While expressing sympathy for the arguments of raw milk drinkers and producers, an Ontario appeals judge has nonetheless reversed dairy farmer Michael Schmidt’s exoneration nearly two years ago on charges of violating the province’s dairy laws. It’s even conceivable, the judge said, that Schmidt could be jailed.
In the judge’s opinion, the legislature made a rational decision to ban the sale and distribution of raw milk, even if it might have discriminated against consumers who want raw milk. .
In his 77-page decision, Judge P.D. Tetley stated: “The balancing of the competing interests of preserving and maintaining public health on the one hand against the resultant limitations on the right to choose what we eat, on the other is… a matter for the legislature. The restrictions imposed on certain residents of Ontario, as far as the consumption, distribution and purchase of raw milk is concerned, are within the authorized ambit or scope of legislative authority. In view of the evidence presented at trial it cannot be concluded the law, as it presently stands, is overbroad from a constitutional perspective or too sweeping in its breadth. While it may effectively discriminate against non-farm dwelling raw milk consumers, that fact in itself does not necessarily render the law non-Charter compliant, particularly in relation to the Respondent who, as a dairy farmer, is not a member of the restricted group.”
He said that Judge Paul Kowarsky, who originally ruled in favor of Schmidt by acquitting him of each of 19 counts of violating Ontario dairy laws, in January 2010, made an “error of statutory interpretation (which) led to a misapprehension of the evidence presented at trial as that evidence relates to the
substance of the charges in issue.” Justice Tetley agreed to dismiss six counts for one technical reason or another, but affirmed 13 guilty counts.
One big sticking point for Justice Tetley appeared to be that the structure of Schmidt’s cowshare program didn’t provide true equity ownership in the cows. The justice stated: “Although some uncertainty exists in the trial record as to whether the price paid by the consumer was for a specific cow within the herd or access to a portion of the milk production of a particular cow, the fact there were 150 cow-share members and only 24 cows suggests the agreement permitted access to the milk itself. This conclusion is confirmed at page nine of the publication ‘The Glencolton Farm Cow-Share Members’ Handbook’ which every cow-share member received along with a milk share certificate. The price to purchase a single share was
three hundred dollars or approximately one quarter of the price of a dairy cow. No formal contract of purchase and sale was executed by either vendor or purchaser. No corporate structure was created allowing the interested consumer to receive an actual share certificate as an equity owner in the corporation that included the herd as one of its assets. It appears that legal title to the cows remained with the Respondent as the owner of Glencolton Farm. Although the trial record serves to confirm that the Respondent viewed the dairy herd as being owned by the various cow-share certificate holders, in reality, the cow-share arrangement approximates membership in a ‘big box’ store that requires a fee to be paid in order to gain access to the products located therein. There is no evidence the cow-share holders were involved in the purchase of the cows in the herd, their subsequent sale or replacement, or that they had any say in the management of the herd or the distribution of the resultant milk product. The membership handbook indicates that the cow-share members fund the services of the Respondent and his wife to tend the cows and look after the milk production. The members are directed to pick up the milk at the farm or from the blue bus with one cow-share indicated as entitling the share holder to a yearly total of approximately 750 litres of unpasteurized milk, cheese, cream or other dairy products.”
Lacking evidence of what he considered to be direct ownership of the cows, the justice repeatedly deferred to legislative authority, “The authorities direct that it is a matter for the legislature to delineate the parameters or define the scope of the regulatory scheme relating to the consumption, distribution and sale of raw milk and raw milk products, provided there is a sufficient body of scientific evidence to give rise to a “reasoned apprehension of harm to permit the legislature to act.”
At times, the judge seemed almost apologetic, even suggesting at one point that the fact that Ontario citizens have a right to consume raw milk does not allow him to overrule the legislature so as to provide Schmidt the right to distribute it.
“Even if one were to accept the testimony proffered in support of the purported health benefits Mr. Bryant and Mr. McLaren associated with the consumption of raw milk, the right of these individuals to consume raw milk is not prohibited by law. Given the expressed restriction on the sale and distribution of raw milk and raw milk products…the Respondent (Schmidt) could not acquire a right to sell or distribute raw milk simply because others establish a right to acquire it.”
Justice Tetley indicated that while Schmidt could potentially be jailed, the likelihood was remote. “As noted, the Respondent faces a monetary penalty on conviction for the offences alleged. The prospect of a jail term arising in this matter is exceedingly remote. The Respondent would have to default on payment of the levied fine(s) and fail to comply with any of the remedial payment arrangements that are mandated by the Provincial Offences Act on default of payment of the fine. It is only after all other alternatives have been exhausted that a period of incarceration may be contemplated.”
Michael Schmidt’s response? “”If anybody thinks that this the end of the battle, no this is the beginning, this is a call to to active resistance, this is not about me, this is about our fundamental rights. Kowarsky had the guts to recognize the need for justice, Tetley was over his head. Friends no despair we know where we have to go and what we have to do. Resist, resist, resist with love.” His legal representatives indicated that a further appeal was in order.