Michael Schmidt launches an appeal of his convictions on raw milk offenses

From Karen Selick, litigation director of the Canadian Constitution Foundation:

Michael Schmidt with supporters following his sentencing last month in Newmarket.

COURT OF APPEAL FOR ONTARO

B E T W E E N:

HER MAJESTY THE QUEEN

(Respondent)

- and –

MICHAEL SCHMIDT

(Applicant)

NOTICE OF MOTION FOR LEAVE TO APPEAL

PURSUANT TO S. 131 of the

PROVINCIAL OFFENCES ACT

TAKE NOTICE that a motion will be made before the presiding judge at Osgoode Hall, 130 Queen Street West, Toronto, Ontario on Friday, January 20, 2012 at 10:00 a.m. or as soon after that time as this motion can be heard, for an order under s. 131 of the Provincial Offences Act granting leave to appeal from the judgment of Justice Peter Tetley given on September 28, 2011 at Newmarket, Ontario, allowing, in part, the appeal by Her Majesty the Queen from the judgment of Justice of the Peace P. Kowarsky given on January 21, 2010 acquitting Michael Schmidt on charges of:

  • Operating a plant without a licence, contrary to ss. 15(1) of the Milk Act, R.S.O. 1990, Chapter M-12
  • Selling or distributing unpasteurized milk, contrary to ss. 18(1) of the Health Protection and Promotion Act, R.S.O. 1990, Chapter H-7
  • Selling or distributing unpasteurized milk products, contrary to ss. 18(2) of the Health Protection and Promotion Act, R.S.O. 1990, Chapter H-7,

and from the judgment of Justice Peter Tetley given on November 25, 2011 regarding the sentence for the above-noted offences.

TAKE NOTICE that the applicant will also seek an extension of time for this motion should it prove necessary.

THE SPECIAL GROUNDS FOR LEAVE TO APPEAL ARE:

  1. The applicant was acquitted at trial but has now been convicted on appeal.
  2. The interpretation of the relevant sections of the Milk Act and the Health Protection and Promotion Act have never previously been considered by a court in the Province of Ontario.
  3. The judgment introduces uncertainty into the law, making it impossible for individuals who are similarly situated to the applicant to determine whether they are breaching the law or not.
  4. The judgment personally affects approximately 150 Ontario individuals or families who believed themselves to be in a contractual relationship (referred to in the proceedings below as “cow-sharing”) with the applicant Michael Schmidt, which relationship purported to give them certain rights to property that are now placed in limbo as a result of the judgment.
  5. There are several hundred other Ontario residents who are known to belong to other cow-sharing programs similar to that of Michael Schmidt’s, whose rights are also affected by the judgment.
  6. Thousands of Ontario residents are either current or would-be consumers of unpasteurized milk to whom the interpretation of the aforementioned statutes has significant importance for health reasons.
  7. The interpretation of the word “distribute” in the aforementioned statutes potentially affects approximately 6,000 dairy farmers in Ontario, while the interpretation of the word “plant” potentially affects every Ontario householder and restaurateur.
  8. The case involves constitutional issues pertaining to the interpretation of “security of the person” under s. 7 of the Canadian Charter of Rights and Freedoms, including the right of an individual to determine what foods and beverages he or she puts into his or her own body; and as such, the issue is of potential interest to all Canadians because it affects their daily lives.
  9. The case involves the interpretation of the word “liberty” under s. 7 of the Charter and challenges the restrictive and highly subjective interpretations which Canadian courts have hitherto placed on that word; as such, the issue is of potential interest to all Canadians.
  10. The case involves a constitutional claim of discrimination under s. 15 of the Charter on the basis of residence, and is therefore of potential issue to all Canadians.
  11. The Premier of Ontario personally expressed his view of the importance of this case prior to the appeal below, saying that he had a “responsibility to take this to a higher court and give the judge there an opportunity to speak to this.”
  12. The case has received wide publicity in all major media and has demonstrated itself to be of great interest to the Canadian public.

