A legal case that might have been as dry as the wine at its core spilled over into larger, thornier questions about the West Bank and Jewish settlements.
Even though the central issue before the court is technical – whether a Canadian government agency was right to uphold a decision made at its lower levels – the matter of wines made in the West Bank and sold in Canada labelled as “Product of Israel” quickly turned political.
Over a day-and-a-half at Toronto’s Federal Court this week, the two sides agreed on just two broad areas: That legally, Jewish settlements in the West Bank are not part of Israel proper, and that the Canada-Israel Free Trade Agreement (CIFTA) does not address the labelling of products from Israel.
The case dates to 2017, when Winnipeg professor, pro-Palestinian activist, and self-described wine connoisseur David Kattenburg wrote to the Liquor Control Board of Ontario (LCBO) complaining that two wines on store shelves that were made in Jewish settlements were “falsely” labelled as “Product of Israel” because international law and Canadian policy do not recognize the West Bank as part of Israel.
Named in Kattenburg’s complaint were the Psagot winery northeast of Jerusalem, and the Shiloh winery in Ma’ale Levona, a West Bank settlement southeast of Ariel.
Acting on Kattenburg’s complaint, the Canadian Food Inspection Agency (CFIA) eventually ordered the LCBO to remove the two wines from shelves. The LCBO instructed its vendors to stop importing the products, citing the directive from the food agency that Israel “would not be an acceptable country of origin” for wines made “in the West Bank and occupied territory.”
“Suddenly, things went off the rails,” Kattenburg’s lawyer, Dimitry Lascaris, told the court.
The next day, amid frenzied activity on social media, pressure from Jewish organizations and a member of Parliament, and input from Israel’s Embassy in Ottawa, the agency reversed itself, saying it had not fully considered a small provision of CIFTA regarding “territory” where Israeli customs laws apply. The agency said it regretted its earlier ruling, and greenlighted the sale of the wines as labelled.
Kattenburg appealed to the CFIA’s Complaints and Appeals Office (CAO), which upheld the agency’s reversal. He then went to court seeking a judicial review of the CAO decision.
Lascaris said the CFIA and the appeals office erred because Israel’s customs laws do not apply to the West Bank, but mostly because the West Bank “does not form part of Israel” under international law or long-standing Canadian policy.
“Even under Israeli law, the West Bank is not part of Israel,” Lascaris said, noting that Israel itself refers to the region as disputed territory. “No one believes the West Bank is part of Israel, not even Israel.”
He cited the Geneva Conventions, United Nations resolutions, and legal decisions supporting that view, but stressed that the wines at issue violate two pieces of Canadian legislation: The Food and Drugs Act, which prohibits labels that are “false, misleading or deceptive,” and the Consumer Packaging and Labelling Act, which forbids “false or misleading” labels, including about “origin” (not “country of origin,” as he later stressed).
Asked by the judge, Anne Mactavish, which labels his client would prefer, Lascaris suggested “Product of the West Bank,” “Product of the Occupied Palestinian Territory,” or “Product of Palestine.”
He said such labelling would align Canada with the European Union and the United States.
But lawyers for the government said Canadian labelling laws are meant to address health and safety, not territorial issues or personal political beliefs.
The “only thing” before the court is the ruling by the appeals office upholding the earlier reversal, said lawyer Gail Sinclair. She said the legality of Jewish settlements is “totally irrelevant.”
As for labels specifying country of origin, “only one country, only one entity” in the region fits the bill, and that’s Israel, Sinclair said.
She said there is no such country as the West Bank or “occupied territory,” and Canada has not recognized Palestine as a sovereign nation, she added.
In situations where a territory does not constitute a country, it is “reasonable” to look at other indicators for labelling, stated the government’s filing. There is “nothing false, misleading or deceptive” about the “Product of Israel” label, and it does not violate Canada’s international legal obligations, it added.
And it was not “pressure” that changed the CFIA’s stance, but “as facts unfolded, there was a considerable amount of reaction,” stated the government’s co-counsel, Negar Hashemi.
Barbara Jackman, who represented Independent Jewish Voices (IJV), which won intervenor status in the case, argued freedom of expression, which “requires accurate speech.” Consumers, she said, are entitled to know what they’re buying “as a matter of conscience.”
IJV supports the anti-Israel boycott, divestment and sanctions campaign, and “a lot of people support BDS,” Jackman said. She said she found the government’s arguments “kind of strange,” given that Canada does not recognize permanent Israeli control over territories occupied in 1967.
David Matas, representing B’nai Brith Canada’s League for Human Rights, which also won intervenor status after it was initially refused, described the West Bank as being under “joint Israeli-Palestinian control,” but under Israeli control “for customs purposes.”
He pointed to the Oslo peace accords, which state that Jewish settlements remain under sole Israeli control. The settlements are Israeli in that sense, he said.
Israel has not annexed the settlements and incorporated them into Israel territory, Matas said, adding that Israel’s occupation of the West Bank remains “justifiable” because of “continued” terrorist attacks.
Mactavish said it appears as though there is room for “discretion” and that “exceptions” exist for current labelling rules for wines, noting that wines from California are labeled as such instead of “Product of the United States.”
Earlier, she appeared lukewarm to the government’s argument that consumers could always look up a wine’s origins before buying it.
Whatever the outcome after likely appeals, the case could have consequences for products imported from Jewish settlements, especially wines. According to a 2011 report, West Bank settlements are home to about 30 of Israel’s 150 wineries.
In an email to The CJN, Eli Sales of the Psagot winery said his wines are sold in about a dozen countries, including in Europe, and all state “Product of Israel.” He did not respond to a query on whether the winery would continue exporting to Canada if labels would have to change.