jerusalem since the early 1950s, and the eastern portion of Jerusalem since the war of 1967. Canada does, however, maintain a diplomatic practice of acknowledging Israel’s de facto control of the western portion of Jerusalem but not the eastern portion.
The Court then examined whether the Canadian government’s refusal to issue the requested passport to Mr. Veffer violated Mr. Veffer’s Charter right to freedom of conscience and religion. The Court accepted the sincerity of Mr. Veffer’s religious belief that Jerusalem is part of Israel, yet it held that the government’s refusal to issue to him the requested passport did not violate his Charter right to freedom of conscience and religion.
The Court of Appeal then examined Mr. Veffer’s argument that the Canadian government’s refusal to issue the requested passport violated Mr. Veffer’s equality rights under the Charter. The Court acknowledged that, normally, passports issued to Canadian citizens do reflect the country of birth of the passport holder. Nonetheless, the Court rejected Mr. Veffer’s claim that his equality rights had been violated. In so doing, the Court stated:
The evidentiary record discloses that Jerusalem is, as a matter of international law, a territory without an internationally recognized sovereign. In addition to that, persons born in and around Jerusalem hold serious competing beliefs as to the legal status of that territory. This is undoubtedly because Jerusalem is a city which has immense historic and religious significance to Jews, Christians and Muslims alike. The Passport Canada policy on Jerusalem merely seeks to reflect international law, recognizing the unique circumstances and sensitivities of all the people who live there. It is not, as Mr. Veffer suggests, “group targeting” or a reflection of arbitrary or stereotypical decision making.
However, the Passport Canada policy is more than that. It is acknowledgment by the Canadian government of the following direction by former Secretary‑General, Kofi Annan, in a statement delivered to an international meeting on the question of Palestine on March 8, 2005:
The long cherished dream of a vast majority of Israelis and Palestinians has been to live a normal life in peace and security. At long last, all of us can sense a newfound movement towards that dream. I urge everyone—the parties and the international community—to refrain from any actions that would be detrimental to the resumption of negotiations and implementation of the Road Map, or that could prejudge the resolution of final status issues. [Emphasis added.]
While the current political situation in the Middle East may not be the same today as it was when this statement was delivered, the importance of the objective of neutrality and non‑interference remains constant.
The Passport Canada policy is also the result of political sensitivity surrounding the status of Jerusalem, at the domestic and international level. Canada has, in the past, created or proposed policies which have been perceived by some as taking sides in the dispute. For example, in 1979 the Canadian government announced that the Canadian Embassy in Tel Aviv, Israel would be relocated to Jerusalem. This announcement apparently generated immense controversy, both domestically and internationally. It resulted in a study, led by the Right Honourable Robert L. Stanfield, on the spectrum of Canada’s relationship with the countries of the Middle East and North Africa, and more specifically, the question of the location of the Canadian Embassy in Israel. Following the release of the Stanfield Report, which recommended against moving the embassy, the Canadian government withdrew its earlier announcement (see affidavit of Michael D. Bell, at paragraphs 31 and 32). Of course, this appeal has nothing to do with the location of the Canadian Embassy in Israel.
In sum, we are of the view that the Passport Canada policy is a policy which reflects the truly unique circumstances pertaining to Jerusalem and respects the human dignity of all persons born and living in Jerusalem. Accordingly, we agree with the applications Judge that there is some correspondence between the Passport Canada policy and the particular circumstances of persons born in Jerusalem.
In Veffer, the Federal Court of Appeal held, in effect, that a Canadian citizen’s religious belief as to the status of Jerusalem – however sincere that religious belief may be – does not trump international law, and that, even though most Canadian citizens are entitled to receive passports which state their country of birth, the Canadian government’s refusal to issue to Mr. Veffer the passport that he sought was not discriminatory and did not violate his equality rights under the Charter. The passport issued to Mr. Veffer simply respected international law.
In effect, CFIA Staff seem to have ruled that non-Canadians who operate in illegal West Bank settlements and who are profiting from a war crime are entitled to misrepresent to Canadians that the West Bank is part of Israel, even though a law-abiding Canadian citizen like Mr. Veffer is not entitled to a passport which declares him to have been born in Israel.
Staff’s interpretation of Canadian law is manifestly wrong.
