The Province of Ontario’s appeal puts the spotlight back on raw milk rights

Farmer Michael Schmidt talks to A Channel reporter. That's lawyer Karen Selick in the background.

The Province of Ontario’s appeal of Justice Kowarsky’s January 2010 acquittal of raw milk farmer Michael Schmidt began yesterday at Newmarket court with Justice Peter Tetley presiding.

Shortly after the courtroom door was unlocked at 9:30 am, the small space was fully occupied — with reporters, a few legal types, an observer from the Ministry of Health, but mostly with raw milk supporters of various sorts. As a dozen more people arrived over the course of the morning, accommodations in the pew-like benches went from full to packed, bringing the audience total to about forty.

Michael Schmidt talks to a reporter yesterday.

Justice Tetley took a conversational approach to the proceedings, frequently interjecting his own comments and questions into the stream of legal presentations. This made for an engaging day and livened up what might otherwise have been rather more dreary and dull. He noted that the subject of the appeal was a matter of considerable public interest, as demonstrated by the many members of the public who were there in the courtroom.

Defense counsel Karen Selick of the Canadian Constitution Foundation counted a total of five government lawyers (including a trainee) in attendance. British Columbia lawyer and health activist Shawn Buckley was also there as an observer, having been in town recently for the Total Health Show in Toronto last weekend. During the morning break he mentioned, as an aside, that B.C. had moved their radiation testing from Vancouver, inland to the Okanagan Valley because, he said, the readings they were getting in Vancouver were too high. The radiation in question was from the recent nuclear disaster in Japan.

Several media reporters and cameramen were in court throughout the morning, representing the Toronto Star, the National Post, A Channel TV and the Canadian Press. Michael Schmidt and his lawyer Karen Selick held an impromptu news conference outside the courthouse during the lunch break, during which supporters provided glasses of raw milk and slices of raw milk cheese for toasts and tasting.

Chief among the arguments made by government lawyers against the Kowarsky  verdict was that he had taken a narrow interpretation of the relevant legislation, the Health Protection and Promotion Act, and the Milk Act. Whereas, it was argued, indications from higher courts have been that such legislation — dealing with matters of public health and safety — is to be given a broader and more liberal “reading”. Defense lawyer Karen Selick argued, however, that the legislation says its purpose is to promote the health of Ontarians.  Since some people need raw milk for their health, a truly broad and liberal reading of the legislation would be one that allows people to legally acquire raw milk.

The day began with a presentation from the lawyer for the government of Ontario, followed by statements by the lawyer representing the Grey Bruce health unit. While they agreed to abandon the appeal of one count of “distributing without a license”, they argued that one of the chief issues under appeal is Michael Schmidt’s cowshare distribution arrangement and whether it is in fact legal. Much was made of how the cowshare agreement is unclear and not well documented, and they wondered how exactly 150 families each get an ownership share of 24 cows. They suggested that the cowshare arrangement is in fact, just a membership scheme, not much different from Costco, and they noted that in internal accounting, Mr. Schmidt does not treat revenues from milk differently from, say revenues from bread.

The government lawyers’ line of argument suggested that there might have been some way Mr. Schmidt could have organized his cowshare to make it legal in their eyes. However, upon questioning by the judge and by the defense, that proved not to be the case. In their view, there was no way that such a cowsharing arrangement could be legal, even if it were more highly documented and cow-specific.

And according to Karen Selick, whose presentations took up most of the day, that precisely is one of the problems. On the one hand people have a legal right to consume raw milk. That is not prohibited. But unless they live on a dairy farm, they have no practical legal means by which to exercise that right. Karen argued that a similar legal bind prevented women from getting abortions they needed and that the recognition of this quandary by the courts then led to the acquittal of Dr. Henry Morgantaler, and to the government’s acknowledgement of his right to perform abortions for such women. She argued that, following the same principle, Michael Schmidt’s right to supply raw milk to people who otherwise would be not be able to exercise their legal rights, should similarly be recognized.

Although it was not brought up at the appeal, the access to medical marijuana case that hit the news yesterday hinges on the same issue — the right to use it, but no legal means to access the product.

Risk Communism

Karen Selick coined a new phrase “risk communism” to describe the practice of denying some people access to a food because it ‘might’ be a risk to some other people. Raw milk is what she was referring to, of course. She went on to discuss “asymptomatic carriers”, people who have the germs but are not getting sick from them, but who — it has been argued — present a danger to others.

Karen characterized such people as having such a strong state of health that germs do not affect them, and she suggested further that this was a good thing; she referred to the “Hygiene hypothesis” under which it is argued that through efforts at sterilization of the human environment, we have actually increased our danger of illness due to our lack of immunity that exposure to germs would have helped build up.

