Michael Schmidt and the Crown submit final arguments in raw milk case under the Charter of Rights and Freedoms

Michael Schmidt’s raw milk case is in two parts (or three if you count the contempt charges). The part for which these final arguments apply is the part that is being argued under Canada’s Charter of Rights and Freedoms. 

Dinner and a movie July 18th, 2009 presented by Symphony in the Barn at Michael Schmidt's Glencolton Farms near Durham Ontario. The Silent Movie was accompanied by live chamber music.

Michael Schmidt’s final argument in the Charter case appears below (after the letter). These arguments were submitted on June 26th. The Crown’s final argument (submitted July 24th, 2009) can be found at this link. Michael will appear before Judge Kowarski on August 31, 2009, at which time a date will be selected on which the judge will render a verdict. I believe the final arguments in the other part of the case are yet to be submitted. 

And now here’s that final arguments from Michael Schmidt in the Charter case for raw milk:

Court File No. 4960-07-3084

ONTARIO COURT OF JUSTICE

(NEWMARKET)

 

BETWEEN:

HER MAJESTY THE QUEEN

The Respondent

-and-

 

MICHAEL SCHMIDT

The Applicant/Defendant

 

APPLICANT’S CLOSING ARGUMENTS AND SUBMISSIONS

regarding

NOTICE OF CONSTITUTIONAL QUESTION

 

Overview

The Applicant Michael Schmidt has filed the Notice of Constitutional Question (NCQ) as a direct result of 20 charges laid against him under the Health Protection and Promotion Act (HPPA), the Milk Act, and the Provincial Offences Act (POA). The evidence has been laid out in detail during the Provincial Offences trial, which commenced on January 26, 2009. The same Court heard this constitutional challenge thereafter.

The Applicant, schooled not by the Upper Canada Law Society, but in the practice of farming, is deeply grateful and feels honoured for the provision of self-representation, and therefore, being able to freely express himself and present his case, using his own verbiage. Therefore without false pretense, the Applicant presents his final submission on the NCQ filed March 26, 2008.

The Applicant will reference certain details from the POA trial, the NCQ hearing, and prior motion hearings. As such, the Applicant moves this court to accept as part of these submissions all the material, arguments, exhibits and transcripts, and the like, thereof. Specifically, the materials of the September 22, 2008 motion hearing, the case management hearing of November 26, 2008, the proceedings of December 22, 2008, and the transcripts of the proceedings from January 26, 2009 to Feb. 4^th, 2009

The Applicant has, for many months, read and studied various case laws relating to the case at hand, and was astounded to notice the absence of commonality to the rulings. The Applicant felt akin to being in a cookie store where one could pick and choose whatever suits best to substantiate one’s point. And so, the Applicant believes it best, and aims to argue from the point of legal principles.

The Applicant, being a farmer, who is very knowledgeable in the fundamental principles observed in, and taught by nature itself, will rely on exactly the same train of thought. There cannot be any argument to the truth that water will only flow downhill, and there also can be no argument that the sun will rise in the morning even when the clouds cover the sky. 

Indeed, as the saying goes, the Applicant does not believe that he has hired a fool as his lawyer!

The Applicant respects the legal process as a civil remedy, and realizes that in today’s legal reality a well-funded legal party appears to have the advantage over a self represented individual. However, it is the Applicant’s firm view that truth does not at all become more truthful by the size of the legal team or the volume of documentation submitted.

Therefore the Applicant will provide his argument with the confidence that at the end truth will prevail, because truth must be the guiding light for justice!

 

Milk as Food

The story of milk is remarkable considering its role as an indispensable part of man’s diet. Mankind naturally evolved on the very basic premise of learning through experience. If there was hardship there was a desire to change and a desire to improve circumstances. The “thinking” individual would never rest to find the cause of suffering, disease and other hardship.

The “thinking” individual would also embrace the goodness, the healing, and the blessings, which over thousands of years provided the base for progress and growth, vitality and well being. In a very simplistic way, if a certain food would prove to be “hazardous” it would disappear and would quickly lose its function as food.

Milk in its pure and raw form as part of the human diet never really was questioned until the end of the 19^th century. So what changed?

With the growth of the industrial revolution the population started to shift from the country to the urban centers. Food was increasingly transported from rural areas to the centers of the ever growing cities.

Consequently, the consumers’ direct connection to the source of the food production slowly disappeared. Food in general started to become simply a commodity, and so the added dimension of trade for profit by dealers became increasingly prevalent. The essence of what food is, the function of good nutrition, became secondary.

