B.C. farm defies court ruling on raw milk

CBC News - British Columbia - B.C. farm defies court ruling on raw milk

CBC News reports:

Members of a cow-sharing collective in B.C.'s Fraser Valley say they will continue distributing raw milk, despite a court ruling.  The Supreme Court of British Columbia ruled the Home on The Range co-op in Chilliwack is "willfully causing a health hazard" by supplying its members with unpasteurized milk. The collective was formed to get around a B.C. law prohibiting the sale of raw milk.  The 400 members own shares in 21 cows and pay the operator, Alice Jongerdon, to take care of them.  "The key point is that it's not in commerce. It's not for sale, it's never for sale," said co-op member Gordon Watson.  "Therefore we got around the idea in the Milk Industry Act [that] if milk is for sale in British Columbia, then the government has oversight over it. And so we just went ahead and took our property home and we paid Alice to look after the cows for us." 

However, the provincial government wants to stop the distribution, saying it's against the law and dangerous.  "[We have seen] many, many, many, many, many cases of diseases ranging from tuberculosis to Streptococcal poisoning to E. coli, et cetera, associated with the consumption of raw milk," said provincial health officer Dr. Perry Kendall.  But despite the risks of raw milk, Watson thinks the benefits are far greater. He said the pasteurization process kills vital enzymes in the milk.  Watson said he expects the court will order Jongerdon to stop distributing the milk. If that happens, Watson said he will take over distribution himself.

In her decision in the case, Madam Justice Gropper of the B.C. Supreme Court compared the Jongerden distribution set up to that of Michael Schmidt in Ontario, who was recently acquitted of charges under the Milk Act:

The respondents rely on Schmidt. In that case, the defendant, Michael Schmidt, a dairy farmer, was charged with 14 counts of possessing, distributing or selling milk and milk products which were not pasteurized or sterilized; two counts of operating a plant or distributing fluid milk products without a license under the Milk Act, R.S.O. 1990, c. M.12, and three counts of failing to obey a public health inspector’s order under the Health Protection and Promotion Act, R.S.O. 1990, c. H.7 [HPPA] by storing and displaying unpasteurized milk and milk products. He was acquitted of all charges.

The respondents assert that Schmidt ought to be binding on this court. They say that it stands for the proposition that cow share programs, where raw milk and raw milk products are available only to members of the cow share, are not embraced by s. 15 of the Public Health Act and s. 7 of the Transitional Regulation.
While the cow share program undertaken by Mr. Schmidt in Ontario is the same or similar to that undertaken by Ms. Jongerden in British Columbia, that is the only similarity to be found. The provisions of the Ontario Milk Act are not similar to the provisions of the B.C. Public Health Act.

There is no provision in British Columbia’s Public Health Act which creates a rebuttable presumption like that contained in s. 25 of the Ontario Milk Act. It is the view of Kowarsky J.P. that Mr. Schmidt had rebutted the presumption that his milk or milk products were related to marketing within Ontario, because his products were only available to members of the cow share. The Transitional Regulation, on the other hand, is quite clear that milk for human consumption which has not been pasteurized at a licensed dairy plant in accordance with the Milk Industry Act, is a health hazard.

The question of whether the milk or milk products are distributed to the public or to members of the cow share is of no relevance in British Columbia. Raw milk is deemed to be a health hazard by regulation, and s. 15 of the Public Health Act “prohibits a person from willingly causing a health hazard”.

Further, the B.C. legislation does not provide the court with the opportunity to consider whether or not raw milk is a health hazard. It does not require that samples of the raw milk be taken or tested or provided to the court. Raw milk is presumed to be a health hazard under s. 7 of the Transitional Regulation.

There is a further significant distinction between the matter before me and that before Kowarsky J.P. Mr. Schmidt was charged under the provisions of the Ontario HPPA and Milk Act and the crown was required to prove the charges beyond a reasonable doubt. The case at bar, however, is a civil matter where the petitioner seeks an injunction in relation to a breach of a statutory provision.

Based on the foregoing, I decline to follow the Schmidt decision of the Ontario Court of Justice, Provincial Offences Court.

Read the Court's decision at: Fraser Health Authority v. Jongerden.