Court File No. 939.12.0042
ONTARIO COURT OF JUSTICE
HER MAJESTY THE QUEEN
The Defendant, Michael Schmidt, has been charged by the MNR and the GBHU with various infractions against the HPPA and Milk Act. Accordingly the Defense provides the following arguments and submissions for consideration.
As was well stated by your honor, the matter before this court is the right of an individual against the role of government. The Defense would expound and suggest that it is a matter of the freedom of an individual, versus the opinion and dictates of a multitude, enforced by The Crown.It should be an inherent truth that the role of government is to serve and protect the public. This is well observed by considering the content of statute laws and regulations, as well as the titles of various public ministries and public offices.
The Defense recognizes that a sovereign society has the right to regulate the trade and commerce of raw milk, as it perceives necessary for the public good.
But does any government have the blanket authority to regulate anyone and everyone? Can regulations for the public good be imposed on two or more individuals coming to an agreement and understanding in their private capacity?
By contemplating the distinction between human rights and civil rights, natural law versus civil law, it becomes clear that, as a foundation, all individuals have inherent unalienable natural rights, including the right to life, liberty, and enjoyment of property; the right to contract, the right to choose, the right to associate, etc.
The limitation of freedom that always exists is that we do not have the right to trespass on the rights of others. This includes no trespassing on any person, be that the public or otherwise.
Where an individual adopts, or acts temporarily in any given legal capacity or status, inherently the rights, duties and obligations come there with or are attached there to. Accordingly, capacity refers, if you will, to a front, a façade, or a persona.
As testified to by the Crown witnesses, they were all acting as different persons. One may have been acting as an MNR inspector; another as an MNR officer; another as a public Health inspector. They all clearly referred to their capacity, and they were all acting.
In reference to Black’s law dictionary, acting is the holding of an interim position; serving temporarily.
And so, when one ceases to act in an official capacity does another legal capacity fill the void? What does it mean to act in one’s personal or private capacity? What does it mean to act as a member of the public?
In 550551 Ontario Ltd. V. Framingham, (1991) 4 O.R. (3d) 571, the court per Montgomery J. makes clear reference to the fact that individuals can act in varying capacities. It states: “If it was the intention of the legislature to engulf citizens in their personal capacity, outside a sole proprietorship, and outside the corporate veil, in what is little short of confiscatory legislation they must do so in clear unambiguous language.”
It is respectfully submitted that legal rights, duties, responsibilities and thus the freedoms and liabilities attached thereto depend entirely on an individual’s legal status or legal capacity. Accordingly the legal capacity or legal status of an individual is of utmost importance in matters to be adjudicated.
It may be interesting to observe that, on the cover for the Health Protection Appeal Board Ruling, reference is made to both Michael Schmidt and Michael Schmidt operating as Glencolton Farms. Is this referring to Michael Schmidt acting in his personal or private capacity, and Michael Schmidt acting in his capacity as Glencolton Farms?
The Defense puts it before this court that the Defendant is and was, at the time of the alleged infractions, acting in a private capacity, engaging in private contract with other individuals, who were also acting in a private capacity. And so what mandate does a government have to interfere in such a private arena?
Crown witnesses Andrew Barton and Christopher Munn testified that they, acting as Public Health Inspectors, had no jurisdiction to go into, inspect or interfere with what goes on in a private dwelling. A common phrase speaks of the same thing: The government has no business in the bedroom. It is respectfully submitted that a distinction between private and public does anyway exist. This was clearly understood by both health inspectors.
Black’s Law Dictionary defines Private as: Affecting or belonging to private individuals, as distinct from the public generally. Not official; not clothed with office. People v. Powell, 280 Mich. 699
And Public is defined as: Pertaining to a state, nation, or whole community; proceeding from, relating to, or affecting the whole body of people or an entire community.
For additional clarity, the trial Judge in R. v. Imperial Tobacco Products Ltd. stated: “Public means that vast multitude which includes the ignorant, the unthinking, and the credulous.” (see 9 C.P.R. (2d) page 66)
The Defendant testified that there was no advertising to the Public, and no evidence was presented to suggest that there was. In fact Andrew Barton’s testimony edified this, where he testified to the fact that there was no signage at the road, or anything leading him to believe there was a store.
As was testified to by Victor Miller and the Defendant, while under oath, the refrigeration unit that stored the raw milk dairy products consisted of solid stainless steel doors. The products were not on display for the general public. Moreover, as testified to by Susan Atherton, the sign on the door specifically said “Members Only”.
It is respectfully submitted that the cow-share program was never tendered as an offer to the public, and the absence of any material evidence to the contrary edifies this fact.
As confirmed in testimony by Eric Bryant, and as stated by the Defendant under oath, the cow share members are informed consumers, who knowingly, willingly and freely entered into private contract.
Further, it is an undisputed and accepted fact that there was no labeling on the glass jars that contained the unpasteurized milk. It is respectfully submitted that this simply edifies the point that the individuals obtaining product must necessarily have an understanding of its contents, and is therefore an informed consumer.
