I stopped counting how many wineries make up the Napa Vintners consortium in their directory when I reached 100. On another page on their website I found out there are more than 500. On the same page I found out that although the State of California is responsible for 81 percent of the USA’s wine production, Napa Valley only accounts for 4 percent of that, which is squeezed out of a landmass less than 50 kilometres long and only about 8 kilometres wide.

Despite its relatively small size, Napa Valley is a big brand. It was the first in the States to organize into an American Viticultural Area (AVA), the Yankee version of French appellations in 1968. If you stopped a person on the street anywhere in the wine-drinking world and asked them to name a Californian wine region, I think it’s a good bet that “Napa” or “Napa Valley” would be the first answer.

The modern history of Napa Valley wine might be said to have begun in 1966 when Robert Mondavi built a winery that would make his name a worldwide brand. Or, it might have been 10 years later at the so-called Judgement of Paris of 1976. Several films have been made about the competition set up by British ex-pat wine merchant Steven Spurrier and his American colleague Patricia Gallagher. It pitted California Chardonnay and Cabernet Sauvignon against Burgundy whites and Bordeaux reds in a blind-tasting contest mostly judged by French grandees of the wine world.

In retrospect, what’s surprising to a contemporary wine consumer is not that some of the California (mostly Napa) wines were deemed better than some of the French ones. The top wines in both categories were scandalously (to the French) American. Nearly half a century later, that no longer shocks and it’s a given that demand for top Napa wines rivals that for Bordelais and Burgundundian Grand Crus, as does their corresponding indicia, price.

What’s surprising is that the French judges couldn’t reliably tell the difference between the New World and Old World wines. The concept of terroir, the taste of a place, has long been a reliable marketing tool for French wines; where they came from was always the most important thing. That’s why one asks for Champagne and not sparkling wine.

This concept truly went global in the last two decades of the 20th century and the first two of this one. Not least in Napa Valley. The irony of the 1976 Judgement of Paris is that instead of discounting terroir, by questioning whether wines from the top vineyards in the top regions of France were really the best in the world it simply elevated another terroir into the top tier and encouraged the dreams of winemakers around the world that their region might also command that kind of respect.

It seems once the Napa winemakers had their terroir validated they then felt free to do their own Californian thing. By the late 80s or early 90s, I imagine most seasoned wine drinkers would have easily distinguished between American and French wines. If anything, the pre-global warming French hoped for a good year full of California sunshine.

I was thinking about this this week when the Napa Vintners came to Toronto to host a tasting for trade and media. Two of the Judgement wine wineries, in more recent vintages, were poured at the event: Freemark Abbey and Heitz Cellars. Chardonnay from the former was offered at the white wine walk-around that opened the event. The latter was featured in a sit-down tasting of 12 Cabernet Sauvignon from six Napa wineries. Mondavi wines from the famous To Kalon vineyard were featured in both, the white being his/their signature Fumé Blanc, which is the name under which they marketed Sauvignon Blanc in the 1960s, for fear that English speakers would trip up on the French.

Toronto-based globe-trotting Master Sommelier John Szabo played MC for the Cabernet Sauvignon tasting, which he explained was called Napa: Now and Then. Next to his dais, seated at a high table, were top executives representing the six wineries, including Heitz (Lawrence Wine Estates), Louis M. Martini (Gallo), Robert Mondavi, Trefethen, Spottswoode, and Cliff Lede.

The Now and Then theme referred to the pair of wines from each house, one between 10 and 15 years old, and one between four and five years old. The point, I think, was not so much to show variation in age, but more about styles in winemaking.

On the panel, Carlton McCoy, a master sommelier who runs Lawrence Wine Estates, which bought Heitz Cellars in 2018, and runs several other Napa wineries, made the point that since “Americans are an open-minded people” it was unlikely that the Napa Vintners would try and impose a particularly strict set of winemaking rules on the AVA. The wines would always be “vigneron driven,” and McCoy championed the idea that Napa wines meant to show “human expression” as much as terroir.

The 2008 Heitz Trailside Vineyard Cabernet Sauvignon, from the Rutherford sub-region, was compellingly Claret-styled with a dominance of cassis and a whisper of retained oak. The 2017 vintage of the same wine showed more red fruit, maybe a lighter style; less new oak, as is the fashion, and would have been more in line with the wines of the 1970s.

Nicholas Paris, a master of wine who is the director of wine and spirits education at E. & J. Gallo Winery, another modern California pioneering company, brought with him 2009 and 2019 Louis M. Martini Lot 1 Cabernet Sauvignon, both of which showed black fruit and hints of violet and mint; the older wine somewhat more mellowed and open. Martini is a winery that was established soon after Prohibition in the early 1930s, and Lot 1 sources grapes from sites across the Valley.

