Whisky, Rum and Spirits

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Our Constitutional Fight


Help Toronto Distillery Co. fight for our collective constitutional rights!
 Specifically Section 53 of the Constitution, which protects Canadians from having to pay taxes based on the whim of an official. Right now, Ontario doesn’t have a spirits tax, and instead the LCBO is imposing its markup – which is designed to cover their own overhead – on our retail store. No legislators ever voted for this tax, making it unconstitutional. We’ll post our legal filings here, and at the bottom of this page we’re accepting contributions from those who’d like to help but aren’t in a position to swing by our retail store! For everyone who contributes $10, we’ll add your name to our Constitutional Defenders wall to be hung proudly in our distillery.

  • 2015-07-23: filed our Notice of Application + Supporting Affidavit (where we tell our story – PDF, 1.8MB)
  • 2015-07-24: story written at Ben’s Beer Blog
  • 2015-07-27: Aaron Binder, Ontario is in the Middle of a Booze Revolution, Huffington Post
  • 2015-07-27: Marco Chown Oved, Distillery Sues LCBO over its Markup, Toronto Star
  • 2015-07-27: filed Notice of Constitutional Question (PDF)
  • 2015-07-28: Toronto Distillery Company sues LCBO over markup, Metro News Toronto
  • 2015-07-28: Chuck speaks with Jerry Agar on NEWSTALK 1010, July 28 Jerry Agar Show
  • 2015-07-29: We have 36 names so far for our Constitutional Defenders Wall! <3
  • 2015-07-31: Notice of Appearance from Alcohol & Gaming Commission (PDF)
  • 2015-08-05: Notice of Appearance from LCBO (PDF)
  • 2015-08-05: Notice of Appearance from Ontario Attorney General (PDF)
  • 2015-08-17: Order granting leave to Charles Benoit to represent Toronto Distillery Co. in this proceeding. (PDF)
  • 2015-09-14: Order in Civil Practice Court setting litigation schedule and hearing date of January 21st, 2016. (PDF)
  • 2015-10-02: Affidavit from AGCO (PDF, exhibits not included)
  • 2015-10-02: Affidavit from LCBO (PDF, exhibits not included)
  • 2015-11-20: We filed out Factum (PDF, 885kb), which details our legal arguments as to why the Mark-up payments we make to the LCBO are an unconstitutional tax because they did not originate in legislation.
  • 2015-12-21: Factum of the AGCO (PDF)
  • 2015-12-21: Factum of the LCBO (PDF)
  • 2015-12-21: Factum of the Attorney General of Ontario (PDF)
  • 2015-12-22: Notice of Apperance (PDF, our good high school friend Lauchlin MacEachern is now our lawyer!)
  • 2016-01-12: Reply Factum of Toronto Distillery Co. (PDF)
  • 2016-01-20: Peter Kuitenbrouwer, Toronto Distillery Co. challenges Ontario rules that force it to sell liquor at markup for LCBO, National Post
  • 2016-01-21: Hearing in Courtroom 6-3 at 361 University Ave. Scheduled all day beginning at 10am.
  • 2016-01-22: Peter Kuitenbrouwer, Toronto Distillery Co. challenge has ‘ramifications across the province,’ judge says, National Post
  • 2016-01-28: Letter from Tim Hudak, MPP to The Hon. Charles Sousa, MPP
  • 2016-02-25: (Victory?!) Government of Ontario 2016 Budget calls for legislated spirits tax to replace LCBO mark-up system.
  • 2016-04-01: Justice Akhtar’s Reasons for Judgment (the trial decision – PDF, 1.38MB)
  • 2016-04-02: Statement by Toronto Distillery Co.: Losing a Battle, Winning the War?
  • Next: Notice of Appeal


What the Supreme Court has said just back in 2008 about Section 53 of the Constitution:

This principle is found in s. 53 of the Constitution Act, 1867, which mandates that bills imposing any tax shall originate in the House of Commons.  In Eurig Estate (Re), [1998] 2 S.C.R. 565, Major J. explained the rationale underlying s. 53, at paras. 30-32:

The provision codifies the principle of no taxation without representation, by requiring any bill that imposes a tax to originate with the legislature. My interpretation of s. 53 does not prohibit Parliament or the legislatures from vesting any control over the details and mechanism of taxation in statutory delegates such as the Lieutenant Governor in Council. Rather, it prohibits not only the Senate, but also any other body other than the directly elected legislature, from imposing a tax on its own accord.

