Schmidt files appeal

Monday, December 19, 2011

by SUSAN MANN

The lawyer representing Durham-area farmer Michael Schmidt will be arguing for leave to appeal his conviction and sentence of raw milk sales and distribution on April 25, 2012.

Karen Selick, litigation director for the Canadian Constitution Foundation, says they have to argue that the case is important enough for the Court of appeal for Ontario to consider it. “A regulatory offence is considered to be pretty minor so they don’t give us an automatic right to appeal,” she says. “We have to demonstrate that it’s important enough for the Ontario Court of Appeal to spend its time on.”

Schmidt was first acquitted of 19 charges related to raw milk sales and distribution in January 2010 by Justice of the Peace Paul Kowarsky but then convicted by Justice Peter Tetley of 15 of those charges in September after the province and Grey Bruce Health Unit appealed the initial acquittal. Schmidt was sentenced in November to a fine of $9,150 and one year of probation.

One reason given in the written motion for special grounds to appeal was that Schmidt was acquitted of the charges at the trial but then convicted after the province and health unit appealed.

In addition the judgment introduces uncertainty into the law making it impossible for people in similar situations as Schmidt to determine whether they are breaching the law or not.

As for some of the grounds for appeal, it says in the written motion the judge erred in his interpretations of various terms, such as ‘distribute,’ ‘plant,’ ‘distributor,’ and ‘processing.’

The judge also made mistakes in questions relating to the law of contract. In addition the judge erred “in holding Mr. Schmidt did not have standing to advance constitutional claims on behalf of raw milk consumers,” the written motion says. BF