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

Dear [Sirs/Mesdames]:

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.

  1. 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.”[1]

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.

  1. Veffer v. Canada (Minister of Foreign Affairs)[2]

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.[3]

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.[4]

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.

  1. 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.”[5]

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.

  1. The Presumption of Legislative Conformity to International Law

In Ordon Estate v. Grail,[6] 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),[7] 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. Hape2007 SCC 26 (CanLII), [2007] 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), [1990] 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 Queen1981 CanLII 32 (SCC), [1981] 2 S.C.R. 392, at pp. 409-10; Ordon Estate v. Grail1998 CanLII 771 (SCC), [1998] 3 S.C.R. 437, at paras. 128-31; GreCon Dimter inc. v. J.R. Normand inc.,2005 SCC 46 (CanLII), [2005] 2 S.C.R. 401, at para. 39; United States of America v. Anekwu2009 SCC 41 (CanLII), [2009] 3 S.C.R. 3, at para. 25; Németh v. Canada (Justice)2010 SCC 56 (CanLII), [2010]  3 S.C.R. 281, at para. 34; Thibodeau v. Air Canada2014 SCC 67 (CanLII), [2014] 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

(Enclosure)

[1] The September 19, 2014 Times of Israel article can be viewed here: http://www.timesofisrael.com/there-is-wine-over-the-green-line/.

[2] [2008] 1 FCR 641, 2007 FCA 247 (CanLII).

[3] Paragraphs 4-5.

[4] Paragraphs 64-67.

[5] 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.

[6] [1998] 3 S.C.R. 437 at para. 137.

[7] 2015 SCC 58 at paras. 47-48.

_______________________________________________________________________

Human Rights Watch Report:
“Occupation Inc.
How Settlement Businesses Contribute to Israel’s
Violations of Palestinian Rights”

 Key Excerpts

“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.”([1])

[…]

“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.”([2])

[…]

“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.”([3])

[…]

“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.”([4])

[…]

“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.'”([5])

[…]

“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.”([6])

[…]

“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.”([7])

[Citations omitted; emphasis added.]

 

([1]) Pages 2-3.

([2]) Page 12.

([3]) Page 20.

([4]) Page 29.

([5]) Page 57.

([6]) Page 102.

([7]) Pages 109-110.

Niki Ashton: Supporting an NDP leader who shares our values

We are among the many Canadians who are joining the New Democratic Party  or renewing our membership in order to support Niki Ashton’s bid to become NDP leader. We invite you to join us in supporting her candidacy.

Niki Ashton was the first leadership candidate to courageously choose to address Palestine in her federal platform. Since then, she has shown consistent and principled support for the Palestinian people’s rights to self-determination, justice and dignity. She has used her platform to commemorate the Nakba and to stand with Palestinian hunger strikers held in Israeli administrative detention. She has been unapologetic and fearless when confronted with criticisms of these stances.

The conditions under which Palestinians now live are so appalling, and our government’s complicity in that suffering is so profound, that demanding justice for Palestinians ought now to be considered a political litmus test. A candidate who supports human rights for Palestinians shows that she understands the key issues and is courageous enough to address them in the face of public criticism. If this litmus test is failed, that candidate will eventually disappoint you on any other issues that matter to you.

For this reason, along with her continued commitments to our indigenous community, environmental justice, universal access to healthcare, free tuition and student debt relief, and ending gender-based violence and discrimination, we believe Niki Ashton is the only way forward for the New Democratic Party, and for Canada as a whole.

Currently, Canada’s government accords charitable status to the Jewish National Fund, which discriminates against Palestinians in the allocation of land in Israel. Canada’s government encourages extensive trade between the Canadian and Israeli military industries. Canada’s government votes consistently against United Nations resolutions condemning Israel’s human rights abuses, even though those resolutions enjoy overwhelming international support. Canada’s government allows products produced in Israel’s settlements – which constitute a war crime – to be sold in Canada bearing deceptive “Product of Israel” labels. As if this were not enough, our government is sitting idly by while Israel renders life unbearable for the 2 million inhabitants of Gaza. Trapped in a crumbling and sweltering open air prison with little if any electricity and meagre rations of food, the people of Gaza, one half of whom are children, have been reduced to a cruel experiment in the limits of human endurance.

To challenge all this, we need political leadership that speaks out fearlessly in favour of human rights for everyone. This is where you come in. This is what you need to know to make Niki Ashton the next leader of the New Democratic Party.