Although it wasn’t mentioned at the appeal, if government were truly concerned about asymptomatic carriers, they’d either prohibit dairy farmers from drinking raw milk or impose some sort of quarantine on their off-farm relations with other people.

Karen went on discuss in detail the Charter of Rights and Freedoms arguments regarding this case, but we won’t go into all those here. This was followed by a one-hour rebuttal from a lawyer representing the Attorney General’s office.

For more details on the legal arguments presented by the parties in this case, read their factums:

The Crown’s factum

Defense factum

Attorney General’s factum

Justice Tetley said he would likely be ready to rule on the case in the first week of July, but that date was subject to change depending on his workload between now and then.

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16 Comments

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16 responses to “The Province of Ontario’s appeal puts the spotlight back on raw milk rights

  1. Gordon S Watson

    Miss Selick has mis-represented what the Morgue+Dollar case was about. Unlike nearly everyone else in Canada, I’ve actually read it and argued about it, having been on the receiving end of 7 prosecutions.
    In fact, Morgey was acquitted on the very narrow principle that he was allowed to do artificial abortions in a clinic other than a licenced hospital only if they were THERAPEUTIC.
    That’s ALL the Supreme Court of Canada ruled. The Court then referred the law back to Parliament reasoning that babies in the womb needed protection. Seven laws in BC and 3 federal statutes refer to unborn babies as “persons” … but members of the Cult of the Black Robe don’t have much to say about the human right of those persons = to live = do they?

    The idea that ‘abortion was decriminalized’ is one of the monstrous myths repeated relentlessly by feminists ; in fact, at trial on Oct 5 1994, I made Justice BC Macdonald utter a Judicial Notice that a sex-selection abortion, which I’d tried to prevent – by imploring the father of the unborn little girl – was an offence against section 163 (2) (c) of the Criminal Code. Special Prosecutor Sorochan agreed with me. The Judicial Notice states that the parents and the staff of the abortuary were parties to the offence. After which the judge then sent me to gaol for 21 days, for attempting to stop that crime in progress. How do I know that the baby being exterminated was a girl? The father told me so … the East Indian couple were getting rid of the second – unborn – daughter, because they didn’t want to have to come up with another dowry. How do you like mulit-cultural-ism, so far?

    For decades, the feminazis hammered away on the ‘bortion issue …. always using the word “therapeutic” … but after the Morgue+$$ decision, they never use that word again.
    “Elective surgery” ? … Pay for your own God damned abortion

  2. thebovine

    Sounds like you could write a book on the subject, Gordon. I’m sure the whole abortion issue is morally fraught, not only for sex-selective reasons. But I have enough cans of worms open just now, thank you!

  3. Gordon S Watson

    the ONLY reason I referred to it, at all, is because Miss Selick blundered into that mine-field. Trotting-out the Morgue+Dollar case as though it pertains to raw milk .. sacred to the femi-nazis,I know, but quite a stretch in this situation
    In his Reasons in the Schmidt decision at the Provincial Court level, Justice of the Peace Kowarski noted that he’d allowed 2 experts for each side. Yet said : ‘if I’d allowed 22 for each side, it still wouldn’t have resolved the issue’
    Point being: it’s not about ‘health’. Anyone who honestly investigates the raw milk contest soon realizes that much. It’s about licencing. Whether the state has all power, and dispenses it via crony-ism or the bribery so rampant in every communist regime. Or whether a Canadian citizen has in-alien-able rights given to us by God in the first instance. Particularly, the right to use and enjoy our private property without interference from busybody bureaucrats with nothing better to do but make excuses for parasitizing the public purse. .

    By failing to make the right to use and enjoy our property – as expressed in the Canadian Bill of Rights – the lead argument, Counsel Selick has let down the pro-raw milk faction. But it’s OK … I’ll be doing it as an Intervenor in British Columbia.
    The news report says that the Counsel for the AG of Ontario cannot figure out ” … how exactly 150 families each get an ownership share of 24 cows.”
    Those over-educated idiots need to go down to the Land Registry office and study the documentation for a couple of parcels held by tenants-in-common = a practice known to British Jurisprudence for the last 1000 years. Or call the CRA income tax racketeers, for their interpretive bulletin, which explains how a group of taxpayers can own a stable of horses, as a jointly-held asset, per section 31 of the federal Income Tax Act

  4. thebovine

    It seems the legal arguments for raw milk legal have been drawing a lot of precedents from beyond the margins of respectability.

    For example, Justice Paul Kowarsky supported his 2010 raw milk acquittal with an example drawn from a legal decision pertaining to a swingers’ sex club in Montreal.

    The fact that the club required a substantial membership fee (as with the cowshare group) helped solidify the argument that it was in fact — and not just in theory — a “private” club, well apart from “the public”.

  5. Kurtis

    Surprised she chose to use this particular argument considering how shakey it is, and how it serves to enflame public opinion (possibly in the wrong direction?). Maybe there was a behind the scenes reason for this? Politics can lead to some interesting bed fellows.