Two other wines of note were brought by Beth Weber Novak, whose mother and father bought the 19th-century vineyards at Spottswoode near St. Helena in the early 70s and whose mother Mary Novak reestablished the winery in 1982. The 2010 and 2020 Spottswoode Cabernet Sauvignon showed well for different reasons. The 2010 seemed like a classic cassis-driven Cab, elegant and silky in structure, to be lingered over long after dinner. The 2020 on the other hand was a bit of an outlier at the tasting, bursting with vibrant fruit energy ranging from red to black, compelling one sip after another.

I think it was Weber Novak who made the point that with the success of Napa wines in the late 20th century came money, and the money was used more often than not on new oak barrels. That tendency seems to be waning at some houses. And the younger wines shown mostly reflected this, although to varying degrees.

McCoy’s point is well taken. The success in the 1970s that established Napa Valley terroir has ultimately led to more freedom for the winemakers, in the field and in the cellar. Perhaps human expression is just a part of terroir after all. That sounds like a very Californian thing to say. Just don’t ask me how much any of the wines cost!

Premier Scott Moe vowed to use the notwithstanding clause to override a court ruling that paused the province’s high school pronoun policy last week.

It’s another example of an increased willingness among provinces to use section 33 of the Charter and, in the case of Saskatchewan, to use it preemptively, before the courts have made a judgment on a law’s constitutionality.

Here at The Hub, we’ve assembled some of the country’s top legal minds for their instant reactions to the ongoing controversy.

Moe needs to make a more convincing case

By Joanna Baron

The Saskatchewan dispute over preferred pronouns and Premier Scott Moe’s decision to pre-emptively invoke the notwithstanding clause is a fairly classic example of a case where the judiciary and legislature, based on their different informational inputs, have arrived at different conclusions about the content of rights.

To the King’s Bench judge who granted an interlocutory injunction against the policy, the risk of irreparable harm to trans youth was sufficiently made out. The Moe government, meanwhile, mirrors the overwhelming democratic preference for “parental rights,” for parents to be consulted in their child’s decision to socially transition. The policy only applies to children under the age 16.

At the court hearing, there was credible evidence brought on both sides. UR Pride’s experts focused on the mental health risks associated with a lack of support for a gender-diverse child. The government of Saskatchewan, for its part, tendered evidence from a Berkeley clinical psychologist who testified that parental involvement, as well as a professional assessment and medical plan, in youth gender identity was essential to avoid long-term gender dysphoria and other harms.

The thrust of UR Pride’s argument for the long-term risks of the preferred pronouns policy is that it presents dangers to the “minority within a minority,” the highly vulnerable group of gender-diverse youth who fear coming out to their parents as trans and thus would be prejudiced by a policy requiring parental consent prior for preferred pronouns. The policy does somewhat account for situations where harm may be present:

“In situations where it is reasonably expected that gaining parental consent could result in mental, physical, or emotional harm to the student, they will be directed to the appropriate school professional(s) for support.”

“Reasonably expected” accords a wide latitude for teachers and school staff to make judgments about a child’s home environment and, hopefully, exercise discretion accordingly.

By invoking the notwithstanding clause, Saskatchewan is signalling that it has a different interpretation of how to balance the rights of parents and children in a context where rapid onset gender dysphoria is on the rise, that includes a protected role for parents. It has turned its mind to accommodations where a child may be at risk. What remains to be seen is exactly what this interpretation is.

This week, Moe scrummed and claimed that s. 33 was intended to balance rights protected in the Charter with those not included (like parental rights). This is a bizarre take, and given that a government invoking the notwithstanding clause bears the political consequences of it, he will need to make a more compelling case.

Invoking section 33 is surprisingly cost-free for politicians

By Sean Speer 

In light of the recent use of the notwithstanding clause, there have been calls to constrain its invocation through some mix of legislative and constitutional action. I’ll leave it to others to debate the merits (or demerits) of these legalistic proposals. 

It seems to me though that a lot of these arguments fail to account for the principal constraint envisioned by those involved in drafting the 1982 Constitution: politics. 

It was assumed that politicians would need to consider the political trade-offs involved in invoking S.33 and that the inherent political costs of doing so would weigh heavily on their decisions. The basic idea was that, in a diverse and pluralistic society, there would be few issues with clear majority positions and therefore fragmented and shifting public opinion would serve as a check on the notwithstanding clause. 

It prompts the question: why haven’t politics acted as a greater constraint in recent years? I would point to two explanations.

The first is that judicial decision making has itself become political by which I mean it has come to too often advance conventional left-wing political views divorced from the constitution, and as a result eroded the distinction between the judiciary and the legislature. If the courts are going to effectively substitute their own political preferences for those of the duly elected legislature, it’s not a huge surprise that at some point politicians are going to push back. And it’s hard not to blame them. Who’s better placed to do social policy? Parliament or judges?

That many in the world of legal commentary and scholarship seem to believe that it’s the latter speaks to how we’ve ended up with the growing use of the notwithstanding clause. It reflects a general and specific corrective to a judiciary that has become unmoored from its institutional responsibility.

