Toronto, ON: Today, the Ontario Court of Appeal unanimously decided in the R. v. Schmidt case that cow-share members do not have a constitutionally protected right to acquire raw milk in order to promote their own health. In reaching this decision, the Court upheld the prior conviction of dairy farmer Michael Schmidt for the sale and distribution of unpasteurized milk and milk products under the Health Protection and Promotion Act (“HPPA”) and the Milk Act.
Schmidt advanced three arguments before the Court. First, the Canadian Charter of Rights and Freedoms should protect the right of individual Canadians to choose a means to protect and promote their own health when the means chosen causes no one any harm. Second, neither the HPPA nor the Milk Act were intended to prohibit cow-share programs. And third, that Schmidt’s liberty was violated by the HPPA and Milk Act by punishing him for entering into mutually agreeable cow-share contracts with others who desired to acquire unpasteurized milk and milk products.
The Court rejected each of these arguments in turn and dismissed the appeal. CCF staff lawyer, Derek From, said “The decision is deeply disappointing. The government should not be permitted to prevent individuals from choosing a means of promoting their own health when it causes no one any harm. Unfortunately, the Ontario Court of Appeal disagrees”. Michael Schmidt added, “It is indeed a sad reality that the courts do not take the issue of individual liberty serious enough in order to afford informed consumers the freedom to choose.”
Michael Schmidt obtained his master’s degree in agriculture in his native Germany where raw milk sales are legal. Upon moving to Ontario, he found that many consumers were interested in obtaining raw milk. Ontario law, however, forbids its sale or distribution while permitting the consumption of raw milk by the owner of the cow.
To make raw milk available to consumers while attempting to still comply with the law, Schmidt developed “cow-sharing” on his farm. Interested individuals purchase a share of the dairy herd. As owners of the cows, they also own the milk and should be legally entitled to consume it, as was argued in this case.
In 2006, government agents raided the farm and charged Schmidt with 19 offences. At trial, Schmidt was acquitted of all charges by Justice of the Peace Paul Kowarsky in January, 2010. The government appealed, and in 2011, Justice Tetley of the Ontario Court of Justice convicted Schmidt of 13 counts and ordered him to pay fines totalling $9,150 and one year probation.
The Canadian Constitution Foundation (“Freedom’s Defence Team”) is a registered charity, independent and non-partisan, whose mission is to defend the constitutional freedoms of Canadians through education, communication and litigation.