As I read through Ontario Judge Shaun O’Brien’s stinging rejection of raw milk in any way, shape, or form, I found myself singing the old Carole King rock classic, “It’s too late baby, yeah it’s too late….”

Raw dairy farmer Michael Schmidt greets police raiding his Ontario farm in 2017, one of several raids over the last 25-plus years.

I couldn’t help but conclude that the time has long passed for Canada to ever come to even limited acceptance of raw dairy. It’s as if Canadians have been consuming pasteurized dairy exclusively for so long that they can’t do anything but exclaim “Yuck!” when presented with the possibility of allowing raw milk consumption on even the most limited legal basis, like say via herdshare or on-farm sales.

Judge O’Brien issued her 26-page dismissal of the claims by 21 Canadian raw milk supporters—heard during a week-long trial late last year– in mid-February, but neither side has referred to the ruling, apparently because the appeal period is still open. Presumably the raw dairy plaintiffs will appeal, but it’s difficult to imagine any deviation from the ruling, so complete and absolute is its rejection of raw dairy as a legitimate food option.  

Back in 2016, raw dairy farmer Michael Schmidt and a couple dozen of his closest supporters came up with what they thought was a legal opening to overturn Canada’s long-standing ban on the distribution and sale of raw milk: they would claim they had a right to access raw milk as a matter of conscience and religion. An Ontario court agreed to hear the case and over the next four years, opponents and proponents of raw milk provided testimony and submitted studies to bolster their respective claims—something in excess of 20,000 pages. (In an effort to reduce the case’s emotional content, Schmidt kept himself out of the case officially; his wife is one of the plaintiffs.)

In her opinion, the closest O’Brien came to accepting any argument the plaintiffs put forward was when she accepted “that the Applicants have a sincere belief in the health benefits of raw milk” and “sincerely believe in their right to choose what they consume.” Unfortunately, she added, “these are not the types of beliefs protected by the Charter.” 

Oh, yes, there was one other point the judge relented on: She refused to accept a defendant motion to exclude the evidence presented by the plaintiffs’ three raw dairy experts. But even here, her refusal was less than full: “I find the evidence of these three (raw dairy) experts to be admissible.  However, I do have concerns about the weight to be attributed to this evidence.  As will be evident through the course of my analysis, I accord it significantly less weight than the evidence of the experts retained by the Respondents.” I couldn’t help but think about the original U.S. Constitution approved in 1787, which made black slaves equal to three-fifths of whites. Is that what the judge ruled here, that the raw milk experts were a fraction as credible as the raw milk opponents?

I’m not even sure she gave the raw dairy experts three-fifths credence, because she completely discounted an important Canadian study indicating that raw milk has become significantly less hazardous in recent years. Here is how the judge put it: “The Applicants rely heavily on a study published in 2018 by Joanne Whitehead and Bryony Lake (the “Whitehead and Lake study”). The Whitehead and Lake study was put into evidence by Ms. (Margaret) Coleman. According to Ms. Coleman, the study determined that legalizing access to raw milk in more states of the United States resulted in lower rates of outbreaks, particularly when controlling for population growth and consumption. Ms. Coleman described the study as ‘authoritative, based on the best available data.’ Although I determined above that Ms. Coleman’s evidence was admissible, here, her evidence cannot be given weight in the face of the expertise of the Respondents’ experts.” Coleman is an expert in risk assessment, with masters degrees in biology, biochemistry, and medical microbiology.

So, who is one of the expert witnesses the judge considered much more credible? None other than the U.S. Food and Drug Administration’s raw-milk-ultra-rejectionist supreme,  John Sheehan. The judge pointed to Sheehan’s testimony that he was so disturbed by the Whitehead-Lake study that he pressed the journal to disown it. “Mr. Sheehan’s view is that the issuance of the letter by the FDA was ‘quite extraordinary,’ a step he had never seen the FDA previously take,” the judge wrote, in amazement.  If the judge had bothered to check out Sheehan’s reputation just a little bit, she would have discovered that he has total contempt for anyone even remotely inclined toward favoring raw milk, to the extent he canceled out on a major professional presentation at the last minute  in 2007 rather than be in the same room with a very few individuals known to be sympathetic to raw milk consumption, including Michael Schmidt.

The judge went through a lengthy analysis to argue that in any place around the world where raw milk is legal, there are at least a few illnesses. When she came to an exception–the raw milk situation in Germany, which has such stringent regulations that no illnesses have been presented—she turned it against the raw milk plaintiffs, and showed clearly the lingering bitterness Canadian authorities feel about Michael Schmidt’s 25-plus years of challenging Canada’s raw dairy ban. “Germany’s situation is unique. The Voszugsmilch system is an expensive and complicated system involving elaborate on-farm testing and veterinary interventions. Only 14 producers in a country of more than 80 million people operate under this system. More importantly, the system requires a willingness to comply with stringent regulatory requirements, an attitude that has not been seen among raw milk producers in Ontario, who have been willing to contravene court orders. Specifically, the first legal proceeding concerning Glencolton Farms was commenced in 1994 when Ms. Vander Hout’s spouse, Mr. Schmidt, was the subject of an HPPA order to cease processing raw milk. As stated by the AGO: ‘This marks more than a quarter century of litigation concerning many of the same people, the same farm, and the same legal issues.’ In spite of the injunctions granted in Downing in 2018, the evidence is that Glencolton Farm has continued to make their raw milk available to members of the public in the years since then.” Was the judge really suggesting that if Michael Schmidt had “behaved” himself, she might have been more favorably inclined toward something like the German raw milk system for Canada? Really!

Judge O’Brien rejected more widespread use of testing in places like the U.S. to reduce the risk of raw milk to be “unreliable.” She rejected large-scale European studies indicating that raw milk reduces asthma and allergies in children to show “an association” but no “causal connection.”  In the end, though, the judge showed herself to be an absolutist on raw dairy—even a single fatality means it’s too risky for any public consumption.  “Some of the Applicants have provided evidence on this Application that, if permitted, they would feed raw milk to their children. I do not consider the death of even one child to be a de minimis problem [insignificant level of risk], particularly where it can be easily prevented through the straightforward, low-cost, and effective step of pasteurization. “

And it’s too late, baby now, it’s too late
Though we really did try to make it
Somethin’ inside has died, and I can’t hide
And I just can’t fake it, oh, no, no