In our system of responsible government, the Lieutenant Governor in Council cannot impose a new tax ab initio without the authorization of the legislature. As Audette J. succinctly stated in The King v. National Fish Co., [1931] Ex. C.R. 75, at p. 83, “[t]he Governor in Council has no power, proprio vigore, to impose taxes unless under authority specifically delegated to it by Statute. The power of taxation is exclusively in Parliament.”

The basic purpose of s. 53 is to constitutionalize the principle that taxation powers cannot arise incidentally in delegated legislation. In so doing, it ensures parliamentary control over, and accountability for, taxation. As E. A. Driedger stated in “Money Bills and the Senate” (1968), 3Ottawa L. Rev. 25, at p. 41:

Through the centuries, the principle was maintained that taxation required representation and consent. The only body in Canada that meets this test is the Commons. The elected representatives of the people sit in the Commons, and not in the Senate, and, consistently with history and tradition, they may well insist that they alone have the right to decide to the last cent what money is to be granted and what taxes are to be imposed.


Organic Applejack


Our Organic Applejack begins with the ripe crispness of freshly distilled apple cider from apples grown by Avalon Orchards in Innisfil, Ontario. After distilling Avalon’s cider, we smooth it out with pure organic neutral spirit, and then age it in charred oak whisky barrels to bring about a rich apple spirit of exceptional character. Unlike many apple beverages, no sugar or flavouring agents are added to this spirit. To highlight this fact, we worked with Andrew Roberts of FoodPros.ca to deploy the first spirit in the market to be packaged with a Nutrition Facts panel, which evidences that this is a straight spirit with nothing added but distilled water. The label features scenes from Keele & Dundas in the Junction and Avalon Orchard in Innisfil. Label Design by Charles Benoit, Illustration by Ellen McGrath, Photo Credit Andrew Illingworth.
750mL / 40% alc./vol. Enjoy!


Organic Ontario Single-Grain Whiskies (unaged)

When whisky comes fresh off the still, it’s clear. But don’t mistake it for a vodka or a gin, as the distillation processes are night and day. With whisky, the aim is to capture as much of the flavour of the grain as possible, whereas for neutral spirit (base for vodka + gin), you want ‘pure’ alcohol; the more separation between the alcohol molecules and the grain molecules, the better the neutral spirit.

When you’ve got a batch of fermented grain (called a “wash”, about 7% alc./vol.), and you heat it, the alcohol starts boiling off around 78°C – but it’s not a clean separation, the alcohol that vaporizes off the wash is bringing a lot of the grain with it, called “congeners” -some good, some not good. The copper in the column reacts out some of the unpleasant congeners (sulfites) as the alcohol vapour floats its way up through the still. When it re-condenses into a liquid distillate at the top of the still, the first distillate to trickle out in a whisky run will have an ABV in the high 80s. The ABV will slowly lower over the ten-hour long distillation run. This “run” (slow trickle of whisky off the still) has three phases: heads, hearts, and tails. We only want to bottle the hearts phase (starting around 80% alc./vol.) – segregating out the hearts distillate is the central aspect of the distiller’s art. This is what whisky is all about. To make a neutral spirit, conversely, you distill and re-distill until you can condense a distillate that comes out at least 95% alc./vol. You want to lose all traces of the grain. The opposite of whisky making.

If you know you’re going to be barreling your whisky for a long time, you can choose to increase your output (and profit) by making a wider and deeper hearts cut – i.e., allocating a greater percentage of the ten-hour run into the “hearts” pot because the oak will help relieve some of the unpleasant congeners you collected from the wide hearts cut. While simultaneously absorbing some bad congeners, the oak also introduces its own flavours into the distillate (vanilla, oakiness). But inside a ten-hour distillate run is some extremely flavourful whisky that is a pure expression of the grain it was distilled from, and with careful, narrow cuts, a tremendous sipping whisky. Unaged whisky is a must for whisky enthusiasts who want to understand what various grains bring to the drink on their own merits, and to explore what effects a grain’s terroir has on a whisky.