  6. Walter's Dad

    I do hope Ms Selick has a chance to reply. Hopefully she’ll help out the BC folks and educate potential “Intervenors” before they run off down the wrong path and ruin it for everyone.

  7. thebovine

    The Michael Schmidt appeal story is making the news as far away as South Africa, as evident on this website: http://www.southafricafocus.com/2011/04/13/ontario-government-appeals-michael-schmidt-raw-milk-ruling-national-post/

  8. Gordon S Watson

    as usual, cranky old Crabby Appleton weighs-in with his trademark cheap shot …
    notice how far out of touch is the Old Grumbler’s worry that I will ” …ruin it for everyone” … contrasted with what my efforts have actually accomplished over the last decade.
    the negativity of idiots such as Walt’s Dad … along with his fellow-travellers who refuse to de-Stalin-ize … doesn’t matter a whit here in BC, where the REAL MILK is flowing from the sunny April pasture of the Fraser Valley to 500 households in the Big City.

    • Walter's Dad

      Overly defensive as usual, Gordon. And overly arrogant.
      I didn’t really want to get into this, but I have had some difficulty figuring out what your efforts (as an “Intervenor” in court) have achieved. Other than getting a nice lady convicted of contempt of court, it doesn’t seem as if any of your legal assertions have held any weight whatsoever. These quotes are but a few gems:
      “This pretended Petition is a nullity ab initio. Fraser Health Authority lacks status for originating such a cause of action.” – just plain wrong.
      “We changed the package so as to make clear to shareholders that the milk is NOT FOR HUMAN CONSUMPTION.” – gee, no judge will ever be able to see through that.
      “we are doing something other than what is proscribed in the Order of Madame Justice Gropper.” – it would appear not.
      “I say that since the Milk Industry Act once did expressly make a way for raw milk to be sold here, yet is now silent on the matter, then the presumption is that raw milk may be sold in this province in accordance with the law of England.” – not a great presumption.
      “in Court I argued that Fraser Health Authority is statute-barred by the Attorney General Act RSBC, from wearing the mantle of the Crown, at all.” – bzzzt…wrong again.
      From Justice Gropper’s reasons for judgment to grant the injunction: “Alice Jongerden did not appeal the July 9, 2008 order. Third parties have appealed the order but have not proceeded with the hearing of the appeal on its merits.” – you have stated that you appealed this order, but apparently no follow-through.
      Now before you go getting all huffy again, let me say you clearly have made a contribution to the raw milk movement as a vocal proponent. And for that, everyone should be thankful. But just leave it at that. These folks have a real lawyer now, so it just seems wiser to leave the lawyering to the professionals.

  9. Gordon S Watson

    Walter Senior = Your confidence in someone just because she’s a “professional lawyer” is laughable, but understandable because you – so obviously = are kist a child when it comes to knowing what goes on in those cesspools. 30 years in Her Majesty’s Courts in British Columbia, having met about 100 of the members of the Cult of the Black Robe, taught me what their racket is really about
    Michael Schmidt prevailed at the Provincial Court after he fired one of the most “prestigious” of them all.
    I’ve brought the thing to a fine point = The govt. cooked-up a law in order to catch us, meanwhile breaching one of the foundational Acts of the province. And when I warned them, their response was ….”it doesn’t matter”. Last Monday I did lay 3 charges pursuant to the Attorney General Act. So we’ll see what the Administrative Judge has to say about that, next week. This will be my 8th Special Prosecutor
    It puzzles me why you expend your time kvetching, in the face of the fact that our herdshare is a success. Then I recall the Biblical explanation for the thorns in our sides.
    A “vocal Proponent” ? How little you know. I subsidized the thing with $14,000 in cash and spent the first year doing home delivery, to get the thing going, as a labour of love. For laughs, I used to have some photos of me on my website, shovelling the manure, as Chairman Mao exhorted us effete intellectuals to do. I paid my dues … What have you done, lately, in practical terms, for the Campaign for REAL MILK?

  10. Walter's Dad

    30 years in her Majesty’s courts perhaps, but any successes to be found? Whether it was the Tax Man, Burnaby City (Mason museum), Paul Martin, Gordon Campbell, Everywomans Health Centre, Bruce Strome, or Home on the Range = regardless of the topic, these all seem to have had the same bad result for you. Conspiracy? Maybe. But if so then why would you think these 3 new charges would have any greater chance of success?
    I freely admit that I haven’t done anything practical for the campaign – I know my limitations. I’m not a lawyer, so I can’t help with that. And I’m physically not able to help at a farm. Shame on me. But I do help with what little money I have though, keeping demand going in the US.
    Happy that you’re able and willing to do the legwork in BC. You should be proud of this, rather than implying it is beneath you. This contribution is much more valuable than what you provide in court.

