Durham farmer carries on with milk crusade

Wednesday, September 28, 2011

by SUSAN MANN

Durham-area farmer Michael Schmidt and his lawyer are looking for grounds to appeal Wednesday’s court decision reversing a previous court’s ruling acquitting him on charges related to selling and distributing raw milk.

Justice P.D. Tetley reversed a lower court decision and found Schmidt guilty on 15 of the 19 charges. Justice of the peace Paul Kowarsky acquitted Schmidt of all charges in January 2010. The Ontario government and the Grey Bruce Health Unit appealed that decision.

Schmidt says he’s shocked by the “completely different approach Justice Tetley has taken from what Kowarsky has taken in his previous ruling.”

He had hoped for a different decision, especially hoping Tetley would have looked deeper in the whole Charter of Rights and Freedoms argument. “I don’t think it was a very thorough ruling. I think it was a very poor ruling.”

Schmidt says they’ll be seeking leave to appeal the ruling to Ontario’s Court of Appeal. His lawyer, Karen Selick of the Canadian Constitution Foundation, says they’ll be looking to appeal mostly on the constitutional matters: “We think that the court, frankly, missed the boat when it did the analysis of the constitutional issues here.”

Tetley’s decision hasn’t changed Schmidt’s determination to continue fighting to legalize raw milk sales and distribution in the province. He says he’ll continue running his cow-share operation. “We just keep doing what we have done always.”

Selick says she’s asked the government what its intentions were regarding Schmidt’s farm before the decision came down. It could produce irreversible harm to the farm and the cow-share owners would be disrupted if they raided the farm. “They haven’t answered.”

Selick says the government should leave Schmidt’s farm alone while the matter is working its way through the courts. What if they go in and cause damage to him and then a higher court rules the legislation was unconstitutional?

Schmidt says it’s ironic that every time the government cracks down on him or “some stupid statements are made about how dangerous raw milk is” it increases the demand for it.

“I am already having 10 or 15 requests for raw milk just this (Thursday) morning,” he says, noting “it’s great they’re doing the promotion for us because legally we can’t do it ourselves.”

Government experts testified at Schmidt’s trial in 2009 human consumption of raw milk and raw food products constitutes a significant health risk as raw milk is a known source of food borne illnesses.

Schmidt says there’s a big difference between producing raw milk for human consumption and producing it to be pasteurized. What he’d like is for the government and Dairy Farmers of Ontario to use his farm to research producing raw milk safely. “If we find out in two years that our milk is horribly bad then I’ll shut up and do nothing.”

But they’re refusing to do research, negotiate or get into any kind of dialogue. “I think that is the appalling part in the situation and that’s why I’m not backing down,” he says.

All claims that the legislation violated the Canadian Charter of Rights and Freedoms were dismissed. “The entitlement to consume milk, raw or otherwise, is not a Charter-protected right,” Tetley says in his 77-page written decision.

Tetley also notes that the restrictions imposed on certain residents of Ontario to consume and distribute raw milk “are within the authorized ambit or scope of legislative authority.”

In Ontario it’s illegal to sell or distribute raw, unpasteurized milk but it’s legal to drink it and many dairy farmers and their family members consume it on their farms. In a press release from Schmidt’s supporters, it says a survey of 2,185 dairy farms in 2009 found that 88.7 per cent of respondents affirmed they or family members consumed raw milk from their farm.

Bill Mitchell, Dairy Farmers of Ontario’s assistant communications director, says by email they’re reviewing the decision and “while the matter is before the courts we will not be providing any further comments.”

Tetley says a main matter in the government’s and health unit’s appeal is the legitimacy of Schmidt’s cow-share program. It has been in operation since 1996 and enables people to pay a fee for an interest in a cow on his farm. Schmidt also gets a fee for milking, housing and feeding the cows and for transportation costs.

Kowarsky concluded the cow-share program was a lawful way for unpasteurized milk to be distributed to the legal owners of the cows that produced the milk in compliance with both the Milk Act and the Health Protection and Promotion Act, Tetley says. But the provincial government and health unit saw it as an unlawful attempt to circumvent the clear intention of the legislation to limit the consumption of unpasteurized milk to a restricted group implicitly limited by statute. BF