1. Did Justice Tetley usurp the role of prosecutor (Michael Schmidt appeal)

Justice Tetley was the last judge to rule in the Michael Schmidt raw milk case. He found Michael guilty on several counts and sentenced him to pay a fine.  Michael Schmidt will be at Osgoode Hall July 26th seeking leave to appeal Justice Tetley’s ruling on his raw milk case. The following is one of several points of law being raised in the appeal, and is from the Appellant’s factum.

Michael Schmidt speaking about raw milk and food rights.

(ii) Questions of Law Alone

44. The following questions of law are raised in this appeal:

(a) Was the applicant denied natural justice and a fair hearing by the actions of Justice Tetley who in effect usurped the role of prosecutor in the appeal?

45. Justice Tetley addressed a substantial portion of his decision to grounds of appeal that were not advanced by the Crown either in its factum or in oral argument. It is improper for the judge to inject new issues into the case without giving the parties the opportunity to argue their respective positions. By doing so, the judge improperly assumes the multi-faceted role of both advocate and judge, and loses the appearance of a neutral arbiter. In R. v. Hamilton, the Ontario Court of Appeal clarified the judge’s role as follows:

“….Usually, the parties are the active participants in the process and the judge serves as a neutral, passive arbiter. Generally speaking, it is left to the parties to choose the issues, stake out their positions, and decide what evidence to present in support of those positions. The trial judge’s role is to listen, clarify where necessary, and ultimately evaluate the merits of the competing cases presented by the parties….

“Judges must be very careful before introducing issues into the sentencing proceeding….

“It is also important that the trial judge limit the scope of his or her intervention into the role traditionally left to counsel. 9”

9 R. v. Hamilton, [2004] O.J. No. 3252, at paras. 7, 33, 63‐65, 67‐72‐ 15 ‐

46. Where a judge does his own research after the parties have already argued the case, and then forms his conclusions on the basis of his own findings without giving the parties  the opportunity to respond, it is an error in law….”

Michael Schmidt’s court appearance will take place at the Ontario Court of Appeal, Osgoode Hall, 130 Queen Street West (at University), Toronto.  Court will start at 9:30 a.m.  Spectators are permitted.  People who wish to attend should be aware that they will have to go through security to enter the building.

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