The time has come for Canada to begin allowing the sale of raw milk to those ready to risk consuming it, and in the process put an end to “a peculiar form of Canadian exceptionalism,” a lawyer argued in an Ontario court Monday .
It was the first day of hearings into a case that could lead Canada to finally follow the lead of the rest of the world in legalizing raw milk sales. The lawyer, Jonathan Nehmentallah, represents the owners of two Ontario raw dairies, as well as a handful of their raw milk consumers, who filed suit in early 2018 seeking to legalize the sale of raw milk to Ontario residents after decades of a ban on all sales.
As part of his argument, Nehmentallah pointed out that 43 American states allow raw milk sales in some form (direct from farms, via herdshares, via retail), and if you include states that allow pet food sales, you get to 49 states. Moreover, raw milk is available in nearly all European Union states.
The Ontario case is a continuation of a legal saga that began 26 years ago with a raid on the raw dairy farm owned by Michael Schmidt, then a young and idealistic émigré from Germany committed to biodynamic farming methods. Likely it is the last chapter of the saga, one that has seen multiple raids on Schmidt’s dairy, several trials, lengthy court appeals, hunger strikes and even the jailing of Schmidt.
Three years ago, it appeared as if Schmidt was at a dead end legally, when he was threatened with extended jail time following legal setbacks in his long crusade to legalize raw milk sales in Ontario and elsewhere in Canada. But he was convinced by supporters and legal experts that he should pursue a new path to legalization—one that involved seeking an exemption to the raw milk ban based on newly published scientific evidence about raw milk’s benefits, and also on the legal argument that Canadians have the right under the Canadian Charter to consume raw milk as a matter of conscience if they believe it is essential to maintaining good health.
Ironically, Schmidt is not technically part of this latest legal push—it is being pursued by his wife, Elisa Vander Hout, along with the owner of a second Ontario dairy and a group of some 20 long-time raw milk drinkers. But in a Facebook post Monday, Schmidt stated: “There are 21 people who are challenging the law prohibiting the distribution of raw milk. They firmly believe that this law is discriminatory and goes against the Canadian Constitution and the Charter of Rights and Freedoms. Please understand that this case is not only of the essence to milk-drinkers, but to anyone who wants to be free to make their own (informed) choices about what to eat, drink and inject into their own bodies.”
Further background about the court initiative is available at a GoFundMe page set up at the start of the case.
Despite the fact that much of the rest of the Western world now accepts raw milk, Canada isn’t likely to slide easily into a permissive raw milk era. Even before the trial got under way Monday, some 18,000 pages of expert testimony, research data, and other background, pro and con on raw milk, has been accumulated over the past nearly three years since the case was filed in Ontario Superior Court. A good deal of the initial arguments by lawyers Monday centered on the professional qualifications of witnesses who have submitted affidavits or given depositions in the case.
Government and dairy industry lawyers questioned the qualifications of three witnesses who gave depositions in favor of raw milk: Pete Kennedy, a lawyer for the Weston A. Price Foundation; Peggy Coleman, an expert in risk assessment; and Nadine Ijaz, a Canadian expert in alternative medicine regulation. At the same time, these lawyers played up the qualifications of two American witnesses who have provided testimony questioning raw milk’s safety: John Sheehan, who oversees dairy industry regulation for the U.S. Food and Drug Administration; and Michele Jay-Russell, a food safety expert at the University of California, Davis.
The judge in the case, Shaun O’Brien, indicated that the criticisms of the raw milk proponents registered with her, when she questioned the plaintiff lawyer to explain more fully than he seemed prepared to as to what especially qualified these individuals.
The judge didn’t react immediately to the opening arguments by the plaintiff lawyer Nehmentallah that “the newest scientific evidence” suggests three health benefits from raw milk: that it protects children from hay fever, asthma, and other auto-immune reactions; that it contains probiotic and prebiotics that help strengthen the microbiome; and that it provides a “protective effect on infants” for mothers who drink it.
The case can be viewed via live feed online each day this week, from 10am-4pm Eastern.
Tuesday, November 17, 2020: https://youtu.be/lGwVYdS_1Fs
Wednesday, November 18, 2020: https://youtu.be/jQiP2E0YUmQ
Thursday, November 19, 2020: https://youtu.be/pDxX4swkISA
Friday, November 20, 2020: https://youtu.be/4YXGKgi7weg