Defence says Monsanto picked on Schmeiser

In its pursuit of Percy Schmeiser, Monsanto used private investigators, listened to local rumors and obtained secret samples of the farmer’s crop, federal court in Saskatoon has heard.

No one denies that Monsanto’s pursuit of Schmeiser was vigorous. But Monsanto and Schmeiser’s lawyer disagree about whether it was legal.

Monsanto’s lawyers and representatives argue that they acted reasonably, only resorting to private investigators, a court order and secret sampling after Schmeiser refused to co-operate with the company.

Schmeiser’s lawyer has tried to portray the company and the private investigators it hired as sloppy and guilty of trespassing to obtain some of Schmeiser’s canola seed.

The Bruno, Sask., farmer is being sued for allegedly growing Roundup Ready canola without a licence in 1997 and 1998.

According to Monsanto officials, Schmeiser became a target in 1997 when a phone call and rumors in the Bruno area claimed the farmer was growing Roundup Ready canola without a licence.

Monsanto sent a private investigator from Regina to check Schmeiser’s crop. Wayne Derbyshire testified he repeatedly tried to contact Schmeiser, but was unable to reach him. He then took samples of Schmeiser’s crop that had been seeded into the ditch beside one of his fields and walked into the field to take a sample.

Derbyshire said he did not trespass on Schmeiser’s land to obtain the in-field sample because a right-of-way ran through part of the land. But he admitted there were no markers staking out Schmeiser’s land when he took the samples. A survey crew went to Schmeiser’s land later to mark out the location of the right-of-way.

In spring 1998, Monsanto’s local Roundup Ready salesman Rob Chomyn found out that Schmeiser had taken a load of canola to Humboldt Flour Mills to be seed treated.

Chomyn, who knew the company kept samples of all seed it treated, asked for a portion of Schmeiser’s sample so Monsanto could test it for the Roundup Ready gene.

HFM gave him part of the sample but did not tell Schmeiser that it had done so. Later, HFM gave a sample to Schmeiser as well. Eventually Monsanto, Schmeiser and HFM all sent some of their samples to be tested by a University of Manitoba scientist.

Those tests of the Monsanto and HFM samples showed Schmeiser’s crop was commercial grade Roundup Ready canola. But the sample Schmeiser supplied showed a far lower level of the Roundup Ready gene, Schmeiser’s lawyer Terry Zakreski said.

When Monsanto tested the HFM sample itself, it found that the canola seed was well over 90 percent Roundup Ready, which is the same as commercial pedigreed seed.

Former HFM farm supplies manager Gary Pappenfoot agreed with Zakreski’s suggestion that HFM was willing to supply the sample to Monsanto because of the “good business relationship” between the two companies.

After hearing more rumors that Schmeiser was growing bootleg Roundup Ready canola in 1998, Monsanto again sent a private investigator to take samples of Schmeiser’s crop that was growing in the ditch beside his fields.

The tests again showed the crop contained commercial concentrations of the Roundup Ready gene, private investigator Eugene Shwydiuk said.

Court order

Based on this evidence, Monsanto received a court order allowing it to take samples of Schmeiser’s eight fields of canola. An investigator and a Monsanto representative went to Schmeiser’s crop to take the samples. They both said Schmeiser refused to come along to observe.

Zakreski said Schmeiser said he was told he was not allowed to go along. The farmer was later given half of the samples taken that day.

Some of Monsanto’s samples were sent to company headquarters in St. Louis, Missouri where they were tested by company scientists. The rest stayed in Saskatoon, where they were tested by Monsanto, a local lab and by well-known canola researcher and inventor Keith Downey.

All of Monsanto’s samples showed Schmeiser was growing a crop virtually identical to pedigreed Roundup Ready seed, the company’s lawyer said.

After these results Monsanto launched the lawsuit against Schmeiser in late 1998.

Zakreski said he intended to ask the judge to disallow all the canola samples Monsanto obtained because of Derbyshire’s alleged trespassing.

Outside the courtroom, Monsanto officials said the pursuit of Schmeiser was “a very rare” situation, and other farmers should not worry. Monsanto only acted as it did because Schmeiser refused to co-operate.

“We feel we’ve been pretty straightforward with Mr. Schmeiser,” said Monsanto biotechnology manager Craig Evans, who has attended all of the trial.

“This could have been resolved around a kitchen table rather than going to court. … It’s not something we want to do. It’s something we’re compelled to do.”

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