First Barrels – Straight Canadian Whisky


First Barrels – Straight Canadian Whisky SOLD OUT!

$49.95, 750mL, 42% alc./vol. (84 proof). Only 1,452 bottles exist! Rare historic artifact of the rebirth of whisky distilling in one of the historically great whisky cities of the world. Order online and you’ll get e-mailed a receipt with a unique order number. You can pickup your order anytime during retail hours (Fri 5-8pm, Sat 12-6pm, Sun 1-5pm) at our distillery in the Junction by St. Clair & Keele, or select shipping anywhere in Ontario.

“remarkably smooth and complex … this whiskey is more than impressive” – Toronto Life

100% GRAIN TO GLASS. 100% ORGANIC. 100% STRAIGHT – No Additives of Any Kind.


PART ONE – THE HARVEST: First Barrels’ story began in 2012, just north of Toronto, with organic rye, organic wheat, and organic corn grown and harvested in the Humber River headlands of York County at the farms of Mike & Bonnie O’Hara (corn, wheat) and Keith and Sharon Sheardown (rye).

The soft winter wheat and rye are planted in the autumn and hibernate during the rugged central Ontario winter. They wake up in April and just a few weeks later the corn is planted. All are grown at the speed of nature, without the use of accelerants, so called “chemical crutches” which break the plant’s equilibrium, artificially speeding up cellular mitosis. All reflect the rich Ontario terroir the Humber Watershed, bounded by the glacially formed Oak Ridges Moraine.

PART TWO – THE MILL:The rye, wheat, and corn still need to be milled before they can be mashed and fermented. Many people are now aware of the importance of cooking with whole-grain flour, but are not aware that even grains branded as whole when milled by industrial-scale roller mills are completely broken down before subsequent reconstruction.

The heat generated in this process destroys important flavour components provided by nature. Fortunately, First Barrels grains’ next stop from the farm was K2 Mill in Beeton, Ont. – just fifteen miles from the fields. K2 is an organic mill owned and operated by a third generation miller, Mark Hayhoe. Instead of being passed through various chambers for hours on end, destroyed and rebuilt, Mark’s grain is milled in just six seconds, keeping all components of the kernal together in the flour. The importance of this less destructive, whole-grain milling is well put in Mark’s Articles of Fermentation: “Life began with unicellular beings. These cells accessed energy through respiration, fermentation, and combustion. Multi-cellular life followed and life evolved comprehensively. All cells still access energy the same way. It is the origin and quality of the energy source that determines the biological health of the cell. As alive cells, solo or existing as an orchestra, we are what we burn.”

PART THREE – THE DISTILLERY: Fresh from the mill, to one hour’s drive south, we receive Mark’s organic whole-grain flour in 20kg brown paper bags at our distillery in the Junction. In our 500L artisan hybrid pot still, we begin by slowly mixing in 100kg of flour with 400L of City of Toronto carbon filtered water, creating 500L of “mash”. This 500L of mash is heated, with 195mL of non-GMO starch-converting enzymes added to release the sugars hidden inside. Rye mash gets quite viscous, wheat and corn much less so. Once cooled, the mash ferments on site for six days, with yeast converting the sugar to alcohol. After fermentation, the mash – now called the “wash”, will be between 7-9% alcohol by volume, and is ready to be poured back into our still.

“Distilling” begins here: because alcohol has a lower boiling point than water, it’ll vaporize off the wash as the wash heats up. Thankfully it’s not a precise separation, so the alcohol molecules bring along the grain’s essence for the ride through the still. As the alcohol vapor climbs up our still, it comes into contact with a series of copper plates, which help smooth it out by absorbing some of the less pleasant congeners. Finally as it rounds the bend at the top, cold water is circulated so that the alcohol vapor re-condenses into a clear liquid – the birth of the whisky. When this whisky ‘comes into being’ and starts to come out of the still, it’ll have a very high proof, upwards of 80% abv. The first phase of the run-off is referred to as the “heads”, then the hearts, then the tails. The “hearts” are the most flavorful, with the highest concentration of whisky congeners, and making this ‘cut’ is the height of the distiller’s art.

Unaged whisky from rye is spicy and crisp (think campfire), wheat is floral and aromatic, and corn is sweet and buttery.

