© 2010  Karen Selick

An edited version of this article first appeared in the January 26, 2010 issue of the National Post.
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Got Milk Justice?

Sitting 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.


First, 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.  


But 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 defence.


Ontario, 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.


Because 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.


JP 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. 


The Ontario government now has four options open to it. 


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” movement.  A 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.


The 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 politically.  Every 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.


The 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 state.  The Canadian Constitution Foundation has already been approached by people inquiring about the possibility of legal challenges to make this happen.


Lastly, 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 milk.  Michigan is doing it right now.  Why shouldn’t Ontario?




Karen Selick is the Litigation Director for the Canadian Constitution Foundation, which will represent Michael Schmidt in court if the Crown appeals.


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       November 28, 2010