Free the Whisky

On the morning of January 18, 2018 three liquor inspectors from the BC Liquor Control and Licencing Branch (BCLB) attended Fets in a rented U-Haul van, filled with empty boxes. They entered the premises, requested the attendance of the Vancouver Police Department, and after briefly interviewing one of the owners of the establishment, they seized (over a period of several hours) 242 bottles of Scotch whisky, all of one brand; The Scotch Malt Whisky Society. They did so without a search warrant, and they did not advise the owner that Fets was being investigated for an offence, for which she could be jailed if convicted.

Simultaneous raids were conducted in Victoria at Little Jumbo and the Union Club as well as The Grand Hotel in Nanaimo. All 4 establishments were Scotch Malt Whisky Society Partner Bars and the only whisky taken at each location were the SMWS bottles.

Believing the actions of the BCLB to be improper, Fets refused to accept the penalty imposed by the BCLB and requested a hearing. Fets requested documents related to the investigation and this was refused by the BCLB; a subsequent Freedom of Information request was heavily redacted and arrived after the submissions deadline. Finally, following the hearing, on June 6, 2019 a delegate of the General Manager of the BCLB (in other words, the same organization that laid the charges makes the decision on whether their actions were lawful) issued a 64 page written decision confirming their view that the actions of the liquor inspectors were lawful, and confirming the monetary penalty against Fets in the amount of $3,000. Fets applied, as required under the Act, to have the decision reconsidered. The BCLB upheld the original decision and therefore Fets has appealed the decision to the BC Supreme Court under a judicial review application.

The General Manager’s decision, if not varied or rescinded, will set a dangerous precedent for all liquor licensees in British Columbia. In summary, the decision confirms as acceptable the following practices of the Branch and liquor inspectors:

·         When a licensee is faced with enforcement action, the Branch only needs to disclose to it the documents that help it prove the contravention. It is not required to produce any other documents from its files that may assist the licensee in avoiding the contravention;

·         The General Manager’s delegate is not required to maintain an “open mind” during an enforcement hearing. It is acceptable for he or she to make up their mind at the very outset of the hearing, before evidence and submissions are made;

·         Liquor inspectors who observe liquor that in their opinion is kept contrary to the Act, can return at any time without a search warrant to seize it;

·         The Charter of Rights and Freedoms, which guarantees individuals the right to be free from unreasonable (warrantless) searches and the right to be informed of the potential for jail time,  does not apply to the enforcement of British Columbia’s liquor licensing regime; and

·         Liquor inspectors can rely on the “mandatory cooperation” powers contained in s.42 of the Act to conscript evidence from licensees that may be used in a prosecution of an offence for which imprisonment is a potential penalty.

All licensees should take notice of this dangerous and potentially precedent setting decision. Although currently it is only Fets dealing with the fallout, soon it will be other bars, restaurants and LRS’s who may face warrantless searches of their premises, and procedurally unfair hearings. British Columbians deserve better.

To date the costs fighting this exceed $40,000 and Fets is committed to an additional $30,000 to take this to the Supreme Court of British Columbia. These costs do not include the value of the Scotch Malt Whisky Society whiskies that were seized, those were valued, at the time of seizure, at more than $40,000, and all are irreplaceable. Fets is cautiously optimistic that the courts will side in Fets’ favour, but the government, with unlimited resources, can appeal the ruling. All funds raised are going towards this fight and any additional or excess funds will be put towards our lobbying efforts to see the implementation of the recommendations Mark Hicken laid out in the 2018 Liquor review. We will pledge any other remaining funds to the BC Hospitality Foundation.

Thank you for your support and together we can hold the government accountable to the Charter and amend our province’s archaic liquor laws.

Help us with this fight Here

If you wish to better understand how the decision could impact your establishment, or are interested in participating or assisting in a potential judicial review of the decision please contact our lawyer Dan Coles at bcliquorlaw.com

• Email your MLA
  Please let your MLA know that you are displeased with the current liquor laws in our province. We have included an email that you can copy and paste to send to your MLA. We have complied a list of every one of BC’s MLA’s email address as well as their Twitter handle, just to let… Read more: Email your MLA
• Email The Competition Bureau of Canada
  Please let the Competition Bureau of Canada know that you are displeased that the government of British Columbia is ignoring your findings in that the province is in breach of the Competitons act. We have included an email that you can copy and paste to send to the Canadian competition bureau. Just copy the entire… Read more: Email The Competition Bureau of Canada
• Court Filings
  In our ongoing attempt to rectify this injustice, we have filed multiple claims to the courts of British Columbia. Click on the links below to review these submissions: Fets Whisky Kitchen EH18-003 (PDF) Fets Whisky Kitchen Decision (PDF) Reconsideration Filing (PDF) Reconsideration Decision (PDF) Petition to the Court (PDF) Notice of Constitutional Question (PDF)
• Official Quotes
  The ministry confirmed that all liquor products sold by hospitality customers, specifically bars and restaurants, must be purchased through the provincial liquor distribution branch’s wholesale centre, BC Liquor Stores or through an authorized manufacturer. Unlawful seizure “Seizures are the result of careful investigations when, in the opinion of liquor inspectors, liquor is possessed or kept… Read more: Official Quotes
• Letter From the Competition Bureau
  News release January 17, 2019 — OTTAWA, ON In an open letter to the Honourable David Eby, Attorney General of British Columbia, Matthew Boswell, Interim Commissioner of Competition, encourages the province to consider the principles of competition while it reviews its liquor policy. Under British Columbia’s current liquor policy, private liquor distributors cannot sell their… Read more: Letter From the Competition Bureau
• 2018 Letter to the Attorney General
  Wednesday, January 31st Dear David Eby, Attorney General Province of British Columbia Thank you for your encouraging words to the media on Friday. They give our industry hope for change and confidence that you are approaching the subject with an open mind. I believe that this situation provides an excellent opportunity for our three political… Read more: 2018 Letter to the Attorney General
• The Canadian Charter
  Here’s a link to to a PDF of the charter: https://www.mcgill.ca/dise/files/dise/cdn_rights.pdf
• 2018 Email to MLAs
  Thursday February 15th, 2018 Members of the Legislative Assembly of British Columbia With a stroke of her pen Premier Notley has taken away from the people of her province their right to choose what products to buy. This arbitrary political decision to restrict imports penalizes both the people who have worked so hard to create… Read more: 2018 Email to MLAs