3. What is the meaning of the word “distribute” in the Health Protection and Promotion Act (HPPA)?

This is part 3 in our countdown to Michael Schmidt’s court of appeal appearance Thursday July 26th at Osgoode Hall (see details at bottom). Legal documents often redefine the meanings of common words to be other than what they are usually understood to be. Whatever reasons may be behind such practices, these redefinitions can easily lead to a lack of transparency.

Farmer Michael Schmidt at a food freedom event

In Michael Schmidt’s case, much hinges on the meaning of the word “distribute”, which, for once, is not clearly defined or redefined in meaning for purposes of the HPPA. From the Applicant’s Factum.

  • According to Sullivan on the Construction of Statutes:

“Statutes enacted by a legislature that deal with the same subject are presumed to be drafted with one another in mind, so as to offer a coherent and consistent treatment of the subject.  The governing principles was stated by Lord Mansfield in R. v. Loxdale:

“Where there are different statutes in pari materia though made at different times, or even expired, and not referring to each other, they shall be taken and construed together, as one system, and as explanatory of each other.”

  • Section 18 of the Health Protection and Promotion Act makes it illegal to “distribute” unpasteurized milk, without defining the word “distribute” or any related word. However, the word “distributor” is defined in the Milk Act, and the two statutes are in pari materia with each other.  Indeed, section 18 of the HPPA refers to the Milk Act.
  • At trial, Michael Schmidt was acquitted of being a “distributor” without a licence under the Milk Act.  The Crown elected not to appeal that acquittal.
  • The applicant submits that he could not have been found to be a “distributor” under the Milk Act pursuant to the following chain of definitions:
  • “distributor” means a person engaged in selling or distributing fluid milk products directly or indirectly to consumers; (Milk Act, section 1)
  • “fluid milk products” means the classes of milk and milk products processed from Grade A milk and designated as fluid milk products in the regulations; (Milk Act, section 1)
  • “Grade A milk” means milk designated as Grade A milk in the regulations; (Milk Act, section 1)
  • “Milk that complies with and is produced and stored in compliance with Regulation 761 of the Revised Regulations of Ontario, 1990 is designated as Grade A milk.” R.R.O. 1990, Reg. 753, s. 2 (1).
  • In other words, it would have to be proven that the applicant complied with Regulation 761 in order for him to be a “distributor” within the Milk Act or to have “distributed” within the HPPA, since those statutes are in pari materia with each other.
  • According to Black’s Law Dictionary, the word “distributor” means:

“A wholesaler, jobber, or other manufacturer or supplier that sells chiefly to retailers and commercial users.”

59. Justice of the Peace Kowarsky concluded at trial (M.R. Tab 4, at paragraphs 121-122) (correctly, the applicant submits) that the prohibitions on distribution in section 18 of the HPPA were intended by the legislature to apply to public, commercial enterprises, and not to private arrangements such as the applicant’s.  If the word “distribute” were interpreted as Justice Tetley did on appeal, to include a single instance of raw milk being handed to an individual, it would catch many instances of such actions which the legislature surely could not have intended to include:  for instance, where a cow is co-owned by two persons and one of them hands a glass of raw milk to the other.  Since the application of “distribute” must necessarily be restricted in order to avoid this obvious mis-application, the appropriate place along the continuum of possible interpretations is the dividing line between public, commercial enterprises and private co-ownership arrangements such as the applicant’s.

From Lawyer Karen Selick (CCF litigation director, and author of the above) via Facebook: if people would like to show their appreciation for what the Canadian Constitution Foundation is doing for Michael Schmidt and food freedom, their renewed financial support would be welcome. This case takes a lot of our resources to handle. Donate here:http://www.canadianconstitutionfoundation.ca/toc.php/40

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.

1 Comment

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One response to “3. What is the meaning of the word “distribute” in the Health Protection and Promotion Act (HPPA)?

  1. Gordon S Watson

    in British Columbia, the distinction is made clear at the outset of the Milk Industry Act RSBC, where the term “producer” is differentiated from the term “vendor”. Then, the Act says it applies to all “vendors”, but not necessarily to “producers” Point being : every one who milks one single animal caught by the Act = cow / sheep / goat / water buffalo! = is a producer. But they’re not all vendors, are they? … NO, not unless the milk they get is offered for sale.
    Can a person “sell” to him-self? Can a person “distribute” to himself?

    fortunately, in BC, we have the Report of the Royal Commission on milk marketing, in which the Commissioner wrote that ‘there must always be a way for those who want raw milk, to get it’.
    It is beyond argument that, if raw milk was being produced and supplied, in British Columbia in 1954, perfectly legally and without incident of illness, then it can be done a half a century later, under much more informed conditions. The rationale pretended for outlawing the distribution of raw milk, ie, ‘safety concerns” is revealed as entirely bogus. Across Canada, the prohibitions against supplying raw milk were not implemented to remedy any real wrong, they were imposed as prior restraint on a free market

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