Michael Schmidt greeting police and regulators during a raid on his farm in 2012.You knew when the Ontario Court of Appeal came back in a month with a decision in Michael Schmidt’s appeal of his conviction for violating the province’s dairy laws, it wouldn’t be good news. 


Judges and their courts don’t work that quickly….unless they see an opportunity to throw out an appeal and confirm a conviction.  When they want to set new precedents, they take their time, do all kinds of research, have extensive discussions among themselves. 


And when you read through the decision rendered by the three judges, you realize they likely had their minds made up before Schmidt’s lawyers concluded their arguments, in the process moving Canada past the U.S. as the most repressive country in the world on food rights (maybe with the exception of North Korea and Cuba).  

They pretty much rejected Schmidt’s arguments out of hand….except they may have inadvertently left one door open to him that could allow him years more of distributing raw milk to the members of his cow share.…and perhaps eventually, an affirmation of the rights of individuals to access raw milk in Ontario. 


At one point in the decision, the judges seem to ridicule Schmidt’s herd share arrangement. Says Judge Robert J. Sharpe, who wrote the opinion (to which the other two judges signed their agreement): “In my view, the cow-share arrangement is nothing more than a marketing and distribution scheme that is offered to the public at large by (Schmidt).”


However, earlier in the decision, Judge Sharpe made this observation about Schmidt’s members: “The cow-share member acquires a right of access to the milk produced by the appellant’s dairy farm, a right that is not derived from an ownership interest in any cow or cows.” 


The implication is clear: If the members had “an ownership interest” in the dairy, things would be different. 


Well, it turns out the members do have an ownership interest. They each invested on the order of $2,000 a few years back to acquire an actual ownership interest in Schmidt’s farm. The reason that fact didn’t come up as part of Schmidt’s argument in the case at hand is that that case preceded the change in ownership. Remember, this case has been ongoing since 1994, when the province issued a cease-and-desist order to prohibit Schmidt from distributing milk. 


So, the ball will be in Ontario’s court. Schmidt will appeal to the Canadian Supreme Court, but the chances of even being heard there are quite slim. Assuming the decision of the Ontario Court of Appeal holds up, then it will be up to provincial regulators to decide what to do next. 


One thing is clear: Schmidt is not backing off. While he “was hoping for some light” in the appeals decision, his path is clear. “If you have a vision and you are clear in that vision, you do not give up.” 


His prediction: “This negative decision will rally people in an unprecedented way.” 


In the climate of a growing clamor by people to access the foods of their choice, it will be up to Ontario officials to decide whether to pursue him again. “It remains to be seen if they want to get in another battle with me,” Schmidt said. 


Given the standard that the judges have established—the need for cow share owners to have an ownership interest in the dairy—then the regulators might decide that discretion is the better part of valor. 


“This decision does not change anything,” Schmidt told me. “What is important is that people will get their milk.”