Judge didn’t rule on Schmeiser’s credibility

Monsanto won, but Percy Schmeiser was not branded a liar.

Those were some of the results of justice Andrew MacKay’s decision in the case that Monsanto brought against Schmeiser for allegedly growing its Roundup Ready canola without a licence.

Both Monsanto and Schmeiser failed to convince MacKay of key claims that could have won the case for Schmeiser or given Monsanto a bigger victory.

“In my opinion, this is not a case for exemplary damages,” wrote MacKay in his March 29 ruling, denying Monsanto a $25,000 penalty it wanted Schmeiser to pay.

“Neither the corporate defendant (Schmeiser Enterprises) nor Mr. Schmeiser acted in a manner that would warrant punishment or that would deserve condemnation by the court.”

Monsanto’s lawyers had argued that “the testimony of Mr. Schmeiser lacks credibility” and that he had “defiantly and stubbornly refused to acknowledge” that he had knowingly grown Monsanto’s patented canola.

Monsanto’s lawyers repeatedly attacked Schmeiser’s account of virtually every encounter he had with Monsanto officials, independent crop testers and other witnesses, clearly suggesting he was lying.

They also attacked the credibility of Schmeiser’s only on-farm witness, his hired hand, whom they tried to show lied about Schmeiser knowingly growing Roundup Ready canola.

Avoided the issue

But MacKay did not refer to Monsanto’s attacks on Schmeiser’s character when discussing the facts of the case. He did not challenge many of Schmeiser’s statements about how he farms, including his claim that he seeded eight fields of Roundup Ready canola in 1998 using seed harvested the year before from three acres on the edges of one of his fields, which he claimed was polluted with Monsanto’s seed without his knowledge.

This didn’t save Schmeiser from losing the case. The judge ruled that regardless of how the glyphosate-resistant canola ended up in that patch of field in 1997, Schmeiser knew what it was and didn’t have the right to use it as seed for 1998.

Schmeiser’s lawyers lost other arguments, too. They failed to convince the judge that most of Monsanto’s tests should be thrown out because the canola they used was allegedly obtained through trespassing and breaking a court order.

“Even if the evidence for the tests could be said to be improperly obtained …, a matter I decline to determine, Mr. Schmeiser has civil remedies to address that issue,” MacKay wrote.

The judge also rejected the evidence from Schmeiser’s own grow-out trials, while accepting those done by Monsanto and independent testers. Schmeiser’s lawyers suggested Monsanto’s plant collection and tests were suspect and not trustworthy.

“These concerns require that the court carefully weigh the evidence from any of the tests but, in my opinion, there is no basis, in this case, for disregarding all of the evidence from various tests,” MacKay wrote.

“Particularly, this is so where the evidence of more than one or two tests points to the same conclusions.”

Schmeiser’s lawyers also failed to convince the judge that Monsanto had waived its patent by allowing Roundup Ready canola to spread across Western Canada.

“The weight of evidence in this case supports the conclusion that the plaintiffs undertook a variety of measures designed to control the unwanted spread of canola containing their patented gene and cell,” MacKay said.

In drawing this conclusion, MacKay used the evidence of some of Schmeiser’s own witnesses, who had complained about Roundup Ready volunteers spreading onto their fields.

Monsanto and Schmeiser’s supporters agreed the decision was a victory for the chemical company’s patent, but Schmeiser’s supporters felt he had won a moral victory.

“Monsanto may have won in court, but Percy Schmeiser won in the court of public opinion,” said Neil Sinclair, leader of Saskatchewan’s New Green Alliance party and an organic farmer.

“I don’t think Percy has lost any credibility as a spokesman (against genetically altered crops).”

Monsanto spokesperson Trish Jordan said the company never wanted to fight a Saskatchewan farmer in court.

“We would have preferred this case not go into a court because it was a very high profile case,” she said.

“From Monsanto’s perspective, we don’t need the negative publicity this creates for us.”

Schmeiser, who spent much of the winter overseas speaking about the alleged dangers of genetically modified crops, said he will keep crusading against Monsanto.


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