PART FOUR – THE BARRELS: Once we have our whisky hearts, we add a bit of distilled water to proof them down to 62.5% alc./vol., commonly known as “barrel/cask strength”, the strength that distillers have long regarded as optimal for interaction with oak. We experimented with barrels ranging from 10L to 110L, all “new char”, meaning they were brand new barrels that had been freshly charred on the inside. (Fresh char is a requirement for bourbon, with the other requirements being a mash bill of 50% corn and distillation in the United States.) We like fresh char because it gives the whisky rich and sweet caramel, vanilla, and oak. Approximately three-quarters of First Barrels was aged in Canadian Oak barrels between 90 and 110L in size, from Carriage House Cooperage and Canada Oak barrels. The remaining quarter was aged in American Oak barrels. Each barrel was filled with a single-grain whisky: either rye, wheat, or corn.

What was really difficult was balancing the introduction of the fresh char without letting it override the character of the grain. Rye holds up very well when it comes into contact with the oak, retaining its full character. Even if only a small amount of rye is used (and indeed, historically Canadian Whiskies were generally no more than 5% rye), the rye makes itself known. Corn does as well, with wheat perhaps being the most delicate. Our whiskies on the two-year end of the ageing process were heavy on the caramel and oak, but lighter on the grain. Younger barrels brought the grain’s essence further forward. Ultimately, our First Barrels were launched with a mash bill of 40% organic rye, 40% organic wheat, and 20% organic corn, with the old barrel being twenty-six months old and the youngest two months old. This is plainly stated right on the front label – no tricks here. In the U.S., straight means 2-years in new char, our preference for the Canadian standard would be aged in new char + an age statement to give the distiller more freedom to balance out grain and oak and give the consumer more information.

PART FIVE – NOTHING. THAT’S IT. In the United States, if you see the word “Straight” before a whisky, you have a guarantee that 100% of the contents of your bottle of whisky was distilled at a proof low enough to capture the essence of the grain, and that zero artificial flavours or colours were used, nor any glycerin, a common additive to mask harsh liquor.

We don’t have anything like this in Canada, mostly because, regrettably, our big legacy distilleries adopted the practice of bottling “compounded whisky”. This was successfully resisted in the United States (with the resistance led by the bourbon distillers), which is why compounded whisky must be labeled as “blended whisky” in the USA. In Canada, our whisky standards don’t control for the proof of the distillate. So you can fill a barrel with vodka, add some artificial flavouring and colouring to doctor-it-up, and in three years call it Canadian Whisky. This is a national shame. And it gets worse! Up to 9.09% of the bottle can be something that’s not whisky at all, just pure flavoring! As Jason Wilson explains in the Washington Post: “Part of the problem is how Canadian whisky is made. Unlike with bourbon, the base spirit is often distilled at a very high 180 proof, which creates a more neutral spirit that lacks flavor. It’s then blended with smaller amounts of lower-proof whiskies, and the distillers are allowed to add 9.09 percent of just about anything: rum, brandy, neutral spirits, caramel, or other types of flavoring.” This is why we are emphasizing the straight character of our whisky, and have adopted this No 9.09 logo on the back of the bottle to raise awareness. We also reject the arbitrary three-year ageing rule, which doesn’t even control for new-char or a barrel that’s been used time and again (a totally different experience). We do support industry certification marks that act as guides to customers, like straight bourbon being 50% corn and aged for two years in new char (bourbon on its own has no minimum ageing requirement), but we’re steadfastly against legislated prohibitions that actually ban some of the best whiskies in the world from legally being sold in Canada! That the “3-year rule” serves as window dressing for a thoroughly compromised, disdainful anti-consumer standard which allows for all manners of artificial additives makes the rule beneath contempt, and one we are happy to flip the bird to.

CONCLUSION. We’re proud of our First Barrels Straight Canadian Whisky, and we hope you enjoy it too. To quote Mark Hayhoe in his Articles of Fermentation, “The chemistry of life is the romance of biology – le terroir du vie. The importance of eating what has been growing around us suddenly begins to make a lot of sense.” Going forward, expect signature whiskies with varying mash bills, as the TDC team continues to explore all that Ontario grains have to offer.

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