Update, Spring 2010–NOT GUILTY
No event in the raw milk movement is bigger or more important for freedom of food choice than the court’s ruling in the case of Canadian dairy farmer Michael Schmidt. On January 21 in the Ontario Court of Justice in Newmarket, Justice of the Peace Paul Kowarsky found Michael Schmidt not guilty of all nineteen charges brought against him by the Crown for alleged violations of Ontario law. Charges dealt with offenses related to the Ontario Health Protection and Promotion Act (HPPA) and the Ontario Milk Act. The issues in the case boiled down to whether Schmidt’s cow share program violated the broad prohibition against the sale of raw milk in the province. Under the cow share agreements with Schmidt’s dairy, Glencolton Farms, investors would pay the farmer $300 to purchase a quarter interest in a cow enabling the investors to obtain raw milk and raw milk products from the farm. Ontario law basically states that “no person shall sell, offer for sale, deliver or distribute milk or cream that has not been pasteurized…”; a similar statute exists for milk products.
In Justice Kowarsky’s view, the only issue before him was this: “Is the defendant guilty of the offences with which he is charged or does the fact that he sells his milk and milk products only to paid-up members of his cow share Program exculpate him?” In providing an answer to this issue, the judge’s opinion raised several other questions which get to the heart of the matter in the ongoing battle between regulators and consumers who are exercising their legal right to drink raw milk when its sale is illegal. As stated in the judge’s decision:
- If the purpose of HPPA and the Milk Act is primarily public safety, does the legislation apply to a structured group of private people, such as members of the defendant’s cow share program, who may wish to become involved in activity which in itself is not unlawful, so that public protection of such people is not required, and therefore the legislation concerned is not applicable to them?
- Are the cow share members bound to accept the protection offered to the general public in the legislation or are they permitted to reject the protection offered, and assume any risks which may be involved?
- If the ultimate purpose of regulatory legislation is to protect those who are unable to protect themselves, especially those who are particularly vulnerable, do those members of society who expressly waive the need for protection, still need the protection? Relating to this case at bar, if, in consuming raw milk per se the cow share members are not committing an unlawful act, and they wish to continue to do that within the parameters of the essentially private cow share program, why should they be forced to be bound by legislation which is intrinsically aimed at the vulnerable—those who need the protection?
Faced with a loss of control over the food the people of Ontario can consume, the Crown filed an appeal of the decision on February 11. In its appeal the Crown made the claim that Justice Kowarsky was in error for finding “there was no evidence that anyone had become ill as a result of the consumption of the defendant’s milk products, despite the evidence of Ontario’s expert witnesses that many cases of milkborne illness go unreported and undiagnosed.” The Crown also made the claim in its appeal that Justice Kowarsky “failed to take into account the Precautionary Principle which provides that whether there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.”
In the appeal the Crown is also contesting the right of the citizens of Ontario to opt out of the protection of the public health laws through private contractual arrangements such as cow shares. With the proliferation of GMOs and other toxic additives and ingredients in the food supply, the question is: what protection? In finding that there is a distinction between public and private in the distribution of food and that people do have the right to waive the protection of the public health laws, Justice Kowarsky has set a benchmark that judges in this country need to follow.
Since the January 21 hearing, many Ontario dairy farmers have shown interest in starting up cow share programs. The hope is that dozens of them will get underway. Michael Schmidt has been courageously fighting the Province of Ontario for sixteen years now to secure the right to distribute raw milk legally. He needs more help from both producers and consumers. Schmidt’s message is this: “People need to basically take charge of and responsibility for their own food. You have to break down the difference between consumer and producer – the consumer is always passive, but consumers need to get involved in food production so that we don’t end up with total corporate control of our food supply. Reconnect with where your food is coming from; reconnect with how your food is produced; and reconnect with the people who actually grow the food” (Eyeweekly.com, March 2, 2010).
Read more here:
Canadian Consumer Raw Milk Advocacy Group