Supreme Court rejects raw-milk dairyman’s appeal

An Ontario dairyman’s legal challenge of bans on the sale of unpasteurized milk has ended at the Supreme Court of Canada’s doormat.

The country’s top court on Thursday dismissed — without costs — the application from Durham, Ont. farmer Michael Schmidt, in which he sought leave to appeal previous losses at Ontario’s Court of Justice and Court of Appeal.

The Supreme Court, as per usual in such dismissals, didn’t elaborate on its decision, which upholds a $9,150 fine and a year’s probation for Schmidt on 13 charges relating to his “cow-share” operation through which he provided unpasteurized “raw” milk to paying area residents.

The conviction in 2011 at the Court of Justice overturned a 2010 ruling in Schmidt’s favour by a Newmarket, Ont. justice of the peace. The JP’s ruling involved 19 charges laid against Schmidt, which included selling and distributing unpasteurized milk and cheese, operating an unlicensed dairy and failure to obey a public health inspector’s order.

The JP, Paul Kowarsky, acquitted Schmidt on all charges and ruled that the cow-share program was not a violation of public health rules or milk marketing regulations.

The cow-share program’s members, Kowarksy said, aren’t the “vulnerable” people for whom the laws on pasteurization are written. Members of the cow-share scheme typically paid $300 each for an ownership stake of about 25 per cent of one of Schmidt’s dairy cows, entitling them to a supply of the raw milk.

Judge Peter Tetley of the Ontario Court of Justice in 2011 rejected the suggestion that Schmidt’s dairy herd was owned by the consuming shareholders, since none of them were involved in buying, selling or replacing any cows in the herd or had any say in management of the herd or distribution of the milk.

Tetley, writing the decision on an appeal filed by the provincial government, found the cow-share scheme “approximates membership in a ‘big box’ store that requires a fee to be paid in order to gain access to the products located therein.”

The consumption of raw milk isn’t prohibited, Tetley added, but given restrictions on sale and distribution of raw milk under provincial health laws, Schmidt “could not acquire a right to sell or distribute raw milk simply because others establish a right to acquire it.”

Lifestyle choices

Tetley’s ruling — which overturned 13 of Schmidt’s 19 acquittals — was then upheld in March this year at the provincial Court of Appeal. [Related story]

The appeal court wrote it has previously “resisted schemes that purport to create ‘private’ enclaves immune to the reach of public health legislation” and that the right to liberty “does not extend to an unconstrained right to transact business whenever one wishes.”

Lifestyle choices as to food or other substances consumed are not protected under Canada’s Charter of Rights and Freedoms, the appeal court added, contending that a society which extends Charter protection to “any and all such lifestyles” would be “ungovernable.”

Schmidt came to Canada from Germany in 1983 and ran his farm under Ontario’s supply-managed dairy quota system until 1992, after which he created a “lease-a-cow” program. He was charged in 1994 and convicted of violations under Ontario’s Health Protection and Promotion Act and Milk Act.

Schmidt then set up the “cow-share” program in 1996 with 10 members, expanding to about 150 members with shares in 24 cows by the time the 19 charges in question were laid against him in 2006.

One of Schmidt’s lawyers, lawyer Derek From of the Canadian Constitution Foundation, said in March the appeal court decision was “deeply disappointing.”

Government “should not be permitted to prevent individuals from choosing a means of promoting their own health when it causes no one any harm,” From said in a release in March.

“It is indeed a sad reality that the courts do not take the issue of individual liberty serious enough in order to afford informed consumers the freedom to choose.” –– AGCanada.com Network