Sheep-napping Preliminary Inquiry Starting February 17th for Michael Schmidt, Montana Jones and CFIA

Readers of this blog are probably aware that Michael Schmidt will be in court yet again in February, 2015—this time, defending against criminal charges pertaining to the disappearance of sheep from the farm of Ontario sheep breeder Montana Jones.  Montana also faces criminal charges. 

What’s Happening in February, 2015?

View from the stage at a fundraising concert for Montana Jones at her farm in the summer of 2012.

The preliminary inquiry is scheduled to take place from February 17 to March 1, inclusive.  A further week has now been added:  April 27 to May 1. That’s fifteen full courtroom days of preliminary inquiry.

The purpose of a “prelim” is normally to allow the court to decide whether the Crown has sufficient evidence to warrant going to trial. In Michael and Montana’s case, the defendants want the case to go to trial, because they want to proceed with a constitutional challenge to the draconian Health of Animals Act. (This is the law that forced the slaughter, without Montana’s consent and without adequate compensation, of dozens of perfectly healthy rare sheep.)

So the defendants and their Canadian Constitution Foundation-supported lawyer Shawn Buckley will be using the prelim to find out what evidence the prosecutor intends to call against them at trial. It is very unlikely that the defence will call any evidence during the prelim.

Because of courthouse overcrowding, this prelim is going to be a travelling road show.  It will be held in the Cobourg courthouse (860 William Street, Cobourg) on February 17, 19, 20, 24, 26 and 27.  It will spend one day—February 18—at the Lindsay courthouse (440 Kent Street West, Lindsay).  And it will convene at the Peterborough courthouse (70 Simcoe Street, Peterborough) on February 23 and 25.  The location of the April portion is not yet known.

If you’re thinking of attending, just beware that the prosecutors may ask for an order excluding members of the public. We don’t know why they would want that, but don’t expect your admittance to be guaranteed. However, if you happen to be nearby and would like to come wish Michael and Montana well at the beginning or end of the day, you could drop in to the appropriate courthouse between 9 and 9:30 a.m. or after 4:30 p.m.

We’ll try to post a further notice if members of the public will be permitted to watch the prelim, although the presence or absence of spectators at this stage won’t make any difference to the outcome. However, even if you’re allowed to watch, there may be a publication ban on the proceedings preventing you from publishing (this includes blogging and broadcasting) details of the evidence. The purpose of a publication ban is to prevent one-sided reporting of the proceedings that might conceivably taint the jury pool.

Ultimately, this case is going to be tried before a jury, and nobody wants the residents of Northumberland County to have pre-judged the case based only on having read about the prosecutor’s evidence.

It will be important for supporters of food freedom to show their interest in this case by attending to watch the trial. We’ll give you plenty of notice when the dates for trial are set.

Meanwhile, there’s an interesting twist in this prelim.  The prosecutors have subpoenaed one of Montana’s lawyers, CCF litigation director Karen Selick, to be one of their witnesses. The prosecutors have no idea what Selick’s evidence will be, because she has consistently refused to discuss the case with the CFIA investigator. So this may just be a fishing expedition, or it may be a deliberate ploy designed to prevent Selick from acting for Montana and Michael.

 

Background

In case you’re forgotten the background to this case, Montana’s farm near Hastings, Ontario was quarantined in 2010 after it was alleged that her rare Shropshire sheep had been exposed a few years earlier to a disease called scrapie. Every single sheep in the flock underwent a live biopsy.  No signs of scrapie were found. But the Canadian Food Inspection Agency (CFIA) still wasn’t satisfied. They insisted that dozens of  sheep be killed so that they could examine their brains. . . to find out whether or not they were really healthy!

Montana—assisted by CCF lawyer Karen Selick—tried for months to persuade the CFIA to relent.  Although the CFIA’s own veterinarians had published a scientific paper discussing the importance of maintaining genetic diversity, they were adamant that these rare sheep had to be slaughtered, precisely because of their unusual genotype.

Montana even offered to keep her farm quarantined for another five years, giving the CFIA the head of each sheep as it died of natural causes.  The incubation period for scrapie would surely have passed by then. No, said the CFIA—that wasn’t good enough. The sheep had to be killed and examined now.

The compensation that Montana would have received (she actually didn’t get a penny) was only a fraction of what it would have cost to replace this rare blood stock, since replacement animals possessing these rare genetics would have had to be imported from England.

On April 2, 2012, the morning when the sheep were due to be picked up by the CFIA for slaughter, they had mysteriously disappeared from Montana’s farm. A note signed by the “Farmers Peace Corp” said that the sheep had been taken into protective custody pending proof that they were actually diseased.

About two months later, the sheep were found on another Ontario farm, about 300 km. away from Montana Jones’ farm. The CFIA slaughtered and tested all of their brains for scrapie. All were negative, just as Montana had predicted all along.

Nevertheless, Montana and Michael Schmidt and two other people have been charged by the CFIA with numerous offences, including criminal conspiracy to obstruct the CFIA. Constitutional law will form an important part of their defence.

 

Why This Case Is Important

The federal law that gives the CFIA power to wreak havoc with farmers’ property and lives is called the Health of Animals Act.  It grants vast powers to CFIA veterinarians to order the destruction of animals on the flimsiest of suspicions, with no real opportunity for the farmer to appeal to a superior authority. The CFIA staff member is judge, jury and executioner.

Disobeying a CFIA order means risking huge fines plus imprisonment for up to two years per offence.  This potential jail sentence threatens a farmer’s right to individual liberty. Liberty is guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. Consequently, the government is obliged to treat individuals in accordance with the principles of fundamental justice if it proposes to jeopardize their liberty.

The evidence at Montana’s trial will demonstrate that the CFIA failed to respect the principles of fundamental justice, and that this flawed legislation gave them apparent licence to do so. Among other things, the CFIA’s destruction order was issued without reasonable cause, without considering all relevant facts, with possible ulterior conflicting motives, with negligent disregard to the welfare of a citizen,  and in violation of her property rights under the Canadian Bill of Rights.

The Canadian Constitution Foundation recently obtained a BC Supreme Court ruling in another case—Leroux v. Canada Revenue Agency—that Canada’s tax authorities owe a duty of care to taxpayers. We think all government employees, in every field, must conduct themselves with due regard to the welfare of the taxpayers who pay their salaries. Government employees cannot threaten citizens with imprisonment and financial ruin on the basis of their own careless conduct and arbitrary decisions.

You can help establish these important legal principles by donating today. The prelim alone is expected to cost $50,000 in legal fees.  We don’t even have an estimate yet for the cost of the trial.  To donate online, please click on the banner to the right of this page, or go to www.theccf.ca/donate/form/. This case is being supported by the Canadian Constitution Foundation, a registered charity. The money collected for this case will be used to pay lawyer Shawn Buckley.  Canadian and US residents will be able to deduct their donation for income tax purposes. The CCF is both a registered charity in Canada (# 86617 6654 RR0001) and a 501(c)(3) public charity in the United States.

This report was written by staff at the Canadian Constitution Foundation.