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Huge Victory for Michael Schmidt As Canadian Judge Rules Cow Shares Outside Regulators’ Jurisdiction

By David E. Gumpert

From his blog, The Complete Patient

Photo: Michael Schmidt meets with the media before entering a Newmarket courthouse.

In a decision that took Ontario Judge Paul Kowarsky two-and-a-half hours to read, and sounded much of the time like a thoroughly researched legal treatise, raw dairy farmer Michael Schmidt was exonerated on 19 counts of violating the province’s milk laws.

At first, the judge sounded as if he was going to rule against Schmidt,when he said several times he had “no authority” to pronounce on legislation. His role, he said, was to determine “whether offenses occurred.” He then went through each of the 19 counts against Michael Schmidt, which stem from offenses that first occurred in 1994, when his Glencolton Farm was first raided by authorities.

He then went through the account of how two undercover agents from the Ontario Ministry of Health in 2006 acquired milk products from Michael Schmidt. The circumstances around that operation wound up influencing the judge’s ruling when he decided he had “reasonable doubt” about whether the acquisition of $6 worth of raw milk cheese from Michael Schmidt constituted a sale. That decision was essential to allowing the judge to then rule on whether cow shares are subject to Ontario milk laws.

In the end, the judge determined that cow shares are outside regulatory oversight based on the following:

  • That legislation is subject to a “dynamic” based on cultural, social, and historical factors. In other words, raw milk doesn’t pose the same dangers it might have been seen to pose in the 1930s, when much of Ontario’s dairy legislation was passed.
  • That Michael Schmidt wasn’t “marketing” the cow shares. “There was no advertising and sale (of raw milk) to the general public…Cow shares are a legitimate private enterprise that does not constitute marketing in Ontario.”
  • Perhaps most intriguing, that “the people who are permitted to buy the milk are fully informed” via a special booklet, identification cards, regular newsletters, and other steps Michael Schmidt took on behalf of his members.  “There is no evidence of any illness” in all the years Michael Schmidt has been distributing raw milk, he observed, and tests by the regulatory authorities never found any evidence of pathogens.

Judge Kowarsky obviously gave the case a huge amount of time and consideration. He In addeitionto researching other cases, he reviewed cow share procedures in the United States and Australia,and rules regarding sale of raw milk in Europe. It made me wish that the New York state judge who ruled against Meadowsweet Dairy on a very broad definition of the term “consumer,” might have done the same kind of analysis.

Max Kane, the owner of a Wisconsin raw dairy buyers club facing legal problems of his own, said, “I want that judge for my case.” He drove overnight from Wisconsin to Newmarket to hear the court decision. Another American raw milk “celebrity” in attendance was Tim Wightman of the Farm-to-Consumer Foundation.

Michael Schmidt was all smiles afterwards. “It’s an incredible relief,” he told me. Especially given the judge’s observation that the amount of potential fines had Michael been found guilty couldhave been “astronomical.”

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