The technology at that time was very limited for keeping perishable foods fresh and healthy.

The lack of proper knowledge, hygiene and technology resulted in compromised quality and safety of foods distributed in urban centers.

Minimizing losses for the sake of profit by virtue of pasteurization was readily welcomed by the new emerging food trade industry engaged in serving the public.

As Dr Beals stated during his testimony, there was considerable controversy regarding the merits of pasteurization amongst the public and the medical profession. Doctors preferred the production of hygienic milk instead of covering up the poor quality milk. In the U.S. the term and practice still exists to produce certified milk which is raw milk for human consumption. See Dr. Beals testimony examination in chief January 29. 2009 pg 71-75

Under the auspices that pasteurization would assist in combating tuberculosis, it was embraced as a tool in dealing with the emergency. However, as might be self evident to some, the cause was not the milk, but the condition of the animal itself. As such, pasteurization was at best a band aid, but not a cure. And so herein is evident the truth that pasteurization fails to address the root cause.

What is further interesting to note is, that for decades now tuberculosis (TB) in cows has effectively been eliminated, and thus the emergency is long since over. And the cause was not addressed with pasteurization of the milk, but by dealing with the animal welfare.

And this point, that there is no more TB, let alone an emergency, calls to question the justification sighted today for maintaining a law for mandatory pasteurization.

The Applicant finds it noteworthy of reflection that, as testified to by Dr. Beals, Legislation is in place around the world, which provides regulations for the safe consumption of raw milk.

The dairy industry in Canada is extremely regulated through the marketing boards. The Milk Marketing Board, or as they are now called, the Dairy Farmers of Ontario, control all aspects of the dairy industry in Ontario. They have been granted a monopoly status with the legal obligation to expand, explore and research new markets. The Dairy Farmers of Ontario have expressed clearly their opposition to the demand from consumers to have access to raw milk.

As would have been introduced and highlighted by James McLaren, who, on November 26^th, 2008 applied for 3^rd Party Intervener status, the Milk Act, chapter M-12 imposes a statutory obligation on the Ontario Farm Products Commission (OFPMC) to satisfy ALL consumer demands for dairy products and to undertake research projects for this purpose.

The increase in demand of raw milk by the public, so that the public has access to certified raw milk, would require policy changes.

The Applicant is not seeking, in these NCQ proceedings, policy changes, but acknowledges that one of the reasons why these proceedings have taken place is because of the DFO has failed to fulfill their statutory obligation. See transcripts “Case Management” November 26. 2008

The concerns of the consumer regarding the source and the quality of their food in general, and in this case specifically the milk, lead to the development of the cow share concept here in Ontario since 1992. See Michael Schmidt testimony Transcript January 28. 2008 Pg 87

The Applicant respects the Court’s position that scientific disputes cannot be resolved in the courts. Therefore the Applicant will only highlight some important observations, but also acknowledges that this Charter application does in fact deal with the fundamental principles of law and not competing views of experts. Therefore here are some of the significant observations.

 

Expert Witnesses

Four experts in total testified for both parties. Dr. Ted Beals from Michigan and Dr. Hull from Australia testified for the Applicant. Dr Griffith and Dr. Wilson, both from Guelph, testified on behalf of the Attorney General.

By reviewing their CVs and testimony, a remarkable difference has to be noted:

• Both expert witnesses for the Applicant have done research or are involved in research relating to raw milk for human consumption.

• Both expert witnesses for the Respondent did not provide any knowledge regarding raw milk for human consumption nor did any research on raw milk therefore. All peer reviewed articles and research papers provided to the court, did not relate to, or make distinction between raw milk for human consumption and raw milk for pasteurization. Their lack of appreciation and knowledge of such difference was confirmed during their cross examination.

• Both Applicants’ witnesses have worked and still are researching actively in the field of commercial pasteurized milk and raw milk for human consumption.

• Both Respondents’ witnesses have only researched existing peer reviewed papers on the issue of the safety of raw milk in general, which makes no distinction between the two raw milks.

 

Reflection

The Applicant is of the view that matters of this scientific dispute can only be constructively resolved by coming together outside of an adversarial setting such as this court.

Given the recent serious food born outbreaks, for which there has not been mandated a kill step, such as pasteurization, and given that the sale and distribution of cigarettes is permitted in Ontario, despite the epidemiological evidence suggesting the imminent dangers there of, gives it the appearance that the priority for public policy making is more a matter of economics and convenience rather than health protection and promotion. And so it is anyhow arbitrary.

