Ontario made pasteurization of milk mandatory in 1938, but Health Canada did not make it mandatory until 1991. Canada bans the sale of raw milk but not its consumption.
Although it is illegal to sell raw milk in Canada, consumers can own a share in the ‘source’ cow, which is what dairy farmer Michael Schmidt’s (owner of Glencolton Farms) customers do.
On January 21, 2010, Justice of the Peace Paul Kowarsky acquitted Michael Schmidt on 19 charges relating to the distribution of his raw milk. Because Schmidt had made diligent efforts to keep his cow-share program operating “within the confines and the spirit of the legislation”, JP Kowarsky concluded that the alleged offense fell into the category of ‘strict liability’; that is, criminal intent (‘mens rea’) could not be proved.
Schmidt had been prepared to do battle on a human rights level, and challenge the statutes on the ground that they violated his basic human right to ‘life, liberty and security of person’.
In November of 2009, the Canadian Constitution Foundation (CCF)–an independent, non-partisan, registered charity–announced its support for Schmidt on the grounds that consumers have the rights to choose what they put in their bodies, freedom of contract, and freedom from government regulation that is ‘arbitrary, unreasonable, unnecessary, and unfair’. However, with Schmidt’s full acquittal, these complex legal issues may go unchallenged.
The Ontario government could choose to let the ruling stand, and live with the reality of cow-share arrangements. The existing cow-share system is a public response to restrictive legislation. However, this is not satisfying the general public, because many people who would like to be able to access raw milk are unable to access a cow-share program; consequently, they have approached the CCF to see if the organization can pressure the government to change the law.
Schmidt and his long struggle have gained wide public support: the more people learn about his plight and educate themselves on the scientific and potential health benefits of consuming raw milk, the more people seem to want free access to it. Since Schmidt was charged in November, 2006, the size of the herd he manages has doubled and there is a waiting list of consumers wishing to participate in Schmidt’s cow-share program.
According to Karen Selick (litigation director the CCF), the government of Ontario has three options:
- Appeal this decision. The Canadian Constitution Foundation will represent Michael Schmidt in court if the Crown appeals.
- Create new legislation that specifically outlaws cow-sharing and/or the consumption of raw milk.
- Develop a regulatory procedure that would facilitate the sale of certified, safe, raw milk for interested consumers without requiring a cow-sharing arrangement. Schmidt and others–like Ontario raw milk advocate James McLaren–have offered to work with government officials to help develop the certification process. As Selick said in her article ‘Got Milk Justice’ (National Post, January 26, 2010), “Michigan is doing it right now. Why shouldn’t Ontario?”
On February 12, the Ministry of the Attorney General confirmed it is appealing the ruling made in January by JP Kowarsky. A court date for the province’s appeal has not been set.