Dairy farmer Michael Schmidt toasts with his own unpasteurized milk after being found not guilty on 19 charges of distributing raw milk and raw milk products, Jan. 21, 2010.
A justice of the peace made critical legal mistakes when he found dairy farmer Michael Schmidt not guilty of distributing raw milk and cheeses last year, argued the Ontario government Wednesday in an appeal of the landmark case.
Ontario justice of the peace Paul Kowarsky erred in the January 2010 ruling when he threw out 19 charges related to the distribution, production and sale of raw milk against the Durham, Ont., farmer and cow-share operator, said Crown lawyer Alan Ryan.
It is illegal to market, sell, distribute or deliver unpasteurized milk or cream. Yet, it is legal to drink raw milk or use the raw milk to make cheese.
Canada is the only G8 country to ban the sale of these products, which some argue has greater health benefits than the available pasteurized milk.
The provincial government, along with the local Grey-Bruce Health Unit, told Ontario Justice Peter Tetley that Mr. Kowarsky’s decision is not based on legal reasoning, partly because the justice, who is originally from South Africa, did not have the required background because he was never a lawyer in Canada.
In the ruling, Mr. Kowarsky upheld the two pieces of legislation Mr. Schmidt was charged under in 2006 — the Health Protection and Promotion Act and the Milk Act — but still found the farmer not guilty of the offences because he only gave access to the raw milk to the joint owners of the cows and not the public at large.
These cow-share members were aware that the milk was unpasteurized.
About 150 families purchased $300 memberships from Schmidt for the partial shares in 26 cows he keeps at Glencolton Farms, located about two and half hours northwest of Toronto.
Mr. Schmidt’s lawyer, Karen Selick of the Canadian Constitution Foundation, countered by raising two constitutional arguments during the daylong hearing.
She argued her client was being denied his right to liberty because he’s not allowed to engage in his “life’s work” of biodynamic farming and health promotion. She also said denying Canadians their right to choose the food they want to eat, for health reasons, also contravenes with quality rights under the Canadian Charter of Rights of Freedoms.
“Individuals have a right to decide what to do with their bodies and what goes in their bodies,” she said. “So by forbidding people from getting raw milk, they are impairing some people’s health. Some people do better on raw milk.”
Mr. Selick called these charges based on a “crime that nobody complained about” and that “victims”were all willing knowing participants.
Mr. Schmidt has been crusading for the legalization of raw milk products through the Ontario court system for nearly 20 years.
Standing outside the courthouse drinking a glass of unpasteurized milk and eating a piece of smoked mozzarella raw milk cheese, he said he’s willing to fight the issue all the way to the Supreme Court of Canada.
“Do they really think I’m going to go away after fighting this for 17 years?” said Mr. Schmidt, who is helping other farmers currently involved in similar court cases in British Columbia and Alberta.
Since last year’s ruling, cow-share operations have quietly grown in British Columbia, Saskatchewan, Alberta, Prince Edward Island and Nova Scotia. Many of the businesses rely on word of mouth.
Mr. Schmidt has also started an accreditation course for the estimated 50 cow-share businesses across the country, in hopes of bringing in regulation in the commonly underground industry.
He said he had hoped instead of fighting him on these charges, the government would’ve re-examined the current legislation to see how it can be changed to give consumers more choice over their food.
“The government is always looking for a breaking point. The breaking point is when the people who fight for something go bankrupt or don’t have the nerve to anymore, after so many years, and stop, so the whole issue goes away,” he said. “I’m looking for the tipping point, ‘Are there enough people waking up to the reality that they have lost their choice, freedom to choose raw milk?’”