Canadian Constitution Foundation puts decision to pursue raw milk case on hold

Monday, March 17, 2014

by SUSAN MANN

It will be up to incoming Canadian Constitution Foundation executive director Marni Soupcoff to decide if the organization will try to take Michael Schmidt’s raw milk case to the Supreme Court of Canada.

Schmidt’s lawyer from the foundation, Derek From, says Schmidt was hasty in saying in news reports last week after losing an appeal at the Ontario Appeal Court that he plans to take the case to the Supreme Court.

“It will be up to the executive director for our continued involvement,” says From, noting Soupcoff joins the organization next week. But it’s possible for Schmidt to request leave to appeal to the Supreme Court on his own.

Schmidt couldn’t be reached for comment.

From adds the foundation still has to review the Ontario Appeal Court decision with its new executive director to determine “if there is anything we think is appealable.”

But From says “I suspect the Supreme Court will rubber stamp this (the Ontario Appeal Court) decision.”

The foundation is a registered charity that’s non-partisan, according to its website. Its mission is to defend the constitutional freedoms of Canadians through education, communication and litigation.

As for the Ontario Appeal Court decision handed down March 11, From says he thinks the Appeal Court got the law right, “which is problematic.” The Ontario Appeal Court unanimously decided that cow-share members do not have a constitutionally protected right to acquire raw milk to promote their own health, the foundation says in a news release.

The court upheld Schmidt’s prior conviction for the sale and distribution of unpasteurized milk and milk products under the Health Protection and Promotion Act and the Milk Act. The Health Protection and Promotion Act makes it illegal to sell or distribute raw milk but people can drink the milk from their own cows.

Schmidt was convicted of 13 charges in 2011 and ordered to pay a fine of $9,150. He was also given one year of probation. A year earlier, in 2010, Schmidt was acquitted of 19 charges leveled against him after government officials raided his farm in 2006. But the Ontario government appealed the 2010 decision issued by Justice of the Peace Paul Kowarsky.

The March 11 Appeal Court decision says Schmidt set up a cow share arrangement where customers would pay a fee of $300 to $1,200 for an interest in the herd. For example, $300 gave a member a one-quarter interest in a cow. Customers also paid a per litre charge for the milk for services related to keeping and milking the cows, bottling and transporting the milk. The herd had 24 cows and there were about 150 individual or family cow share members.

From says there has been 30 years of terrible decisions in Canada on matters dealing with Section Seven of the constitution’s Charter of Rights and Freedoms. Section Seven gives everyone the right to life, liberty and security of person and the right to not have them taken away unless they’re removed according to the principles of fundamental justice.

“The precedents are almost all bad. It’s like getting a massive ship out in the ocean that’s been steered off course for 30 years back on course with one little readjustment. That’s very difficult,” From says.

In their decision, Ontario Appeal Court justices Robert J. Sharpe, K.M. Weiler and R.A. Blair noted that Justice Peter Tetley, who in 2011 convicted Schmidt of 13 of the original 19 charges, “went on to consider the charter arguments and concluded that there was no violation of the interests protected by Section 7 and that given the preponderance of scientific evidence as to the risk to public health posed by unpasteurized milk, the impugned legislation did not violate the principles of fundamental justice on the grounds that it was arbitrary or overbroad.”

The foundation says in its press release Schmidt raised three arguments but the appeal court rejected each one. One was the Canadian Charter of Rights and Freedoms should safeguard a person’s right to choose how to protect and promote their own health when the choice they make doesn’t harm anyone else. Another argument was that neither the Health Protection and Promotion Act nor the Milk Act was intended to prohibit cow share programs.

The third argument was Schmidt’s liberty was violated by the Health Protection and Promotion Act and the Milk Act because he was being punished for entering into mutually agreeable cow share contracts with people who wanted to buy unpasteurized milk and milk products.

Graham Lloyd, Dairy Farmers of Ontario general counsel and communications director, couldn’t be reached for comment. BF