July Dusk

July Dusk

Friday, March 14, 2014

Michael Schmidt loses unpasteurized milk appeal

The Ontario Court of Appeal has dismissed the appeal by Michael Schmidt of convictions on thirteen counts under the Milk Act and the Health Protection and Promotion Act (HPPA) related to the production, sale and distribution of unpasteurized milk and cheese.  Schmidt had tried to comply with the HPPA by creating a cow-share program where members purchased shares in milk cows (so that there was no real sale of unpasteurized milk produced by the cows).  The cow-share agreements were oral in nature, and there was no evidence that the name of the cow in which a member had a share was ever communicated to the member.  There was also no evidence that the agreements formally transferred ownership in the cow from Schmidt to the member.

At trial, Schmidt was acquitted of the charges on the basis that the private cow-share scheme was not caught by the legislation.  On appeal by the Crown to the Ontario Court of Justice, most of the acquittals were reversed, giving rise to Schmidt's appeal to the Court of Appeal for Ontario.  The Court of Appeal dismissed Schmidt's appeal.  With respect to the legislation banning the sale and distribution of unpasteurized milk, the Court wrote: "provided that the legislature has acted within the limits imposed by the constitution, the legislature’s decision to ban the sale and distribution of unpasteurized milk to protect and promote public health in Ontario is one that must be respected by this court."

The Court rejected Schmidt's contention that the cow-share scheme did not fall within the definitions of sale and distribution.  In the Court's view, "the cow-share arrangement is nothing more than a marketing and distribution scheme that is offered to the public at large by the appellant."  The Court also rejected arguments that the ban on the sale and distribution of unpasteurized milk in this case violated the Charter rights of the cow-share members.  The Court ruled that the ban did not constitute an infringement of the members' security of the person and did not infringe on the right of liberty.  As the Court stated, "lifestyle choices as to food or substances to be consumed do not attract Charter protection". 

Read the decision at: R. v. Schmidt.

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