“NEWMARKET, Ont. — A justice of the peace made critical legal mistakes when he found dairy farmer Michael Schmidt not guilty of distributing raw milk and cheeses last year, argued the Ontario government Wednesday in an appeal of the landmark case.
Ontario justice of the peace Paul Kowarsky erred in the January 2010 ruling when he threw out 19 charges related to the distribution, production and sale of raw milk against the Durham, Ont., farmer and cow-share operator, said Crown lawyer Alan Ryan.
It is illegal to market, sell, distribute or deliver unpasteurized milk or cream. Yet, it is legal to drink raw milk or use the raw milk to make cheese.
Canada is the only G8 country to ban the sale of these products, which some argue has greater health benefits than the available pasteurized milk.
The provincial government, along with the local Grey-Bruce Health Unit, told Ontario Justice Peter Tetley that Kowarsky’s decision is not based on legal reasoning, partly because the justice, who is originally from South Africa, did not have the required background because he was never a lawyer in Canada.
In the ruling, Kowarsky upheld the two pieces of legislation Schmidt was charged under in 2006 — the Health Protection and Promotion Act and the Milk Act — but still found the farmer not guilty of the offences because he only gave access to the raw milk to the joint owners of the cows and not the public at large.
These cow-share members were aware that the milk was unpasteurized.
About 150 families purchased $300 memberships from Schmidt for the partial shares in 26 cows he keeps at Glencolton Farms, located about two and half hours northwest of Toronto.
Schmidt’s lawyer, Karen Selick of the Canadian Constitution Foundation, countered by raising two constitutional arguments during the daylong hearing.
She argued her client was being denied his right to liberty because he’s not allowed to engage in his “life’s work” of biodynamic farming and health promotion. She also said denying Canadians their right to choose the food they want to eat, for health reasons, also contravenes with quality rights under the Canadian Charter of Rights of Freedoms.
“Individuals have a right to decide what to do with their bodies and what goes in their bodies,” she said. “So by forbidding people from getting raw milk, they are impairing some people’s health. Some people do better on raw milk.”
Selick called these charges based on a “crime that nobody complained about” and that “victims” were all willing knowing participants….”