15 years ago, the Applicant offered, for the purpose of public policy development, a joint study of the safety of raw milk for human consumption to the Ministry of Health, the Ministry of Agriculture and Food and the Ontario Milk Marketing Board, but it was plainly declined. See Transcript January 28 2008 pg 95

The Applicant will now proceed with the legal argument relating to the section 7 Charter application.

 

Legal Arguments

General

In accord with the principle that all things are presumed to be lawfully done, until evidence be brought to the contrary, the Applicant is of the view that the Statutory laws in question, namely the Health Protection and Promotion Act (HPPA), and the Milk Act, appear lawful and in keeping with the Canadian constitution.

As such, the Applicant does not have inherent reservations about the constitutionality of the statutes in question.

However, where alternate interpretations, which contemplate a broader scope in their application, are accepted and so applied, it then gives the Applicant reason to object and argue their lawfulness and constitutionality. Specifically, those interpretations, which extend their application to the private realm of commerce; and/or extends their application to persons over and above those created or chartered by the Crown, Parliament or the Legislature, is the Applicant’s cause for objection.

The Canadian Charter of Rights and Freedoms, Section 7 reads: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

 

Liberty in Section 7

Whereas the matter before the court considers the fundamental issue of the right to contract and free disposal of one’s property; and,

Whereas the Respondent has suggested that Section 7 of the Canadian Charter of Rights and Freedoms does not apply in this case (see Attorney General of Ontario’s Outline of Issues and Law on the Section 7 Charter Issue, page 7, paragraph 27); and,

Whereas the text of Section 7 does not exclude the right to contract, or other freedoms derived from the broad right to liberty; and

Whereas the only boundary provided for in Section 7 is that the rights be considered in accordance with the principles of fundamental justice;

Therefore the Applicant denies and objects to any notion to suggest that the right to liberty, as enumerated in section 7, does not involve the right to contract, associate, free enterprise, or the like.

It is a self-evident truth to the Applicant that the imposition of a fine as a result of a simple private contract puts that person in bondage and servitude. If there be no provision in the Canadian Charter of Rights and Freedoms by which a man might lawfully come to exercise such a fundamental right, then such an imposition is anyway akin to imprisonment, and still a violation of one’s right to liberty.

The Applicant strongly objects to the Respondent’s suggestion, as found in the trial transcripts of January 30^th, 2009, page 73, line 28, that there is no constitutional right to sell unpasteurized milk. Such a position implies the constitution itself has no regard for human rights, which would render the constitution itself fundamentally awful and unlawful.

In fact, the Applicant finds the Respondent’s position absurd in suggesting that the right to liberty does not encompass the right to associate, contract and free enterprise.

 

Human Rights and Section 7

The Applicant will show that the rights enumerated in this section are human rights, and not mere civil rights. The Canadian Charter of Rights and Freedoms being designed to hold the Crown, Canadian Governments, Parliaments and Legislatures to their limited jurisdiction, and catch them if and when they operate outside their bounds, the Applicant will show how a broader interpretation of statutes, as previously suggested by this honorable court, would be in direct violation of the section 7.

It has been identified that the Canadian Human Rights Act and the various provincial and territorial antidiscrimination statutes, provide protection from discrimination to individuals in their private activity, while the Canadian Charter of Rights and Freedoms protects individuals from discrimination in the area of governmental activity. See RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573

It was further stated that the various human rights legislation that exist are complementary and subject to the Canadian Charter of Rights and Freedoms, directly implying that the Canadian Charter of Rights and Freedoms does entail or make proper provision for the existence of human rights.

Accordingly, it is respectfully submitted that the Canadian Charter of Rights and Freedoms does not only embody civil liberties, rights and duties, as granted or chartered by the state, but also human rights.

It is a truth that human rights are not subject to alienation by the Crown, Parliament, the Legislature, or anyone else, but must necessarily, from a point of fundamental law, be recognized and adhered to.

In the case of Irwin Toy Ltd. v. Quebec, 1989 (S.C.C.), section 7 of the Canadian Charter of Rights and Freedoms applies only to individuals, and does not apply to corporations.

In the cases of R. v. Colgate-Palmolive Ltd. (1972), 8 C.C.C. (2d) 43, and in the case of Parkdale Hotel Ltd. v. The Attorney General of Canada and The Chief Electoral Officer of Canada (1986), 1 F.T.R. 190, individual has, in relation to the Canadian Bill of Rights, been held to refer to Natural Persons.