  11. Gordon S Watson

    the latest bit of stupidity from Walt’s Dad reveals him with very poor comprehension of the English language, or not bright enough to appreciate my sarcasm, or both
    I finally figured out what the old coot’s problem is : he’s Canadian! Along with nearly everyone else in this benighted land, he’s perfectly conditioned to defer to authority.
    If the govt. isn’t in charge, it doesn’t compute. Whenever anyone demonstrates genuine initiative, and actually creates some wealth outside the credit monopoly of the national socialist sandbox, – he and his countrymen mutter that what we’re doing is somehow illegal. And it is, according to Karl Marx.
    Yeah, well, I had honour of accompanying Mark McAffee when he came through in 2007, to speak to us about his success at Organic Pastures, in California. Mr McAffee is a wonderful example of the classic entrepreneur in ACTION! …. the kind of man who made America great. But of course, high-level success pegs McAffee as ‘way too arrogant’, for the likes of covetous curmudgeons.
    The reason there are as many transplanted Canadians in the US of A as there are north of the 49th parallel, is because of the niggardly attitude of guys like Walt’s Dad. Misery loves company but men of good inevitably seek to associate with winners, in stead of whiners

    As for my record in Court … I spent a couple of decades helping people who were genuinely teachable. The years I spent as a political activist, garnered a million dollars worth of publicity for the (so-called ) Pro-Life cause. Publicity like $$ cannot buy.
    My Commander in Chief directs me not to cast my pearls before swine … that would be, the idiots who sit on the sidelines doing nothing but kvetching. I don’t owe them the time of day, let alone an itemized account of how it all fell out.

    The decision last week in BC, about how the Liberal govt. handled the teachers union, puts us over the hump in the Campaign for REAL MILK. That reasoning, applied to the regulation which outlawed raw milk, means, “it’s all over but the crying”. Supreme Court Justice Griffin ruled that the govt. of BC ought to have negotiated with stakeholders. As political commentator Vaughn Palmer explains = “Even the most heady legislative majority is obliged to respect due process” page A2 Vancouver Sun Friday April 15 2011.
    The Editor of the Sun wrote ” … the government made a mistake in refusing to discuss what it was planning with teachers before bringing in legislation, which Judge Griffin ruled was much more sweeping than needed to accomplish the province’s stated goal …”
    Premier Christy Clark – an unabashed fan of REAL MILK – can and WILL heed that reasoning, then apply it to the raw milk issue, so as to come off as a concilator = a states-woman = what politicians are, at their best.

  12. Karen Selick

    Gordon Watson: You weren’t there, and you have heard only a second-hand description of what I argued, so don’t go saying that I “misrepresented” what the Morgentaler case was about.

    The difficulty that Michael Schmidt has to overcome is how to get from the argument that consumers have the right to control what goes into their bodies to the argument that this gives Michael the right to produce the milk for them.

    I drew the analogy to the Morgentaler case because it was a case where the person charged with the offence was NOT the same person whose constitutional rights were being asserted. It was the women whose rights the court was upholding, and Dr. Morgentaler was simply the agent to provide what the court said they had a right to.

    In the raw milk case, we argued that it is consumers who have the right to consume raw milk, and Michael Schmidt is the agent to provide them with it.

    My argument had nothing to do with abortion.

    Please don’t YOU misrepresent what I said.

  13. Karen Selick

    I’ll just add that Gordon Watson’s strategy of invoking the property rights clause in the Canadian Bill of Rights seems doomed to failure. While the Bill of Rights does include “the enjoyment of property” as a fundamental right in section 1, that is not the end of the story.

    Section 2 of the Bill of Rights then goes on to say that “every law of Canada” must respect the fundamental rights unless expressly overridden by “an Act of Parliament”. This makes it clear that the Bill of Rights applies only to federal legislation. The Milk Act in B.C. is provincial legislation. The Bill of Rights doesn’t touch it.

    Furthermore, section 1 of the Bill of Rights contains a “due process” clause. One historical interpretation of “due process” is that so long as the legislation has been duly passed and a person is entitled to a fair trial, it can override any of the fundamental rights.

    Furthermore, there are many case precedents where the property clause of the Bill of Rights has been considered and dismissed as ineffectual. See, for instance, the Supreme Court of Canada’s 2003 decision in Arthurson v. Canada, here: http://www.canlii.org/en/ca/scc/doc/2003/2003scc39/2003scc39.html

    Gordon, I will be the first to admit that there are lots of stupid and venal lawyers out there, but why you choose to pick on me–one of your allies–is beyond me. I guess it’s another one of your strategies that I have “blundered into” or have “let you down” by not understanding.

    (You can read the Bill of Rights here, incidentally: http://www.efc.ca/pages/law/canada/BillofRights.html)

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