Customer Cheryl Diamond of the U.S. buys organic raw milk from a dispenser at Selfridges food hall in central London December 16, 2011. London department store Selfridges has circumvented a legal ban on the sale of raw milk in British shops by having it supplied direct by dairy farmers Hook & Son, from Longleys Farm in Hailsham. Photograph taken December 16, 2011.
Credits: REUTERS/Luke MacGregor
TORONTO -- These hallowed walls of Ontario's highest court have heard arguments about murders and embezzlements, bitter divorces and ugly assaults.
But the Court of Appeal has never before been asked to rule on the legality of distributing unpasteurized milk. That's about to change.
It didn't take long for Justice Eileen Gillese to decide that raw milk crusader Michael Schmidt deserves yet another day in court. After listening to morning arguments, she ruled the dairy farmer, originally acquitted in 2010, should be allowed to appeal his 2011 conviction for selling his controversial product.
"You've got two decisions standing and they conflict," the judge noted. "That's what the leave to appeal would resolve."
For Schmidt, it means his battle with the province will live to see another day. "I'm tremendously happy the judge understood that it is of significant public interest to resolve this issue," he said on the steps outside Osgoode Hall.
It's not illegal in Canada to drink raw milk, but since 1938, it's been against the law to sell or distribute it. Health authorities maintain that without high heat pasteurization, milk may contain dangerous bacteria such as salmonella, E. coli and listeria and the public needs to be protected.
Raw milk advocates, though, claim pasteurization is guilty of purging beneficial bacteria and studies have found drinkers suffer fewer allergies. Schmidt says he's raised nine children on raw milk with no ill effects.
"The law was introduced 80 years ago about mandatory pasteurization for the public good to prevent diseases. But technology has changed," insisted the 58-year-old farmer in his trademark dark newsboy's cap. "There are health benefits to drinking raw milk and people should have the right to make the choice."
After immigrating to Canada from his native Germany in 1983, the dairy farmer first ran afoul of the law in 1994 when he was convicted of selling and distributing unpasteurized milk. He tried to get around the law by creating a bovine loophole: a "cow-share" co-op where 150 consumers paid $300 for their share of his dairy herd and in return, received their raw milk with technically no sale involved.
Justice of the Peace Paul Kowarsky initially ruled Schmidt's innovative cow co-op didn't violate Ontario's public health or milk-marketing regulations. His victory was short-lived when the province appealed the case and his acquittal was overturned by Justice Peter Tetley.
Schmidt was fined $9,150 and given a year's probation for violating the Milk Act and the Health Protection and Promotion Act.
There was never any question that Schmidt would fight this all the way to the higher court.
"It changed my view about the question of responsibility that we have. When you have an unjust law, do we just sit back or do we take up the cause?" he mused. "It's a liberty issue."
His passionate crusade has cost him dearly: armed police have twice raided his property near Durham, Ont., his first wife left, he's gone on several hunger strikes, and he's divested himself of his farm and any other holdings so that a punitive justice system would have nothing to seize. "I don't own anything anymore because of this battle," he explained. "I knew they would bankrupt me."
You have to wonder at the zealousness on both sides.
Investigating and prosecuting Schmidt for almost two decades has cost millions. During one raid, 24 officers from five different government agencies searched his rural property. "Why are police forces raiding farms? Don't they have better things to do than that?" he asked.
The irony is that the government doesn't seem to have any problem with the sale and distribution of cigarettes, allowing consumers to decide for themselves on those health risks. But then, they earn a pretty penny from cancer sticks, and none on the sale of raw milk.
Taking up Schmidt's cause pro bono is the Canadian Constitution Foundation, a registered charity. "We litigate for liberty," explained lawyer Karen Selick.
In court, she quoted a study that found 88.7% of farmers report drinking raw milk. "Do consumers have the right to control what goes into their bodies?" Selick asked.
Now it will be up to the Ontario Court of Appeal to wade into that churning debate.