Southern Inspired. Whisky Infused.
December 7th, 2021
We’ll it’s been quite a ride!
The largest whisky raid in Canada in over 100 years took place almost 4 years ago at Fets Whisky Kitchen on January 18, 2018. Later this week, December 9th and 10th 2021, we will finally go before a British Columbia Supreme Court Justice to take the government to task. Along with our lawyer Mr. Daniel Coles, we have also hired Mr. Kevin Westell, a criminal lawyer to tackle the government’s breach of Section 8 of the Canadian Charter of Rights and Freedoms.
We believe that we will be vindicated.
We invite everyone to come join us in our quest for justice at 10am this Thursday and Friday at the BC Supreme Court, 800 Hornby Street, Vancouver.
As you may recall on January 18th, 2018, government liquor agents from Victoria arrived at our small family-run restaurant on Commercial Drive in a rented U-Haul van filled with empty boxes and a couple of hand trucks. The two out-of-town agents met a regional liquor inspector manager accompanied by two Vancouver Police Officers at the restaurant at 10am. Meanwhile on Vancouver Island liquor inspectors raided Nanaimo’s Grand Hotel, also at 10am. Later that day inspectors raided Victoria’s Little Jumbo Restaurant and The Union Club, all under the guise of “liquor inspections”. All coordinated for the same day, seeking the same product. Coincidence? We think not.
Allura Fergie, one of the owners of Fets Whisky Kitchen was called by a staff member advising her that the inspectors were there. Allura spoke to an agent on the phone and was told that she needed to attend the premises immediately. When she arrived, she was told “We’re seizing these bottles as evidence in an on-going investigation.” She asked if she had time to consult her lawyer and was told that she did not. She asked why the police were in attendance and was told they “Never know how these things go”. We’ve had many liquor inspections since we opened our doors in 1986 and never once were the police involved or in attendance.
We felt uncomfortable with how the government agents handled the situation and decided to challenge them. That’s when things got strange. We requested information regarding the “inspection” but were denied any information other than a record of all our previous liquor inspections. We were denied any information about why they raided our place and the three other establishments on the Island. We eventually filed an FOI request. Our request was repeatedly delayed, and our hearing was repeatedly postponed while we waited for the results of our FOI request. We finally received documentation from our FOI request. Hundreds of heavily redacted pages! What are they trying to hide?
Although we finally had some of the information we were looking for, we received it too late for our enforcement hearing. Due to the government’s delay in providing us the necessary documents needed for our defense, we missed our submissions deadline. We arrived for our enforcement hearing armed with this new information. The branch advocate and the adjudicator, who both work for the same government agency, denied us our right to produce evidence that we had just obtained from the government, their employers. We were told that none of this new information would be admitted as evidence, as we missed the submissions deadline. Our submissions would have been on time had the government not repeatedly delayed the release of our FOI request. We did find out that the government started their investigation on December 7th, 2017, seven weeks before what they refer to as a routine liquor inspection. The investigation had a name, Operation Barley Malt. There were emails between government actors discussing the raid and how it was going to go down. There was even approval for the raids from management. All for a routine inspection?
When Government Liquor Agents conduct inspections, licensees are compelled under the liquor Control and Licensing Act to answer all of the agent’s questions and supply them with all requested documentation. When the government conducts an investigation and arrives to further their investigation — remember they were “seizing these bottles as evidence in an ongoing investigation” — they have other rules and guidelines to follow. As with all government agents seeking evidence while building a case, licensees are to be issued a Charter Caution and the agents are to produce a Search and Seizure warrant to conduct a search and to seize any evidence pertaining to said investigation. The agents did not produce a warrant, nor did they issue Allura a Charter Caution advising her of her rights.
These government actors conducted a seven-week investigation, including clandestine visits to the four establishments being investigated, thus requiring them to follow their rules under section 44 of the Liquor Control and Licensing Act. When charges against any citizen of Canada can lead to incarceration it is imperative that all government agents protect the rights and freedoms of the citizenry. This licensee was charged under sections of the act that carry penalties that include incarceration. Both owners had jail time held over them for over a year. It wasn’t until the enforcement hearing that they were told the government wasn’t pursuing jail time. Needless to say, it was a very stressful year.
As the agents came in using their inspection powers, we incriminated ourselves by answering their questions as instructed. The information garnered at the time of the “inspection”, through their continuing investigation and follow up communications was used as evidence against us. This is Canada, we are looked upon by the world as having a fair judicial system. But this was not fair. This is not how our system was designed to work. Rogue agents and bad government actors are dangerous to us all.
We are located at: 1230 Commercial Drive, Vancouver BC
Southern Inspired. Whisky Infused.
We’re still fighting the government for the release of the 242 bottles of extremely rare whisky that was unlawfully seized by the government last year but we still have more than 1,000 on our our shelves!
The lengthy Liquor Control and Licensing investigation, code named “Operation Barley Malt”, culminated with the January 2018 whisky raid here at The Whisky Kitchen. We have received a ruling from our May 2019 enforcement hearing relating to the raid and the seizure of 242 bottles of some of the world’s rarest whiskies, and it isn’t in our favor. Read the 64 page ruling here
We will be appealing the ruling by requesting a “reconsideration”. The Reconsideration will be conducted by another adjudicator who also works for the same government agency that conducted the investigation, the raid and that ruled against us. Due to the relationship of the parties involved our lawyer, Dan Coles, is not confident that it will be overturned. We are required to appeal the ruling if we want to see this through and get it heard in The Supreme Court. The question here is: Should the Provincial Government and its agents be required to follow their own rules, regulations and policies as well as The Canadian Charter of Rights and Freedoms? We believe they should.
The overturning of this ruling is paramount to our industry’s future, we are all aware of what’s on the shelves of the bars and restaurants all across our province. There are literally thousands of cocktails that are illegal to be made, served and sold in this province as we are not allowed to have the ingredients on our shelves. In other words, the government wants us to all sell the same cocktails, wines, spirits and the same beer because our government does not believe in choice or competition. The ruling goes deeper than this, this ruling sets a dangerous precedent whereby the government declares their right to ignore The Canadian Charter and the Rule of Law. The Government is supposed to be the people and for the people and we are tired of the power and control this regime yields over us in this regard. For a delegate of our government to state that; “A licensee does not have the same expectation of freedom from search and seizure as a private citizen in other contexts may have – because of the very nature of the liquor control and licensing regime” is, frankly, quite disturbing.
Re: Fets Whisky Kitchen, Case EH18-003: Why it matters to you
On the morning of January 18, 2018 three liquor inspectors attended Fets in a rented Uhaul 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. 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.
Earlier this summer, on June 6, 2019 a delegate of the General Manager issued a 64 page written decision confirming that the actions of the liquor inspectors were lawful, and ordered a monetary penalty against Fets in the amount of $3,000. Fets has applied, under the Act, to have the decision reconsidered.
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 their jeopardy when detained by officers of the state, 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.
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
Mark Gillespie from WhiskyCast.com has been following this story from the beginning and has written an article regarding the ruling, it can be found here: Fets Whisky Kitchen loses SMWS Legal Battle with British Columbia Regulators
Allura and Eric thank everyone for their continued support through this ordeal.
We are located at: 1230 Commercial Drive, Vancouver BC