Getting handy access to unpasteurized or “raw” milk in Ontario will take a legal challenge by its consumers, not by a dairyman whose cows provide it, a recent court ruling finds.
Judge Peter Tetley of the Ontario Court of Justice so ruled Sept. 28 in overturning most of last year’s acquittals on 19 charges against Durham, Ont. dairy farmer Michael Schmidt, a high-profile “food freedom” advocate who, on Sept. 29, announced he had launched a hunger strike in protest.
Tetley’s ruling reverses a January 2010 decision by a Newmarket, Ont. justice of the peace, after he heard an appeal from the Ontario government in April this year.
The local justice of the peace, Paul Kowarsky, had ruled in 2010 that Schmidt’s “cow-share” program to distribute raw milk to willing consumers was not a violation of public health rules or milk marketing regulations.
Kowarsky had also ruled that the cow-share program’s members are not the “vulnerable” people for whose protection the laws on pasteurization of milk are written.
Members of Schmidt’s cow-share scheme typically paid $300 each for an ownership stake of about 25 per cent of one of his dairy cows, entitling them to a supply of the raw milk.
Schmidt, Tetley wrote, appears to have viewed the dairy herd as being owned by the cow shareholders. However, the judge added, “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.”
Tetley said he didn’t see any evidence that cow shareholders were involved in buying, selling or replacing any cows in the herd, or that they had any say in the management of the herd or the distribution of the herd’s milk.
Tetley acknowledged affidavits from two program members, James McLaren and Eric Bryant, who claim “positive impact” on their health from consuming raw milk and raw milk-based products. Bryant also claimed consuming raw milk to be among his religious practices as a vegan devotee to the “Essene Gospel of Peace.”
Even if the two men claimed health benefits from the consumption of raw milk, Tetley wrote Sept. 28, their consumption of it “is not prohibited by law.”
Schmidt, on the other hand — given the restrictions on sale and distribution of raw milk under provincial health laws — “could not acquire a right to sell or distribute raw milk simply because others establish a right to acquire it.”
Exemption
It’s left open to raw milk consumers to mount their own court challenges of provincial health- and milk-related legislation if they find they can’t get a supply of raw milk anywhere else, Tetley wrote.
They would then have to show raw milk is “fundamental to their life, liberty or security of person in support of a request to be exempted from the existing legislation.”
Others “similarly affected” by Ontario’s Health Protection and Promotion Act (HPPA) and Milk Act, such as those who don’t happen to live on farms with dairy cows, “can also seek a constitutional exemption which, if successful, would in all likelihood, result in access to raw milk being accorded,” Tetley wrote.
That said, it “does not logically follow” that any raw milk consumer’s right would be infringed if Schmidt’s cow-share arrangement were to be found illegal, the judge wrote.
Given the expert evidence, Tetley wrote that in his view, it can’t be found that the province’s laws on raw milk are either “arbitrary or overly broad.”
While the law “may effectively discriminate against non-farm dwelling raw milk consumers,” that alone doesn’t constitute a violation of anyone’s Charter rights, Tetley wrote — particularly not the rights of Schmidt, who, “as a dairy farmer, is not a member of the restricted group.”
“Persecution”
Schmidt came to Canada from Germany in 1983 and ran his dairy farm under Ontario’s supply-managed quota system until 1992, after which he created a “lease-a-cow” program.
After he was charged in 1994 and convicted of violations under the HPPA and Milk Act, he set up the “cow-share” program in 1996 with 10 members, expanding to about 150 by the time new charges were laid against him in 2006.
Tetley did note in his ruling that the province didn’t step in with new charges in all that time even though Schmidt’s program appeared to operate in an “open and public manner.”
Schmidt’s release Monday stated he had gone on a hunger strike “in the face of continued persecution by the (Ontario and British Columbia) governments for his ‘crime’ of believing that informed consumers should be able to choose what they eat and drink.”
Schmidt, who reportedly held a similar strike for about a month in 2006, said his new protest has been joined by an Alberta farmer, two raw-milk advocates from Wisconsin and five others who didn’t want to be identified, plus a “large group in Toronto” taking part in “rotational fasting” in his support.
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