Key legal points in the recent Ontario Regine v. Schmidt raw milk judgment

Many thanks to an anonymous academic researcher who contributed a helpful analysis of historical material which clarified the meaning and intent of the province of Ontario’s 1938 and subsequent milk pasteurization legislation. This research provided useful perspective in developing a successful legal defence against charges arising from the 2006 raid on Glencolton Farms. What follows is a summary of a few of the significant legal points arising from the judgement that was handed down January 21st in that case:

Michael Schmidt's wife Elisa, and son William, become the focus for media attention once news of the not-guilty verdict begiins to filter out of the courtroom on Thursday January 21, around noon.

On 21 January 2010 the court in Regina versus Schmidt held that Michael Schmidt,

* a qualified expert bio-dynamic farmer (praised by the court as a forthcoming and reliable witness who had been described in those terms, and was recognised as an expert witness, by the Health Protection Appeal Board, in its ruling  against him in 1994), who

* sold his cows to the milk drinkers;

* took all reasonable steps he could to protect the safety of the milk (the court held that the contradictory opinions of the experts for prosecution and defence were moot and observed repeatedly that there had never been any report of illness due to using these raw milk products);

* informed the cowshare owners that they drank the raw milk/consumed raw milk products at their own risk; and,

* provided the milk only to these knowledgeable, therefore not vulnerable, cow share owners; and further, in this regard,

* he did not advertise, therefore did not market the milk to the public. This was a private arrangement to care for the cows of informed cow owners and provide them with raw milk products from their cows.

Michael Schmidt even replaced a freestanding milk house with a built-on extension to the milking parlor, so there could be no concern about operating a dairy (to which milk is transported, etc.) in relation to relevant provincial legislation (though the judge dealt with that in a different way, considering that the astronomical penalties for unlicensed dairy operation could not reasonably be considered to apply justly to a small private bottling operation).

Hence, the court held, Michael was successful in staying within the law interpreted within a contemporary context and purpose, namely that of being enacted to protect the public, and all 19 outstanding charges were dismissed.

This also meant that the court had no need to rule on the defendant’s constitutional, Charter of Rights and Freedoms, Section 7, challenge to the provincial legislation.

Apparently the crown has 30 days from 21 January 2010,  the day the ruling was issued, to appeal. If they were to appeal it seems reasonable to suppose that they would then have to face the defence’s charter challenge, now augmented by a motion to intervene made on behalf of cow share owners and others in the public interest as well, by a lawyer present at the reading of the ruling and reasons for judgement, Karen Selick for the Canadian Constitutional Foundation. Ms Selick smiled, more and more, as the ruling was read.

The written judgement of Mr. Justice P. Kowarski is reasoned with many precedents and related facts researched by the learned justice. He read it with careful emphasis and intonation for two and a half hours to the packed courtroom in Newmarket. Near and at the end of the judgement he even included educative remarks which may prove helpful, about the defendant’s related contempt of court conviction for which as of this writing there is a fine (in the amount of $55,000) outstanding.

The judgement has been posted at as a .pdf file.

The court drew attention to the contrast between potentially or actually hazardous dairying, processing and marketing conditions for which the original legislation was offered as a preventive measure, and the current fact situation of modern quality control carried out conscientiously by and under the direction of a knowledgeable, indeed in this case expert, dairy farmer.

Kowarski J.P.’s reasoning highlighted a key difference between a strictly historical interpretation of the meaning and intent of the law, and an interpretation to contemporary judicial best practice standards. He said that “the law speaks” in the present and ought to be applied having regard for the current fact, law and societal, etc., context in determining how the plain meaning of the text of the statute ought (i.e., ought justly, fairly, accurately) to be understood as expressing the purpose of the legislation in the contemporary context of relevant law and jurisprudence on interpretation; of, to put it in other words, scientific knowledge and dairy technical practice, the state of contemporary society, and so forth.

Thanks again to researchers and everyone else who in different ways have helped to make a good difference.

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