(I would say in parenthesis that I became personally motivated about judicial overreach in the aftermath of the Carter decision on physician-assisted death. It’s not because I was strongly opposed to the decision per see [though on balance I probably oppose the legal regime that’s followed it] but rather that we could get a unanimous decision on a new right to physician-assisted death barely twenty years after the same court had ruled that no such right existed. The 2015 decision laid bare in my mind [and the minds of many other Canadians] that the courts aren’t interpreting the constitution so much as rendering political judgements based on a combination of their read of the public mood and the political preferences of the judges themselves.)

A more circumscribed judiciary—one that “stayed in its lane”—would restore greater balance to Canada’s civic architecture and lead to less use of the notwithstanding clause.

The second factor is a bit more surprising and difficult to explain. There has been less political reaction to its use. The costs have been lower than one might have expected.

One explanation is that governments have invoked S.33 on a judicious basis and only selected cases in which the political costs are minimal. If so, then it might be the case that the initial assumptions about the constraining role of politics have proven generally correct. We haven’t for instance seen Canadian governments use the notwithstanding clause to suspend judicial decisions on highly contentious issues like abortion or same-sex marriage or even physician-assisted death.

There are exceptions though such as Quebec’s Bill 21 where one would assume that the political costs of infringing certain rights would come with bigger costs. Governments should in theory be facing greater opposition from political opponents, stakeholder groups, and citizens themselves for their choices. That they’re not in practice risks undermining a key transmission mechanism embedded in the notwithstanding clause.

(Bill 21 is an interesting example where federal politicians have justified their silence on the grounds that there isn’t much that they can do from a legal standpoint to overturn the Quebec government’s policy. This position however neglects the influence that their political opposition may have on the public debate including for those within Quebec who may be hesitant to actively oppose the legislation.)

The upshot: instead of trying to curtail S.33 or get rid of it altogether, critics of the notwithstanding clause should agitate and organize against its use in order to raise its political costs. That would help to restore the balance that was struck in the 1982 Constitution and ensure that it continues to be used carefully and judiciously.

A taboo well and truly broken

By Dave Snow

Not long ago, the notwithstanding clause was taboo, a “paper tiger” outside Quebec that would spell doom for any government choosing to invoke it. Those days are long gone. If Saskatchewan’s proposed parental consent legislation passes, provinces will have introduced eight bills invoking the clause since 2017, and six of those will have received royal assent. Moreover, all four provincial governments that have introduced bills invoking section 33 have subsequently been re-elected to larger majorities than they had at dissolution.

As the political taboo has faded, scholarly debate over the clause has thrived. My research-in-progress has identified over 30 peer-reviewed pieces published on the notwithstanding clause since 2018. The quality is generally superb, with scholars both more and less favourable towards the clause engaging with thoughtful interpretations of political history. Unfortunately, this nuance often evaporates as soon as legal advocacy groups and experts are asked to comment on the clause in major media outlets. For instance, Saskatchewan’s proposed use has been denounced as the “nuclear option” that will “destroy the rights of students,” a “horrifying” idea that “undermines the very idea of rights protection for all.”

Whenever a premier proposes invoking the clause, legal commentary in major outlets takes on a familiar two-part refrain: first, the clause should only be used as a “very last resort” (an argument I have argued is unsupported by the text, history, and Supreme Court doctrine on section 33). Second, if the clause is invoked in response to a judicial decision, its use “in these circumstances” is “extremely concerning.” (I have yet to see a notwithstanding clause skeptic identify a circumstance in which its use wasn’t concerning.)

Collectively, this legal commentary takes on the character of “heads I win, tails you lose”: the notwithstanding clause should never be invoked before a judicial decision, and if it is invoked in response to one, that particular use is wrong. With the political taboo over the notwithstanding clause broken, we need to have more sophisticated conversations about the competing rights, interests, and values at stake whenever the clause is invoked. The scholarship has moved on—our media commentary should too.

An appropriate response

By Stéphane Sérafin

Saskatchewan’s use of S.33 was an appropriate response to the challenge brought in this case. While lawyers and judges in Canada have grown accustomed to deference from the legislatures on matters of social policy, there is no reason to think that such deference should be given in every case. Certainly, universal deference was not contemplated in our constitutional settlement, which wisely provided for the inclusion of S.33 alongside the grant of judicial review powers for enumerated rights. No particular difficulty arises from the prospective use of S.33 either, which has precedent in Quebec.

The case at hand furnishes a particularly good illustration of the reasons for which this constitutional settlement was reached in the first place. Although the dispute has been framed on both sides as a matter of “rights,” this framing reflects a political and legal culture that has become too centred on rights-based judicial review.

In reality, the core of the dispute pertains to whether parents ought to be given the full information necessary to fully discharge the duties that they generally assume towards their children. The groups behind the Charter challenge believe that schools should withhold information and perhaps even actively mislead parents on one specific subject, namely, on whether children have decided to change their names and genders on official school lists. It is hard to see how a Charter challenge, whether successful or not, could have contributed constructively to the public discussion that ought to take place on this issue.