THE GROUNDS FOR APPEAL ARE:

  1. The learned judge erred by denying the accused natural justice and a fair, impartial appeal hearing, and in particular by:
  1. Relying upon numerous purported grounds of appeal which were not advanced by the appellants below (i.e. the prosecutors) either in their factum or in oral argument and which the applicant therefore had no opportunity to address; and
  1. Conducting his own legal research subsequent to the appeal hearing and relying upon extensive jurisprudence which had not been referred to by any of the parties, without notifying counsel or providing them with an opportunity to make response thereto.
  1. The learned judge erred by failing to apply proper rules of statutory interpretation to the word “distribute” as used in the Health Protection and Promotion Act, and in particular:
  1. By failing to consider the definition of “distributor” contained in the Milk Act, a statute which is in pari materia with the Health Protection and Promotion Act;
  1. By failing to apply the plain and ordinary meaning of “distribute” which connotes multiple recipients rather than a single recipient; and
  1. By failing to interpret “distribute” in a manner consistent with the acknowledged principle, applied routinely in Ontario, that small gifts of unpasteurized milk made by farmers do not contravene the law.
  1. The learned judge erred by failing to apply proper rules of statutory interpretation to the word “plant” as it is used in the Milk Act, and in particular:
  1. By failing to look at the technical statutory definitions of “plant” and “processing” contained within the statute itself; and
  1. By failing to consider the wider consequences and impact on Ontarians of applying a broad, rather than a restrictive, interpretation of those terms.
  1. The learned judge erred on questions relating to the law of contract, and in particular:
  1. He failed to comprehend and apply the nature and effect of contracts of agistment;
  1. He gave undue weight to the purportedly defective formalities of the cow-sharing contract. rather than focusing on the substance; and
  1. He concluded that the contracts between Michael Schmidt and cow-share members were essentially shams, without taking into account the jurisprudence on the subject of sham contracts and in the absence of the type of evidence that would have been necessary to prove that the contracts were shams.
  1. The learned judge erred in holding that Mr. Schmidt did not have standing to advance constitutional claims on behalf of raw milk consumers, and in particular:
  1. He contradicted his own order of December 17, 2010 which explicitly permitted Mr. Schmidt to advance constitutional challenges on behalf of raw milk consumers James McLaren and Eric Bryant;
  1. He failed to apply the correct test for standing, namely the principle that no-one may be convicted, either of a criminal or a regulatory offence, under a law which is unconstitutional;
  1. Even in applying his own erroneous test for standing, he failed to apply it appropriately to the case before him by holding that consumers of raw milk have other more reasonable and effective ways to challenge the statutes; and
  1. He conflated the concept of an individual’s standing to bring a matter before the court with the availability of a constitutional remedy.
  1. The learned judge erred in failing to give a large and liberal interpretation and application to the concepts of “liberty” and “security of the person” under the Charter.
  2. The learned judge erred by failing to apply the principle that decisions of fundamental personal importance engage an individual’s liberty interest and in failing to consider the evidence that Mr. Schmidt meets this test.
  3. The learned judge erred in failing to find that the exposure to ruinous financial penalties are “true penal consequences” which engage an individual’s liberty interest and in failing to consider the evidence that Mr. Schmidt meets this test.
  4. The learned judge erred in failing to find that Mr. Schmidt’s liberty was at stake by concluding that “the prospect of a jail term arising in this matter is extremely remote,” when in fact the prospect of a jail term for Mr. Schmidt is highly probable.
  5. The learned judge erred in failing to find that the rights of individuals to determine what foods and beverages they consume falls within the ambit of “security of the person”, and in failing to consider the evidence that Mr. McLaren, Mr. Bryant and other cow-share members met this test.
  6. The learned judge erred in failing to find that the impugned legislation, which infringes the section 7 rights of both Mr. Schmidt and consumers, does so in a manner that is not consistent with the principles of fundamental justice, since it is both arbitrary and overbroad.
  7. The learned judge erred in failing to comprehend the overall scheme of the Charter, as demonstrated by paragraph 96 of his decision, thereby rendering all of his Charter-related reasoning suspect.
  8. The learned judge erred in failing to consider that the purpose of the Health Protection and Promotion Act, which includes “the promotion and protection of the health of the people of Ontario” should be interpreted in a manner that will permit James McLaren, Eric Bryant and other cow-share members to obtain the health benefits which they have observed raw milk to provide them with.
  9. The learned judge erred in failing to find that the distinction between on-farm and off-farm residency was an analogous ground for a complaint of unequal treatment under s. 15 of the Charter and that the statutes discriminate contrary to the Charter.
  10. The learned judge erred in failing to appreciate the law on “reading down” statutes to ensure that their interpretation conforms to the requirements of the Charter, as a result of which he concluded that no remedy would be available to consumers who established a constitutional right to acquire raw milk, instead of concluding that the impugned legislation should be interpreted to permit cow-share agreements, in order to ensure those consumers’ rights.
  11. The learned judge erred in imposing a sentence in an amount which the evidence disclosed that the applicant could not possibly pay, and in assuming that other people would pay the fine on behalf of the applicant.
  12. Such further and other grounds as counsel may advise and this honourable court permit.