However, by virtue of the fact that the Crown seized and disposed in landfill the content of numerous glass jars, it is evident the Crown’s assumption was that the content was the property of the Defendant, and intended for sale or distribution to the public. However, as was made evident to the Court, the product was legally the property of the cow-share owners, and subject merely to delivery.
Also of interest is that, as part of the questions from Officer Dan Harries when the Defendant offered a voluntary statement, it was specifically asked, twice in a row, if the Defendant was serving the public. Did they in fact recognize the inherent limits of their jurisdiction?
At the core of this trial is a call to the judiciary to recognize and protect, from government and all others, an individual’s inherent inalienable private rights, including the right to contract, right to choose, right to religion, right to associate, etc. It is respectfully submitted that there can be no law making, rules, or regulation so construed as to infringe on these rights.
The Defense knows of no law banning the consumption of raw milk. In deed, the comment of Dr. McQuigge, Chief Medical Officer of Health of Grey Bruce Health Unit, as at 1994, as found on page 104 in the transcript of a Health Protection Appeal Board Ruling edifies this point.
Chairman Stoltz states: I guess what I’m trying to figure out is whether the Health Unit might consider issuing an order against a so-called farm family consuming its own milk on the basis of a health hazard.
To which Dr. McQuigge responds: Under the law presently we cannot do that.
The Defense is well aware of the public laws in place, which are clearly designed for the purpose of protecting the public. The primary means of doing so is in restricting the sale and distribution of raw milk to the public.
The Defense realizes that “an agreement of private persons does not derogate from public law”, and “there is no doubt that the rights of others (not party to the agreement) cannot be prejudiced by private agreements.” However, where a private agreement does not trespass on the rights of others, including the public, and considering that “no one should interfere in another’s business that does not at all concern him”, it is respectfully submitted that, The Crown has no standing to interfere or intervene in private contracts, so long as the public is not affected.
Freedom of Religion
It is a self-evident truth to the Defense that a Constitution and a Charter are both legal documents, which may form part or the whole of a social contract. Wherein freedoms may be granted by that State to the body corporate that constitutes the public, freedom of religion is in deed a matter of legal rights, and thus possibly the subject of a Charter challenge.
It is respectfully submitted, however, that human rights do not stem from legal documents, contracts, or the like. They are inherent unalienable rights to all individuals. In so far as an individual is not acting in a capacity subject to the limitations of certain contracts, social or otherwise, there can be no law making that would abrogate, abridge or infringe on the right to religion of choice.
As was testified to by Eric Bryant, appearing in his private capacity, it is self evident that he, as much as anyone else at different levels, has a personal conviction about the consumption of raw milk. It is respectfully submitted that the limits of government to regulate an individual’s affairs is limited to those over whom it has jurisdiction. In the alternative, denying one’s inherent unalienable human right to freedom of religion would amount to a trespass, and tyranny.
In relation to the 3 charges stemming from the 1994 Order issued by the local Health Unit, the Defense believes it has made its position clear. The order was clearly directed to Michael Schmidt in his capacity as operator of the premises at Lots 38, 39 and 40. While at that time the Defendant anyway resided at Lot 44, and there operated a dairy farm, the Defendant has complied with the order. The order was not directed to the Defendant in his capacity as operator of Lot 44, or any other capacity. In 1994, the health hazard was deemed to exist at Lot 39 Concession 2, and not Lot 44 Concession 3.
If considering an example, where an individual operates 5 restaurants with the same name, and a Health Unit determines that there is a health hazard at one of them, should the order, though directed to only one premise, be assumed to apply to all 5?
In so far as a given area, be it a kitchen, a typical milk room, or a designated sanitary room, may be deemed a plant, can only be arbitrary. It is respectfully submitted that, in so far as the government can impose rules and limitations to what constitutes a plant, must be therefore be considered with its purpose.
In this case, it is respectfully submitted that, where the Defendant was not serving the public, but rather simply meeting the obligations of a private contract, government regulations do not apply. For further consideration, the Defense would like to direct this court to consider the principle that he who destroys the means destroys the end. As such denying the Defendant the ability to employ a sanitary room, however labeled or defined, for the purpose of meeting the terms and conditions of private contractual agreements, would amount to trespass and tyranny.
Selling Cheese to Susan Atherton
Whereas the Defendant testified that he merely gave Susan Atherton the cheese, and whereas Susan Atherton testified that she bought the cheese, it effectively amounts to a matter of credibility. The Defense would like to highlight that, where Susan Atherton was anyway denied raw milk because she was not a cow share member, to believe she was then permitted to pay for the cheese would mean the Defendant made an exception to the rule. If such were the case, it is open to speculation what the motive might have been. Are we to assume the Defendant’s motive was a monetary gain from the $3.20 sale? The Defense believes it is also worthy to note that the explicitly clear policy of the Defendant that, for want-to-be cow-share member, they may try a sample prior to commitment.
The Defense would like to bring to the Court’s attention that the Crown has not provided evidence of probable cause that would give rise to the investigation. The Defense is absolutely confident that, in light of Christopher Munn’s testimony, the real probable cause was probably predatory. Moreover, the Defense would further venture to say that the existence of a health hazard is somewhat of a smoke screen to the commercial interests in the government-licensed monopoly, called the DFO