- Human Rights Watch report on Businesses Operating in the West Bank
In January 2016, the well-respected, U.S.-based human rights organization, Human Rights Watch (“HRW”), issued an extensive report regarding businesses operating in Israel’s illegal West Bank settlements. The report was entitled “Occupation Inc. – How Settlement Businesses Contribute to Israel’s Violations of Palestinian Rights.”
Although HRW’s report did not focus on settlement wines or wineries, its findings and conclusions are highly relevant to Dr. Kattenburg’s appeal. As stated by HRW:
[B]y virtue of doing business in or with settlements or settlement businesses, companies contribute to one or more of these violations of international humanitarian law and human rights abuses. Settlement businesses depend on and benefit from Israel’s unlawful confiscation of Palestinian land and other resources, and facilitate the functioning and growth of settlements. Settlement-related activities also directly benefit from Israel’s discriminatory policies in planning and zoning, the allocation of land, natural resources, financial incentives, and access to utilities and infrastructure. These policies result in the forced displacement of Palestinians and place Palestinians at an enormous disadvantage in comparison with settlers. Israel’s discriminatory restrictions on Palestinians have harmed the Palestinian economy and left many Palestinians dependent on jobs in settlements—a dependency that settlement proponents then cite to justify settlement businesses.
We urge the CAO to review the entire HRW report to gain a better understanding of the nature and extent of the complicity of settlement businesses in grave breaches of international law. To assist the CAO in its review of HRW’s report, we have prepared and enclose herewith a document identifying what we view as the excerpts from that report that are most pertinent to Dr. Kattenburg’s appeal.
- The Presumption of Legislative Conformity to International Law
In Ordon Estate v. Grail, the Supreme Court of Canada held that:
Although international law is not binding upon Parliament or the provincial legislatures, a court must presume that legislation is intended to comply with Canada’s obligations under international instruments and as a member of the international community. In choosing among possible interpretations of a statute, the court should avoid interpretations that would put Canada in breach of such obligations: see Driedger on the Construction of Statutes (3rd ed. 1994), at p. 330. [Emphasis added.]
Seventeen years later, in B010 v Canada (Citizenship and Immigration), the Supreme Court of Canada re-affirmed this principle, stating:
This Court has previously explained that the values and principles of customary and conventional international law form part of the context in which Canadian laws are enacted: R. v. Hape, 2007 SCC 26 (CanLII),  2 S.C.R. 292, at para. 53. This follows from the fact that to interpret a Canadian law in a way that conflicts with Canada’s international obligations risks incursion by the courts in the executive’s conduct of foreign affairs and censure under international law. The contextual significance of international law is all the more clear where the provision to be construed “has been enacted with a view towards implementing international obligations”: National Corn Growers Assn. v. Canada (Import Tribunal), 1990 CanLII 49 (SCC),  2 S.C.R. 1324, at p. 1371. […]
In keeping with the international context in which Canadian legislation is enacted, this Court has repeatedly endorsed and applied the interpretive presumption that legislation conforms with the state’s international obligations: see, e.g., Zingre v. The Queen, 1981 CanLII 32 (SCC),  2 S.C.R. 392, at pp. 409-10; Ordon Estate v. Grail, 1998 CanLII 771 (SCC),  3 S.C.R. 437, at paras. 128-31; GreCon Dimter inc. v. J.R. Normand inc.,2005 SCC 46 (CanLII),  2 S.C.R. 401, at para. 39; United States of America v. Anekwu, 2009 SCC 41 (CanLII),  3 S.C.R. 3, at para. 25; Németh v. Canada (Justice), 2010 SCC 56 (CanLII),  3 S.C.R. 281, at para. 34; Thibodeau v. Air Canada, 2014 SCC 67 (CanLII),  3 S.C.R. 340, at para. 113. This interpretive presumption is not peculiar to Canada. It is a feature of legal interpretation around the world. See generally A. Nollkaemper, National Courts and the International Rule of Law (2011), at c. 7. [Emphasis added.]
For the reasons stated in Annex 1 (page 29) to the Appellant’s complaint form filed with the CAO on August 6, 2017, Staff’s interpretation of the Canada-Israel Free Trade Agreement (CIFTA) 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. Thus, Staff’s interpretation of CIFTA offends the Supreme Court of Canada’s interpretive presumption that Canadian legislation conforms with Canada’s international obligations.
Should you have any questions regarding the materials discussed above, please do not hesitate to let me know.
Yours very truly,
Alexander D. Lascaris
 The September 19, 2014 Times of Israel article can be viewed here: http://www.timesofisrael.com/there-is-wine-over-the-green-line/.