IN SUPPORT OF THIS MOTION THE APPLICANT RELIES UPON THE FOLLOWING:

  1. Provincial Offences Act, section 131 and other relevant sections
  2. Rules of the Court of Appeal in Appeals under the Provincial Offences Act, O.Reg. 721/94, sections 3 and 7
  3. The documents and transcripts that will be filed with the motion record pursuant to rule 3(9).
  4. Affidavit of Christopher Schafer, to be served with the motion record.
  5. Such further and other evidence as counsel may advise and this honourable court permit.

THE RELIEF SOUGHT IS:

An order granting leave to appeal from the judgments of Justice Peter Tetley dated September 28, 2011 and November 25, 2011.

The estimated time for the hearing of the motion is 3 hours.

The applicant’s address for service is:

Karen Selick, LL.B.

Barrister & Solicitor,

The Canadian Constitution Foundation

110 North Front St., A-3, Suite 320,

Belleville, ON

K8P 0A6

Phone: 888-695-9105 ext. 104

Fax: 888-877-2154

The Applicant’s address is:

Michael Schmidt,

R.R. # 1,

Durham, ON

N0G 1R0

DATED AT BELLEVILLE, ONTARIO this 15th day of December, 2011

_________________________________________

Karen Selick

Counsel for the applicant Michael Schmidt

To: Registrar,

Court of Appeal for Ontario

130 Queen Street West

Toronto, Ontario M5H 2N5

And to:

Mr. Michael Dunn & Ms. Shannon Chace,

Counsel for Her Majesty the Queen

Attorney General of Ontario

Constitutional Law Branch

4th Floor, 720 Bay Street,

Toronto, ON M7A 2S9

Fax: 416-326-4015

Her Majesty the Queen v. Michael Schmidt

Respondent Applicant

Court File No.

 

 

COURT OF APPEAL FOR ONTARIO

Toronto, Ontario

NOTICE OF MOTION

FOR LEAVE TO APPEAL

Karen A. Selick

Canadian Constitution Foundation

110 North Front St., A-3, Suite 320

Belleville, ON

K8P 0A6

Phone: 888-695-9105 x. 104

Fax: 888-877-2154

kselick@canadianconstitutionfoundation.ca

LSUC # 17591W

Solicitor for the Applicant

 

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33 Comments

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33 responses to “Michael Schmidt launches an appeal of his convictions on raw milk offenses

  1. BC Food Security

    Go Karen !
    Wonderful , Superb , Excellent !
    Made my day !
    Thanks for sharing !

  2. Winifred

    Truly interesting.
    And I agree with BC Food Security…Thank you for sharing.
    SA Winifred

  3. Kristi

    Cheering you on and anything else that might help! Thanks for posting this. Many prayers are with you.

  4. What does the inbread, genetically challenged royal family have to do with justice or a legal system?

    Doesn’t that sort of imply that the fix is in an you really get no justice at all?

    Good luck Michael but I think any person with a brain cell should find this insulting.

    • BC Food Security

      I noticed that too. It is amazing is it not ? I said already Canada has its own unique fragrance of insanity . How is that we can not as a nation get it together to also remove the queen of England’s face from all our coins and some of our banknotes as soon as possible ?