Whereas the Applicant has not seen nor been presented with any evidence to the contrary, it is of the view, and puts it to this honorable court, that the same is true for the Canadian Charter of Rights and Freedoms. That is to say, Section 7 applies to Natural Persons, which are individuals, and not Corporations.

Whereas individuals or Natural Persons are in reference to human beings, they are inherently endowed with human rights.

Given that the corporation is the only legal person known to our form of law, as so stated in Hague v. Cancer Relief & Research Institute, [1939] 4 D.L.R. 191 at 193, therefore, a mere individual or Natural Person, is itself not a legal person.

Whereas legal persons have legal rights, and natural persons have natural rights, and natural rights being human rights,

Therefore it is respectfully submitted that the rights enumerated in section 7 of the Canadian Charter of Rights and Freedoms are not reflective of mere legal rights, but are more properly reflective of man’s inherent unalienable human rights.

 

Overbroad – “Person”

It is a truth that there can be no law making, statutory or otherwise, or interpretation thereof, that would seek to abrogate, abridge or infringe on human rights.

Whereas this honorable court has already made its interpretation, did suppose an intention of the legislators, and subsequently ruled that the word “Person”, as applied to both the HPPA and Milk Act, extends not only to legal persons, but also to individuals; and,

Whereas section 18 of the HPPA is contrary to the principle that: “It is unjust for freeborn individuals not to have the free disposal of their own property” (Iniquum est ingenuis hominibus non esse liberam rerun suarum alienationem); and

Whereas section 18 of the HPPA is a clear limitation to the right to contract, free enterprise, etc., and thus a limitation on the right to liberty; and

Whereas sections 15.1 of the Milk Act is contrary to the principle of “Use your own property and your own rights in such a way that you will not hurt your neighbor, nor prevent him from enjoying his”, (Ita utere tuo ut alienum non laedas.); and,

Whereas sections 15.1 and 15.2 of the Milk Act are clear limitations to freely engage in enterprise, and thus an abridgement of liberty;

Therefore it is respectfully submitted that both the HPPA and the Milk Act, as so interpreted and ruled on by this honorable court, are in direct violation of an individual’s natural right to liberty, and thus overbroad, unconstitutional and in violation of Section 7 of the Canadian Charter of Rights and Freedoms.

 

Vague – “Include”

Whereas the etymology and a strict interpretation of the word “include” directly suggests it as being limiting in nature, rather than being expansive; and,

Whereas the Legal maxim “The inclusion of one is the exclusion of another” (Inclusio unius est exclusio alterius) confirms the inherent limiting nature of the word “include”; and,

Whereas Black’s Law Dictionary, 4^th Revised Edition in defining the word “include” confirms its inherent limiting nature; and,

Whereas this honorable court has ruled that the word “include” is to be construed as being an enlargement or expansive in nature, and not limiting;

Therefore it is respectfully submitted that meaning of the word “include” is ambiguous.

Whereas the scope and applicability of the HPPA and Milk Act is substantially affected by the meaning of the word “include”; and,

Whereas the scope and applicability having direct material affect to the case at hand; and,

Whereas a legal maxim states: “It is a wretched state of slavery which subsists where the law is vague or uncertain” (Misera est servitus, ubi jus est vagum aut incertum)

Therefore it is respectfully submitted that the said statues are both, vague and ambiguous, subsequently unenforceable, and unconstitutional.

 

Overbroad – “Private/Public”

In considering the evidence, and logical deductive reasoning there on, the Applicant is of the view that the statutory laws in question, and government regulations in general, are limited to the public realm, and excludes the private.

• Section 2 of the HPPA makes clear reference to “public health programs” and “the people of Ontario”. Law dictionaries make clear that “people” is a body politic, aggregate in nature.

• Both Mr. Barton and Mr. Munn confirmed that they were acting as public health inspectors, and not private health inspectors.

• The Respondent’s document “The Attorney General of Ontario’s Outline of Issues and Law on the Section 7 Charter Issue” makes repeated reference to the legislator’s prerogative to implement laws for the protection of the community, and paragraph 33 of page 11, for example, makes clear reference to public safety.

• Because individuals, such a farmers, are not prevented from drinking their raw milk, if the law was not limited to the public, it would be discriminatory to those for whom the means to get the milk, by prohibiting the sale and distribution thereof, was destroyed. However, where the law is construed as only applying to the public, the law as it thus exists, is not discriminatory.