  1 FCR 641, 2007 FCA 247 (CanLII).
 Paragraphs 4-5.
 Paragraphs 64-67.
 HRW’s January 2016 report on settlement businesses can be viewed here: https://www.hrw.org/report/2016/01/19/occupation-inc/how-settlement-businesses-contribute-israels-violations-palestinian.
  3 S.C.R. 437 at para. 137.
 2015 SCC 58 at paras. 47-48.
Human Rights Watch Report:
How Settlement Businesses Contribute to Israel’s
Violations of Palestinian Rights”
“In many cases, businesses are ‘settlers’ themselves, drawn to settlements in part by low rents, favorable tax rates, government subsidies, and access to cheap Palestinian labor.
“In fact, the physical footprint of Israeli business activity in the West Bank is larger than that of residential settlements. In addition to commercial centers inside of settlements, there are approximately 20 Israeli-administered industrial zones in the West Bank covering about 1,365 hectares, and Israeli settlers oversee the cultivation of 9,300 hectares of agricultural land. In comparison, the built-up area of residential settlements covers 6,000 hectares (although their municipal borders encompass a much larger area).
“Israeli settlements in the West Bank violate the laws of occupation. The Fourth Geneva Convention prohibits an occupying power from transferring its citizens into the territory it occupies and from transferring or displacing the population of an occupied territory within or outside the territory. The Rome Statute, the founding treaty of the International Criminal Court, establishes the court’s jurisdiction over war crimes including the crimes of transfer of parts of the civilian population of an occupying power into an occupied territory, and the forcible transfer of the population of an occupied territory. The ICC has jurisdiction over crimes committed in or from the territory of the State of Palestine, now an ICC member, beginning in June 13, 2014, the date designated by Palestine in a declaration accompanying its accession.
“Israel’s confiscation of land, water, and other natural resources for the benefit of settlements and residents of Israel also violate the Hague Regulations of 1907, which prohibit an occupying power from expropriating the resources of occupied territory for its own benefit. In addition, Israel’s settlement project violates international human rights law, in particular, Israel’s discriminatory policies against Palestinians that govern virtually every aspect of life in the area of the West Bank under Israel’s exclusive control, known as Area C, and that forcibly displace Palestinians while encouraging the growth of Jewish settlements.
“As documented in this report, it is Human Rights Watch’s view that by virtue of doing business in or with settlements or settlement businesses, companies contribute to one or more of these violations of international humanitarian law and human rights abuses. Settlement businesses depend on and benefit from Israel’s unlawful confiscation of Palestinian land and other resources, and facilitate the functioning and growth of settlements. Settlement-related activities also directly benefit from Israel’s discriminatory policies in planning and zoning, the allocation of land, natural resources, financial incentives, and access to utilities and infrastructure. These policies result in the forced displacement of Palestinians and place Palestinians at an enormous disadvantage in comparison with settlers. Israel’s discriminatory restrictions on Palestinians have harmed the Palestinian economy and left many Palestinians dependent on jobs in settlements—a dependency that settlement proponents then cite to justify settlement businesses.”()
“Moreover, states have certain obligations given the nature of Israel’s violations in the West Bank. The Fourth Geneva Convention requires states to ensure respect for the Convention, and they therefore cannot recognize Israeli sovereignty over the occupied Palestinian territories or render aid or assistance to its unlawful activities there. In an advisory opinion, the International Court of Justice found that states also have such obligations because Israel’s settlement regime—as well as the separation barrier, the main focus of the opinion—violate international laws that are erga omnes, meaning that all states have an interest in their protection.
“As a result, Human Rights Watch recommends that states review their trade with settlements to ensure they are consistent with their duty not to recognize Israeli sovereignty over the occupied Palestinian territories. For example, states should require and enforce clear origin labeling on settlement goods, exclude such goods from receiving preferential tariff treatment reserved for Israeli products, and not recognize or rely on any certification (such as organic or health and safety) of settlement goods by Israeli government authorities unlawfully exercising jurisdiction in the occupied territories.”()
“The second type of settlement business includes companies that engage in activities that do not directly provide services to residential settlements, yet nonetheless are based in settlements or settlement industrial zones. These businesses, which may be drawn by economic reasons, such as access to cheap Palestinian labor, low rents, or favorable tax rates, constitute the most significant commercial presence in settlements. They are principally manufacturers located in settlement industrial zones and agricultural producers, but this type also includes Israeli-administered companies engaged in extracting West Bank resources, such as quarries.
