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.

Michael Schmidt seeking leave to appeal conviction and sentence

Durham-area farmer Michael Schmidt is asking for leave to appeal his conviction on 15 charges related to the sale of raw milk along with the sentence handed down following the conviction.  Schmidt was sentenced to a fine of $9,150 and one year of probation.  The appeal would be heard by the Ontario Court of Appeal.
Justice Tetley's reasons for sentencing Schmidt are available on the website of the Canadian Constitution Foundation.  The Crown had asked for $1,000 per count for each of ten convictions under the Health Protection and Promotion Act, R.S.O. 1990, c. H-7, and $200 for two other counts under the same Act.  The Crown sought a fine of $5,000 for the offence under the Milk Act of operating a milk plant without a licence during the fourteen week period of the investigation by the Ministry of Natural Resources. 

In handing down the sentence, Justice Tetley declined to rule that Schmidt's was a test case in which it would be appropriate to moderate the sentence.  Tetley did agree, however, that a relevant factor in sentencing was the fact that Schmidt believed he was complying with the applicable legislation.  Justice Tetley added that the extended period of time where regulatory enforcement procedures were not instituted may reasonably be concluded to have contributed to a mistaken belief on the part of Schmidt that he was in compliance with the law. 

Read the decision at: R. v. Schmidt.

Reasons for Decision in Michael Schmidt raw milk case released

The Reasons for Decision of Justice P.D. Tetley in the Michael Schmidt raw milk case are now available at: R. v. Schmidt.  Schmidt had been acquitted of all charges against him by a Justice of the Peace, but that decision has now been overturned and he has been convicted on 15 of 19 charges against him under the Provincial Offences Act (see my recent post).  The POA charges arose from alleged violations of the Health Protection and Promotion Act, R.S.O. 1990, c. H-7 (17 counts) and the Milk Act, R.S.O. 1990, c. M-12 (2 counts).  Counsel for the parties have been asked to confer with the trial coordinator to set a date for sentencing of Mr. Schmidt.

Ontario Court reverses Michael Schmidt acquittals on raw milk charges

Farmer Michael Schmidt has been convicted on 15 of 19 charges related to the sale of raw milk after the Ontario Court of Justice overturned a previous decision by a Justice of the Peace.  Schmidt had been acquitted of all charges (see my earlier post from January, 2010), but on appeal Justice Peter Tetley rejected Schmidt's argument that selling raw milk to customers who are aware of any health risks was his legal right. 

Schmidt remains defiant, and has said that he will appeal the decision: "There's no stopping.  Nothing will stop me."  Schmidt says that he is prepared to go to prison over his right to provide raw milk. 

Schmidt has also been served with contempt of court charges stemmning from his alleged involvement in Our Cows Inc., a Chilliwack, B.C. operation that provincial authorities there have tried to shut down. 

Ontario Government to appeal Michael Schmidt raw milk acquittal

CBC News - Toronto - Ont. appealing raw milk producer's acquittal

Ontario's Ministry of the Attorney General has confirmed that it will appeal the recent acquittal of raw milk crusader Michael Schmidt. Schmidt was acquitted by a justice of the peace. The appeal will go to a judge of the Ontario Court of Justice.

R. v. Schmidt Unpasteurized Milk Decision now posted online

The decision of the Ontario Court of Justice last week acquitting Ontario farmer Michael Schmidt of all charges relating to the sale of unpasteurized milk is now available online at:
http://www.canlii.org/en/on/oncj/doc/2010/2010oncj9/2010oncj9.html
(Schmidt himself had posted a copy of the decision on his website, but the file size of this publicly available copy is much smaller)

You might find His Worship Kowarsky's comments at the very end of the decision (paragraphs 185 and 186) of particular interest. He makes a point of explaining what his decision does not do: it does make it legal to market unpasteurized milk; it does not invalidate Ontario's milk marketing legislation, etc.

CBC News - Ontario farmer not guilty of selling raw milk

CBC News - Canada - Ontario farmer not guilty of selling raw milk

Dairy farmer Michael Schmidt has been found not guilty of 19 charges related to the sale of unpasteurized milk. Schmidt represented himself against the Ministry of Natural Resources in a trial before the Ontario Provincial Offences Court.

I'll keep an eye out for any written reasons for the verdict in the case and post a link to them if they are available.