Cow-share arrangement a ‘marketing and distribution scheme,’ says court
DRESDEN, Ont. — A court decision last week hasn’t put an end to Michael Schmidt’s raw milk business.
The Court of Appeal for Ontario upheld an Ontario Court of Justice ruling from three years ago that said Schmidt’s “cow-share” scheme was not a legitimate way to circumvent the province’s Health Protection and Promotion Act, which prohibits the sale, delivery and distribution of unpasteurized milk and cream.
It also didn’t accept Schmidt’s argument that the act is contrary to Section 7 of the Charter of Rights and Freedoms and refused to admit the presentation of new evidence concerning raw milk’s benefits.
Schmidt, speaking from his Ontario farm near Durham in Grey County, said he remains a raw milk “provider” for about 150 customers.
Instead of cow shares, Schmidt and his wife, Elisa, have issued “farm shares” to their customers. The members also pay the Schmidts for their labour.
“We looked at the whole issue and debate and decided that people should get more involved in the entire aspect of the farm and take ownership. That’s why we went to the farm share concept,” Schmidt said.
“It is a co-operative so there needs to be a distinction between what happened seven years ago.”
That’s when Schmidt said officers from the provincial natural resources ministry raided his farm on behalf of the agriculture ministry. In the initial court proceeding, a justice of the peace accepted Schmidt’s cow-share argument and acquitted him of all charges.
However, the Ontario Court of Justice overturned that ruling Sept. 28, 2011. The judge entered convictions on 13 counts and imposed fines totaling $9,150 and one year of probation.
That led to the March 11 decision at the appeal court.
“The cow-share arrangement is nothing more than a marketing and distribution scheme that is offered to the public at large,” the court said.
Schmidt said his farm share arrangement would mean shareholders would be compensated if his family’s 400-acre property is sold.
He cited a university survey of more than 2,000 Canadian dairy farmers who reported that they or their family members consumed raw milk.
Chris Schafer and Derek From of the Canadian Constitution Foundation represented Schmidt.
“Just because you lose in court doesn’t mean you can’t win,” Schafer said.
However, future legal action re-mains a possibility. Alternatively, the province may choose not to pursue the matter or a political decision could be made to legalize the sale of raw milk.
“I suspect at some point in the future they could be subject to law enforcement,” Schafer said.
Schmidt said the best outcome would be a political decision allowing raw milk to be marketed in Canada along with the introduction of standards and regulations for quality assurance. He said Canada is the only G-8 nation that prohibits the consumption of unpasteurized milk.
The March 11 ruling said there is ample evidence “that human consumption of unpasteurized milk may be hazardous to one’s health or at least more hazardous than the health risk presented by the consumption of pasteurized milk.”
The ruling said that while Schmidt and his followers appear to be sincere in their belief in the benefits of unpasteurized milk, the legislation banning its sale and distribution must be respected.
The danger of raw milk consumption is minimal but not entirely free of risk, Schmidt said. The same can be said for pasteurized milk, he added.
Schmidt said he and 14 Ontario farmers help serve the demand for raw milk through farm share arrangements.
About two percent of Canadian milk drinkers want it, he added.
The Schmidts operate a mixed farm with help from farm apprentices and some of their children. Their small dairy herd comprises Canadienne cows, which average 4,000 kilograms of milk per lactation on a diet composed primarily of pasture and hay.
That’s less than half the average production in Ontario.
Schmidt said he is not concerned about the possibility of a future raid. It would only serve to get more people interest in raw milk, he added.
Schmidt said he has been milking cows for 40 years: 30 in Canada and 10 in Germany.