      • All that aside, the Royal Family still has an influence in Canada, and one that might be exploited, since the Queen herself is a fan of raw milk, and it is reputed that her grandson brought his own supply with him during a recent visit, knowing he could not obtain it in Canada.

      • It’s my understanding Jan that the Royals being fully aware of what eating the MSG, GMO’s, pesticides, etc. in the food supply can do to a person – have all of their food organically grown on their estates and often bring all of their own food when they travel.

        God forbid they eat the poisonous garbage that the commoners are fooled into to eating by their government protective agencies.

  5. rainhard pitschke

    Of course I agree with joe and BC. Michael vs ‘Her Majesty….asking ‘her’ if it’s allright to continue disagreeing with her. What’s next Michael? Set yourself on fire on her steps? I see another man on the links to the side here. Kevin Annett. For those that don’t know, he’s busy digging up children killed intentionally by direct order of this ‘woman’ and her ‘subjects’. He’s trying to bring her and her owner, the ‘singing rat’ of the Vatican to face crimes against humanity charges. Gee whiz !….there’s a worthwhile constitutional human rights case to help with Karen….interested?…No, you’re not. It’s too vast for you to even comtemplate and threaten’s everything. Yes, it’s stupid of me to talk like this…I’m just like Michael. Got a match? You may all think I want to burn down the entire system, but it’s not true as I keep trying to point out. I believe in law. Justice, fairness, freedom to be different. How is that possible if one has to ‘seek permission to appeal’?…”Excuse me sir…um….can I have your permission to ask you to stop beating me?”

    • rainhard pitschke

      ‘She’ holds title and the ‘deed’ to this continental landmass under authority of the ‘lord’ as written by other ‘legalists’ who wrote ‘the bible’. Pirate and ‘sleight of hand’ symbol manipulators, partners who work for the grandest liar of all…the money and compound interest inventor who…”cares not who makes what laws..if I control the flow of commerce”.

      • There is quite a scam going on rainhard we are given the illusion that people have input into the system and that there is justice.

        Was there not a recent incident in Canada where the Queen over-road the parliament and the people of Canada? I believe it was Gothe that said “None are more hopelessly enslaved than those that think that they are free”
        If the Queen runs the show whenever she wants – is not any illusion of freedom a delusion?

        Where are the juries of your peers? Does Canada even have such that thing? The US does not even guarantee you a trial and jury in many many cases any longer. Where is the justice and checks and balances when an employee of the state makes decisions for the state?

        You don’t even have a right to hire who you wish to defend you in court. You can only choose from the licensed, over priced, and controlled monopoly called the BAR. Is this justice?

        If you do get a jury trial, is the government school educated jury reminded of their centuries old duty of jury nullification? Or are people from FIJA trying to provide this critical information arrested on false trumped up charges? http://fija.org/

        I submit that our entire legal and justice system is merely an illusion. It has only enough substance to fool those that are not paying attention in the first place. Learned Judges my behind. More like illegitimate tyrants is my observation. “The king has no clothes” as the little boy said.

      • Where are the “grand juries”? Citizens used to be able to start independent so called grand juries and investigate government corruption.

        Now they are subverted and controlled by the prosecutors office. They have in effect ceased to exist. All of the few tools we had to control an out of control government have been neutered and subverted.

        Juries, jury nullification, right to legal defense of your choice, and the grand jury. Four tools to control a tyrannical government and all 4 have been crushed by that same government.

        The government school, educated sheeple sleep while the fox is in the hen house.

  6. Just wanted to mention that even though this document says that the hearing date will be January 20, that was necessary to comply with the court rules. Counsel have agreed that it will actually be heard on April 25.

  7. Annie Bartley

    When dealing with the insane, one must be open to their world… They cannot understand anything else. So sad they think of themselves sovereign only unto God and have no other loyalty not even to their own species.

