FreeTheWhisky
"An injustice against one is an injustice against all."
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.
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The General Manager's decision, if not varied or rescinded, will set a dangerous precedent for all liquor licensees in British Columbia.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.
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
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