Washington Report on Middle East Affairs, March/April 2020, pp. 54-55
Freedom of expression and speech, two rights guaranteed to Canadians in the Canadian Charter of Rights and Freedoms, were at the center of a 2019 Federal Court ruling that wines produced in illegal Israeli settlements in the West Bank and sold in Canadian liquor stores cannot be labelled “Product of Israel.”
University of Manitoba professor and activist David Kattenburg led the court challenge after the self-described wine lover discovered settlement wine on the shelves of a local liquor store.
“This enraged me because what this essentially amounted to, and does amount to, is an Israeli claim of sovereignty over settlements and over the [Palestinian] lands the settlements sit on—on Canadian store shelves,” he said.
Consumers of conscience, he said, ought to have the right to know a product originates from settlements deemed illegal by international law. “Wouldn’t you want to know that the car you are buying on the car lot is a stolen car?” he said. “So it’s simply a matter of free choice.”
The legal challenge began in 2017 when Kattenburg filed a formal complaint with the Canadian Food Inspection Agency (the organization that oversees the labelling of food and beverages in Canada). CFIA ended up agreeing with Kattenburg’s analysis that the labels were misleading.
Yet, CFIA did a quick about-face within 24 hours of its decision, after Global Affairs Canada (a government department that manages diplomatic relations) got involved. GAC received complaints from a number of pro-Israel organizations, including B’nai Brith Canada and the Center for Israel and Jewish Affairs about the CFIA ruling. The Israeli Embassy in Ottawa also expressed its objection to the CFIA decision.
CFIA’s rationale for the reversal, Kattenburg explained, was that he and his legal team didn’t adequately consider the Canada-Israel Free Trade Agreement (CIFTA), which made the “Product of Israel” labelling permissible. Kattenburg balked at this assertion and pointed out that CIFTA does not apply to products originating from West Bank settlements.
Kattenburg believes the reversal had more to do with politics than the fine points of the trade agreement. “There was intense political pressure right up and down the hierarchy, right up to the PM’s [Prime Minister Justin Trudeau’s] office and they suddenly flip-flopped.”
After CFIA reversed its decision, Kattenburg and his lawyer Dimitri Lascaris took their case to the Federal Court of Canada for a judicial review and secured a favorable ruling. (The Federal Court reviews administrative decisions made by federal agencies for validity and correctness.)
Kattenburg said that one of the most significant aspects of the judge’s ruling was that free speech includes the right to accurate and truthful information about products. “I think this is huge,” he said. “The judge said Canadians have the right to boycott products based on their political conscience.”
Independent Jewish Voices (IJV), of which Kattenburg is a member, was a partner in the case. IJV’s lawyer argued that the Canadian Charter of Rights and Freedoms also applied in this case. The Charter provides for the right to free speech and freedom of expression—and consumer choice, IJV maintained, is a form of expression. The judge accepted IJV’s argument that truthful information (such as clear and accurate labelling) is essential for the exercise of free speech.
Kattenburg said he thinks the court ruling will help Canadians understand the illegality of West Bank settlements. “I think it will delegitimize the settlements. The purpose of the ‘Product of Israel’ label is to stake sovereign claim on the settlements and legitimize that claim.”
The Federal Court of Canada has instructed the CFIA to come up with new labels for settlement wines. The federal government has appealed the decision. Kattenburg and his lawyer have until March 2020 to respond to the appeal.
While pleased with his victory, Kattenburg is frustrated at just how far his government has gone to protect the rogue actions of the Israeli state. “Canada is actually going to court to defend Israel’s right to stake sovereign claim over the settlements,” he noted.