  8. rainhard pitschke

    I’m sorry. I’m not being helpful here. I believe in Michael and all of you supporting him. That means I have to respect how he’s chosen to go about this. I respect Karen for trying to work within the system too. Most of you know more than doctors about what is healthy. It’s your practice! I’ve talked to lawyers, bankers, contractors who know equally little about the origins and purposes of their practice. But they all insist I don’t understand….or am just being negative. When I look out my window this morning at the rising sun on a blue sky…..all I see is the two thick horizon to horizon chemtrails….and I want to cry. I see families homeless, young people turning to crime, old people buying lottery tickets…austerity and fear intentionally created. I ask myself all the time…..am I choosing to see this or is it really so? I research and find it is so. What is the best way to contribute? My chosen practice and ‘learning curve’ is with the sovereign material. I feel it’s incumbent on the free to claim it. I urge you all to file individual lawsuits instead of ‘paying ransom’ and learn how to defend yourselves in the process. Law is simple and free too. The costs of filing cannot be charged for either. That would be inequality before the law.
    I believe in love….it makes you act fearlessly and with absolute conviction. It also brings the recognition of ‘fool’s gold’….pasturized.

  9. rainhard – I don’t think that exposing the corrupt system for what it is, does any injury to Michael or Karen. They have very few options considering the system is the way it is, and they are pursuing what they see to be the best of some not very good options.

    What you see as not being helpful is really the only hope in the long run. To expose the flaws in the system, and educate enough people to make changes in the system. This will probably not help Michael today, but perhaps it will bless his children and grand children.

    • rainhard pitschke

      Thanks joe…no..it’s something that must be done. I just re-read some of my posts and see how hard I’m poking and it’s not against these people at all. I also feel funny that I’m here, have no real concern for milk….lol…..hope to be able to try it though! Also, Michael rarely responds….and of course Karen never….and I do wish some…..ahem….action. Seeing how high profile this case is I realize how exposed these kinds of comments make me too. Sheesh! I nearly blew my coffee out of my nose at the cafe this morning reading the front page of the ‘Star’….The pope is going to ‘canonize’..?…bombard with iron balls I guess…..a Mohawk young lady! Hours after I posted the Kevin Annett (Mohawk) child murders! They must have got on the horn quick for damage control. Fun with paranoia….I’ll probably die laughing.

  10. BC Food Security

    I am not an expert but my understand is that the Queen is definitely not the one in charge in some little castle in London . She is simply a front and figurehead for an elite group of international bankers who operate in the’ City of London’. The “City of London” is a play on words much like the Federal Reserve has nothing to do with the Federal Government or the people) . It has nothing to do with the city or London. It is a separate and non-democratic nation state. If you look up the ‘ City of London’ in Wikipedia even there they will tell you that corporations in “The city of london” have more votes than people ! Literally ! I hope this is not a taste of things to come for the rest of the world ? That is why I believe a massive change of consciousness will be simultaneously required. One way or another the masses have to be woken up and educated about the ridiculousness of the current setup. We can not underestimate the power of the grassroots to eventually overturn this situation . But first we have to expose it for what is : A Grand Lie . Then we have to work hard to offer a better alternative i.e barter currency , more power to regional or local governments, making cooperatives more commonplace, growing as much of our food as possible locally , and generating as much of our power locally as possible etc.

    • Look into what I said about the Queen over ruling everyone in Canada. She has done this recently. We have a strange phenomena on the Internet though that George Orwell coined a term for – called the memory hole. It does exists and articles like this may be hard to find.

      Jesse Ventura’s film on fema camps went down the memory hole but are reappearing as some must have archived copies of it.

      http://naturalnews.tv/v.asp?v=CFB1CAFAADB65C1EF25BE43D7910BD27

      In the US they recently passed a copyright law to try and prevent things from coming out the the memory hole and reappearing.

      I have an issue with your choice of words BC.
      To me and our founders the term “democracy” is one of the most vile terms in the English language that anyone could ever utter.

      You can find this redefinition and elimination of words described in George Orwell’s 1984. This is certainly what is being done IMHO. You are programmed to use that vile word in place of the proper concept.

      • BC Food Security

        Joe : You take any word “Freedom, liberty, Justice, Democracy, Truth, Values, Family, Food , Milk , health , health care, treatment, cure,religion , God ” and you find almost always that the dark side has twisted and manipulated it until nothing is left of essence. That is why you also have to develop an intuitive or even “spiritual” undertanding about the issues simultaneous to a factual one . What do I mean ? If Michael Schmidt utters the word Freedom it has more “effect” or meaning (for most of us here at least ) than if ex-president Bush utters it . Same word but different effect and different intention . Space is too short here to elaborate further . We can not keep reinventing the English language just because the Illuminati Bankers and their cohorts constantly coopt words representing higher ideals. Instead we have to discern the circumstances where those words are being used and not apply a “one size fits all rule ” .

