Home News In the News Kim Arnott: Milk fight likely to go on until the cows come home

Kim Arnott: Milk fight likely to go on until the cows come home

By | The Lawyers Weekly on Apr 04 2014

From In the News

Farmer’s cow-share program not protected by Charter rights, Ontario appeal court rules

The right to drink unpasteurized milk is not protected as a liberty under s.7 of Canada’s Charter of Rights and Freedoms, according to Ontario’s Court of Appeal. And while the ruling doesn’t surprise Derek From, the lawyer who recently argued that it should be protected, he said the court’s decision is disheartening and the s.7 test is “deeply flawed.”

From, a staff lawyer with the Calgary-based Canadian Constitution Foundation, represented Ontario farmer Michael Schmidt in his appeal of 13 convictions under Ontario’s Health Protection and Promotion Act and Milk Act resulting from a cowshare program he created to provide raw milk to individuals who purchased a share in his dairy herd.

The court’s unanimous finding in R. v. Schmidt [2014] O.J. No. 1074 that “lifestyle choices as to food or substances to be consumed do not attract Charter protection” was an expected restatement of 30 years of s.7 Charter jurisprudence, From acknowledged.

“We knew we didn’t have much of a chance, but we thought it was one of those arguments that needed to be made. In a practical sense, the test has evolved in a way that makes it an impotent right because you can never go to court and successfully argue that your liberty is infringed,” he said. “The government never has to defend itself unless the infringement rises to such a high level that it’s one of those once in a lifetime decisions that you make.

“It doesn’t recognize that an aggregate of trivial infringements of liberty can themselves amount to totalitarianism.”

In the decision, Justice Robert Sharpe also rejected the argument that s.7 protects Schmidt’s right to engage in unfettered economic activity, or that there is enough scientific evidence of the health benefits of drinking unpasteurized milk to find the legislation infringes the right to security of the person.

“The court didn’t appear to find these particularly challenging Charter arguments,” said Meghan Ferguson, a Toronto lawyer with Devry Smith Frank who works in the area of regulatory health and safety law.

The Appeal Court decision also considered the intent of the statutes, which allow cow owners and their families to consume raw milk produced by their own animals but forbid the sale of the unpasteurized product on the grounds that it poses significant risk to public health.

In upholding Schmidt’s 2011 convictions by the Ontario Court of Justice, Justice Sharpe rejected the claim that cow-share participants enjoyed any real ownership that would entitle them to the raw milk, describing the program as “nothing more than a marketing and distribution scheme” designed to sell milk to members of the public.

In a practical sense, the [s.7 ] test has evolved in a way that makes it an impotent right because you can never go to court and successfully argue that

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your liberty is infringed. – Derek From, Canadian Constitution Foundation

In response to arguments that Schmidt’s program didn’t technically violate the statutes, the court chose to take a “broad and liberal interpretation” of the legislation, an approach supported by case law around public health legislation, said Ferguson.

“Basically the court is asked to fill in the gaps in the government’s legislation, that’s my cynical reading of it,” said From, who argued that unlike meatshare programs, the Ontario statutes don’t expressly forbid cow-share programs.

Schmidt, a longtime advocate of the health benefits of unpasteurized milk, has publicly stated his intent to take his fight to the Supreme Court of Canada. Whether the non-profit CCF will remain involved has yet to be determined, said From. However, he admits chances are very slim that the country’s highest court would consent to hear an appeal of the case.

Ferguson agreed, noting that the Court of Appeal decision appears clear and straightforward on issues of law, and that similar regulations exist across the provinces regarding the sale of milk and milk products.

“I don’t think legally it’s really a debate that should continue on in the courts,” she said. “What it comes down to is a political debate about how much government regulation we need.”

Given that some American border states, including New York, currently allow access to raw milk with some regulations, Ferguson expects that political debate will continue.

She says many will also be watching how public health officials respond to Schmidt’s latest “farm-share” program, in light of this decision. In recent years the farmer has created a program to allow people to purchase part ownership of his entire West Grey Township farm operation, including his cows.

When compared with the government’s position on tobacco, From said prohibition of unpasteurized milk on public health grounds is “completely disanalogous,” and added that the prohibition has created an unregulated and unmonitored black market that offers real danger to those seeking to consume it.

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