To vote for Niki, you must be an NDP member. Some of you may have supported another political party in the past, but no political party deserves unconditional loyalty. A political party deserves your support only when it is a vehicle to a better world. Our overarching loyalty ought to be to the values of justice, humanity and sustainability. A candidate who embodies those values, a candidate like Niki Ashton, deserves your support regardless of your past political affiliation.

Joining the NDP is simple. You can join through Niki’s official website, (nikiashton2017.ca), where you can also donate to her campaign or become a volunteer. If you’re under 26 years old or if you are un(der)employed, joining the NDP costs only $5. If you’re over 26 and employed full-time, the cost is $25 for a one-year membership. The last day to become a party member and vote for the next NDP leader is August 17. Online voting for the leadership race opens on September 18.

Niki has the courage of her convictions to win this race, but she can’t do it alone. It’s going to take all of us to make her the next leader of the New Democratic Party.

 

Dimitri Lascaris, Farida Fareh Lascaris, Stephanie Kelly, David Heap

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.

*************************************************

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 11th 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.

Indigenous Groups Win One, Lose One in the Supreme Court of Canada

This week, the Supreme Court of Canada released two important decisions relating to indigenous rights.

In one decision, the Court upheld a ruling by Canada’s controversial National Energy Board that allowed pipeline company Enbridge to expand Line 9. Line 9 is a tar sands pipeline that lies on the territory of the Chippewas of the Thames First Nation in southern Ontario. Line 9 will now carry highly toxic heavy crude across the Thames River.

In its second decision, the Court struck down an authorization given by the NEB to various petroleum exploration companies that would have allowed those companies to conduct seismic testing in Arctic waters off of Clyde River hamlet in Nunavut.

In this interview for The Real News, I discuss the implications of these two decisions with Jerry Nattanine, the former mayor of Clyde River, and Eugene Kung, a lawyer with West Coast Environmental Law:

http://therealnews.com/t2/story:19648:Indigenous-Groups-Win-One%2C-Lose-One-in-the-Canadian-Supreme-Court

 

Israel Flouts International Law While Targeting Human Rights Defenders

In October 2016, Hagai El-Ad, the Director of Israeli human rights group B’Tselem, made an extraordinary, direct appeal to the U.N. Security Council to take decisive action to end Israel’s brutal, 50-year occupation of Palestinian Territories. Two months later, the U.N. Security Council unanimously adopted Resolution 2334, which condemns Israel’s “flagrant violation” of international law. In this interview for The Real News, I speak to B’Tselem’s spokesperson Amit Gilutz about Israel’s complete disregard for Security Council resolution 2334 and the Netanyahu government’s relentless efforts to intimidate and silence courageous human rights defenders like those of B’Tselem. My interview of Amit Gilutz can be watched here:

http://therealnews.com/t2/index.php?option=com_content&task=view&id=31&Itemid=74&jumival=19623#.WXi4V0RVUM4.facebook

 

G20 Protestors Call for An Alternative To the Neoliberal Order

On the Real News, I speak to Professor Patrick Bond about the G20 summit in Hamburg, Germany. Professor Bond was in Hamburg throughout the summit and discusses the suppression of peaceful protest by German authorities and the complete absence of any concrete agreements at the G20 summit to address the climate crisis or grotesque inequalities around the world. My interview of Professor Bond can be watched here:

http://therealnews.com/t2/story:19510:G20-Protestors-Call-for-An-Alternative-To-the-Neoliberal-Order

U.S. Supreme Court Declines to Hear an Appeal by Ecuadorian Plaintiffs Seeking to Enforce a $9.5 Billion Judgment Against Chevron

Six years ago, the Courts of Ecuador issued against American oil giant Chevron a $9.5 billion judgment. This is believed to be the largest civil judgment in history. It arose out of the massive contamination of waters in the Ecuadorian jungle, referred to by local villagers as the “Chernobyl of the Amazon”. Before Ecuador’s courts issued the judgment, Chevron sold its assets in Ecuador, and thereby obliged the plaintiffs to collect on the judgment in other jurisdictions. In this report, I speak to human rights lawyer Steven Donziger, who has represented the Ecuadorian plaintiffs for over two decades. Steven explains that the U.S. Courts have refused to enforce the judgment against Chevron on the basis of evidence which Chevron has fabricated through the bribery of a key witness. But the Ecuadorian plaintiffs are also seeking to enforce the judgment in Canada and Brazil, where the Courts are likely to be far less receptive to the testimony of Chevron’s star witness. My interview of Steven Donziger can be watched here:

http://therealnews.com/t2/story:19374:US-Supreme-Court-Declines-to-Hear-Chevron-Pollution-Case