• Even during the tuberculosis emergency situation in 1938, the legislation only prohibited the sale and distribution, and not the consumption of raw milk. The legislation appeared to respect such a private right, and the policy appeared only to be for the protection of the public.

• The Respondent sighted the possibility of spreading communicable disease as a justification for the law. If such were the case, and the government did have the authority to limit the private right to consume raw milk to protect the public, it has, in the 71 years, not done so. And therefore it appears evident that the legislature has properly respected the boundaries between the public and private realms.

• It is a self evident truth that the State cannot absolutely know what is best. And so it cannot impose on private individuals that which the State has accepted as best policy.

If, notwithstanding the foregoing evidence, it is anyway so construed that the HPPA and Milk Act still apply equally to the private realm, as they do to the public; and,

Whereas the HPPA and Milk Act plainly abridge the subject’s right to contract, commerce and free enterprise; and,

Whereas such abridgement would prima facia destroy the means by which an individual might come to exercise his natural right to contract, commerce and free enterprise;

Therefore it is respectfully submitted that it would thus be fundamentally unjust, overbroad, and inherently unconstitutional, and in direct violation of section 7 of the Canadian Charter of Rights and Freedoms.

 

Vague – “Private/Public”

Whereas the HPPA and Milk Act are not specifically clear that they only apply to the conduct and affairs of the Canadian or Ontario public; and,

Whereas the HPPA and Milk Act are not specifically clear that it is to be construed as applying or not applying to private actions and affairs;

Whereas a legal maxim states: “It is a wretched state of slavery which subsists where the law is vague or uncertain” (Misera est servitus, ubi jus est vagum aut incertum)

Therefore it is respectfully submitted that the said statues are vague and ambiguous, subsequently unenforceable, and unconstitutional.

 

Catch All

It is a truth that “Liberty is more favored than all things” (Libertas omnibus rebus favorabilior est.) and “Whenever there is an interpretation doubtful as to liberty (or slavery), the decision must be in the favor of liberty.” (Quotiens dubia interpretatio libertatis est, secundum libertatem respondendum erit.)

Therefore it is respectfully submitted that the statutes in question must be construed in favor of the liberty of an individual over the dictates of the State.

Summary

On one level, the Applicant finds it rather amusing to have participated in a case such as this, wherein a long standing food staple, is suddenly so staunchly opposed by the state.

But in any case, the Applicant fully appreciates that it is the inherent right of a sovereign state to implement legislation for the protection and general interests of its body politic, the public.

However, the Applicant is disappointed that, in this case, agents of the Province of Ontario appear to have had no apparent accommodation or due respect for the inherent rights of an individual, which are firmly rooted in natural law, as so recognized in the UN Declaration of human rights, the Canadian Bill of Rights, the various human rights legislation, as well as the Canadian Constitution.

Four (4) outstanding expert witnesses have entertained us, each stating their position on the subject of raw milk, and its potential health risks. The adversarial nature of the court setting was inherently not conducive to settling any differences in opinion. As such, at the end of the day, what we received were two opposing, acceptable views on two different subjects: raw milk destined for pasteurization, and raw milk destined for direct human consumption.

In objectively contemplating their testimony, the Applicant is of the view that nothing has been substantially settled, scientific or otherwise. As such, rather than further contemplating the murky water until the cows come home and the milk goes sour, the Applicant believes it best to direct the court’s attention to the fundamental principles of law.

Again, the Applicant is of the view that both the HPPA and Milk Act do not, on its face, appear unconstitutional. However, where there is a contrary interpretation, the Applicant felt obligated, to ensure the upholding of our fundamental rights, to challenge the constitutionality of the said laws.

It is believed sufficient argument and direction has herein been provided to this honorable court about the limits of the state’s jurisdiction. Whereas the statutes in question are accepted as applying equally to individuals as to corporations created or chartered by the state, the Applicant submits that they are consequently in violation of section 7 of the Canadian Charter of Rights and Freedoms. Whereas the statutes in question are accepted as applying to actions private in nature, here too the Applicant submits that they are in violation of section 7.

 Reflecting on all the proceedings of this case so far, it is with gratitude that I again recognize the importance of the legal process as part of a society, where fundamental justice is anchored in natural law and so recognized in its constitution. Society is constantly evolving and so is its inner structure. The applicant is of the view that it is everyone’s moral obligation that the execution of societies’ laws is congruent with a sound interpretation of fundamental law. I suppose the question at the end of these proceedings is “who broke the law”.