      • BC – ” democracy” is the redefined word. Democracy has always been a vile concept. A democracy is 2 wolves and a sheep voting on what is for dinner. I would not be so persistent if I did not see this psych-op as very dangerous. Using the word lulls us into thinking that our government was supposed to be a democracy. It was not. Or that a democracy is a good thing. It is not. A democracy works only for a short while and that is until the voters run out of other peoples money to steal and spend.

        Most of the fallacious logic on the raw milk issue is based upon the false presumption that we live in a democracy. It is one of the most dangerous concept and words that is in use today. Be very careful how you use it.

      • BC Food Security

        Joe : We don’t actually disagree. We are arguing shades of semantics only : To you the world is all black and white. To me it is all different shades of grey . The word “DEMOCRACY” has always sent shivers up my spine (in a negative sense) especially when I have heard an American politician utter it. That being said between friends and colleagues i know and trust I see the word as something fluid , evolving and changing . This implies personal responsibility i.e it is was what we all make of it. I am not sure that you understood what I said about “intention” ? One person may use a word or phrase with the intention to enslave and blind you. Another person may use the same phrase with the intention to free and inspire you. Again this is an overly “black and white ” explanation. The truth is that we all speak and act with a bundled of mixed intentions : some good and some not so good .

      • Thanks for the clarification BC. :-) I am pretty anal about some things and that word just grates on me because most of the people I hear using it actually believe in democracy and don’t know any better,

  11. deen

    Hi BC Food Security
    You make very good points.Please take a look at this link.It gives more insight into how far coporate control has gone .

    http://www.helladelicious.com/blog/stories-and-news/2011/11/deadly-monopolies-corporate-control-of-life-itself/

    • Deen I have not followed your links, but please be aware that a lot of this “corporate” hysteria is funded by the bankers to create an anti-capitalist movement which is exactly what the bankers want. The OWS movement was such a tool that was designed to further socialism as a tool to help solidify the NWO.

      If you think that we live in a capitalist system (we do not) you need to Google the fact that all 10 planks of the Communist Manifesto are in effect in both of our countries.

  12. thebovine

    New version now posted with some of what previously were bullets now replaced by numbers. Strange things happen on the way from a word processed document to a blog post. Some indents are still MIA.

  13. If any of you are interested in changing the God awful justice system we now have I invite you to look at the following videos and afterward the whole site.

    http://fija.org/document-library/videos/ron-pauls-at-issue/

    http://fija.org/document-library/videos/red-beckmans-jury-training/

    We can not tolerate the in-justice system that we now suffer under for one more day.

  14. The PDF version with full formatting is posted at the CCF website, here: http://www.canadianconstitutionfoundation.ca/toc.php/52

  15. Pingback: Raw milkman Michael Schmidt files for appeal | Aprons & Icons | torontolife.com

  16. rainhard pitschke

    Yuk, yuk Joe in Misery. Check this out for your anal problem. Instead of having your ‘tongue in cheek’ maybe it’s between cheeks….lol ! The ‘spell’ is cast by them right from the beginning in the ‘Go-spell”. In this video, mark goes a bit to far maybe, but as us anti-grammarians are learning…words control all the ‘liens’. Karen and Michael are playing this ancient ‘go-nowhere-slowwwwwly-by-installments’ drama out. (stay tuned for next episode..not Jan. 20 but in April something) I’ve recovered from my temporary unsanity bout yesterday and am again in-sane and realize what a witch she is, and totally undeserving of any support or praise. She’s helping to ruin a farmer and playing him like a sports fisherman…for a trophy. “Bullets instead of numbers”?????Idiots. Udder idiots…yuk, yuk. Listen to mark who is free through the only method out of the clutches of these pirates… http://youtu.be/qfN0EQqdWtQ

  17. Pingback: Food Rights Network » Raw Milk in the News

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