in a courtroom listening to someone read 40 pages of closely-written
legal text is not something that I would ordinarily describe as a
treat, but it was a genuine privilege to be in court last Thursday with
dairy farmer Michael Schmidt to hear his acquittal on 19 charges
relating to the distribution of raw milk.
there was Mr. Schmidt himself. He conclusively
disproved the old saying that a man who represents himself in court has
a fool for a client. At
his trial a year earlier, he had acted as his own
counsel--cross-examining prosecution witnesses, calling his own experts
to give evidence, and arguing complicated points of law. Arrayed against him
were no fewer than five lawyers from various branches of the Ontario
government, yet Mr. Schmidt emerged victorious.
the other star of the show was Justice of the Peace Paul Kowarsky,
author of a carefully thought-out and painstakingly crafted decision. His Worship noted
candidly that “judges may engage in private research” and he had
clearly done so. He
quoted extensively from case precedents and legal textbooks on
statutory interpretation, ultimately concluding that Mr. Schmidt had
“done everything reasonably possible to…[remain] within the confines
and the spirit of the legislation.” Since the charges
against Mr. Schmidt fell into the category called “strict liability”
offences, his diligent efforts to remain within the law constituted a
like all Canadian provinces, outlaws the sale of unpasteurized milk,
but not its consumption. Mr.
Schmidt had organized a “cow-share” program which allowed non-farm
families to own a share of a cow and therefore a share of the milk. No
selling or marketing was involved. Cow-share members
were knowledgeable individuals engaging in a private contract for
cow-tending services, not vulnerable members of the public at large
whom the law is designed to protect.
JP Kowarsky fully acquitted Mr. Schmidt, it became unnecessary to
tackle the thornier legal issue lurking in the background. Mr. Schmidt had
argued that if he were found guilty of violating the law, the statutes
themselves should be struck down as a violation of his constitutional
right to “life, liberty and security of the person”. The
judgement leaves this argument unresolved.
Kowarsky tried meticulously to bullet-proof his judgement, making it
difficult for the Ontario government to appeal. Yet he
simultaneously made it clear that his decision was “fact specific”. It should not be
seen as carte blanche for irresponsible yahoos to start peddling
unpasteurized milk. Anyone
wanting to use this case as a precedent would have to make the same
diligent efforts as Michael Schmidt to comply with the intent and
spirit of the law as interpreted in this decision.
Ontario government now has four options open to it.
could try to crack down further by enacting new legislation
specifically outlawing cow-sharing, or perhaps even outlawing the
consumption of raw milk. But
public opinion has been running strongly in favour of Mr. Schmidt. Some 250 raw milk
enthusiasts showed up in court to hear the decision. They represent just
the tip of the iceberg that is coming to be known as the “food freedom”
crackdown would give the movement even greater momentum and would be
politically unpalatable. Besides,
even quota-owning dairy farmers who oppose Michael Schmidt often drink
their own milk raw and wouldn’t appreciate being criminalized.
second option would be to appeal this decision, as urged on the
editorial page of the Toronto Star. But there’s no
guarantee an appeal would succeed, and this too could backfire
time Mr. Schmidt gets more publicity in this David-and-Goliath
struggle, more people hear about the scientific evidence indicating
health benefits to raw milk and start wanting the freedom to try it.
third option would be to do nothing—let the ruling stand and live with
the reality of cowshare arrangements. But not all would-be
consumers have access to cowshares. They want safe raw
milk sold conveniently in stores, as it is in California or Washington
Canadian Constitution Foundation has already been approached by people
inquiring about the possibility of legal challenges to make this happen.
Ontario could simply do the right thing: take Michael Schmidt
up on the offer he made 15 years ago to work amicably towards a
regulatory regimen offering consumers the choice of certified, safe raw
is doing it right now. Why
Selick is the Litigation Director for the Canadian Constitution
Foundation, which will represent Michael Schmidt in court if the Crown