“In Human Rights Watch’s view, such businesses also contribute to and benefit from Israel’s rights abuses. First, they support residential settlements by providing employment to settlers and paying taxes to settlement municipalities. Second, their large physical footprint and disproportionate consumption of resources substantially contribute to Israel’s unlawful confiscation of Palestinian land and natural resources. Third, settlement manufacturers and farmers benefit from Israel’s discriminatory policies and its violations of international humanitarian law–in fact, many may choose to locate in settlements to take advantage of the benefits conferred by these policies and violations.
“Many settlement manufacturers and agricultural producers rely heavily on exports, such that businesses around the world become implicated in the abuses described in this report through their supply chain. These imports also implicate third-party states in a way that other kinds of settlement businesses do not, since the settlement goods pass through their borders, frequently labeled as made in Israel and benefitting from tariff agreements between the importing state and Israel.”()
“The 1995 Oslo interim agreement gave Israel exclusive control over what the agreement called Area C, which covers 60 percent of the West Bank, while it ceded some control to the newly established Palestinian Authority in Areas A and B. Area C, which is the only contiguous area of the three areas in the West Bank, contains all Israeli settlements and substantial amounts of the West Bank’s water sources, grazing and agricultural land, and the land reserves required for developing cities, towns, and infrastructure. Areas A and B are made up of 227 cantons that include most Palestinian towns and cities. The interim agreement was intended as a temporary stage in preparation for Palestinian statehood within five years, but it still remains in effect, and Israel maintains full administrative and military control over Area C.”()
“In Human Rights Watch’s view, all businesses located in settlements and settlement industrial zones depend on, contribute to, and benefit from Israel’s confiscation of Palestinian land, which violates international humanitarian law regardless of whether the land is privately owned or so-called ‘state land.'”()
“These settlement goods and agricultural produce are frequently labeled “Made in Israel” and benefit from preferential customs treatment many countries give to Israeli products. In November 2015, the European Union released an interpretative notice prohibiting the import of settlement goods labeled “Made in Israel,” citing its duty not to recognize Israeli sovereignty over the occupied Palestinian territories and EU consumer protection laws. For similar the reasons, since 2005, European Union regulations mandate that goods produced in settlements may not benefit from the EU free trade agreement with Israel, so manufacturers must pay 7 percent customs fees. According to media reports, the EU also bans all animal products and organic food produced in settlements from entering the EU.
“Since 1995, United States customs regulations have required goods originating in the West Bank and Gaza to be labeled as such – and specifically prohibit them from being labeled as made in Israel.
“Nonetheless, settlement businesses continue to label settlement products as “Made in Israel,” a practice defended by Israeli officials. In response to an EU call for labeling, Yair Lapid, who served as Minister of Finance in 2013 and 2014, called the initiative “a de-facto boycott of Israel,” since, in his words, “there is no difference between products which are produced over the Green Line and those that are produced within the Green Line.” The Israeli government also compensates settlement producers when importing countries levy customs duties on their products.”()
“Agricultural settlements benefit from Israel’s discriminatory allocation of land and water to settlers and an absence of government oversight over labor conditions. Only 9,500 Israeli settlers live in the Jordan Valley and Dead Sea area—dispersed among around 40 settlements (including settlement “outposts”). By contrast, between 60,000 and 80,000 Palestinians live in the area, constituting around 90 percent of the population. Yet Israel denies them the ability to build, cultivate or herd on around 87 percent of the land in the area, which Israel has restricted for settlements or military use only.
“The water-intensive settlement agriculture industry also heavily relies on water drawn from an aquifer entirely within the West Bank, with the cost of water extraction and provision subsidized by Israel. The Eastern Aquifer lying beneath the Jordan Valley contains one third of the West Bank’s underground water resources. According to B’Tselem, the 9,500 settlers in the Jordan Valley use around 44.8 million cubic meters of water a year, an amount equal to one-third the total amount used by the West Bank’s 2.6 million Palestinians. B’Tselem also found that in 2011, Israel allotted the average household in Jordan Valley settlements 7.5 times more water than the average Palestinian household in the same region (450 versus 60 liters per day). Palestinian farmers’ limited access to water and the higher price they pay for water have crippled their farms and livelihoods.”()
[Citations omitted; emphasis added.]