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.
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.
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:
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.