Michael Schmidt “Upbeat” As He Readies Himself for Appeals Court Date over Raw Milk in Canada
Canadian raw dairy farmer Michael Schmidt has been in legal limbo for about twenty years now. It’s difficult to even make that statement without wondering, first, about the system that allows such ongoing official pressures on one farmer, and second, about what it is like to live with such a situation.
All you have to do is know Schmidt even casually to appreciate you are dealing with someone who has deep strength, to possess the determination to stand up for his principals, and deep spiritual reservoirs, to do so without rancor or hatred.
But now, at long last, one part of his legal journey appears to be heading into the home stretch, into a period where the end may at long last be within sight, and with it, the realization that this dairy farmer, committed to biodynamic farming principles, could actually win, or lose, and that private raw milk availability in Canada could win or lose in the process.
“I hope for the best, but expect the worst,” he told me during a conversation on Saturday, about his date this Wednesday with the Court of Appeal for Ontario. This could be the last stop, or the next-to-last stop, on this particular leg of the legal journey—one which saw him win a court trial allowing his raw milk herdshare in 2010, and then lose on appeal in 2011…and the next year earn a rare appeal opportunity that has led to Wednesday's court date. The next stop would probably be the last, the Supreme Court of Canada, and likely whichever side loses will appeal to that final arbiter.
The legal journey actually began way before the 2009 decision, with raids and legal charges related to his herdshare arrangement for distributing raw milk that nearly destroyed his farm, and his family, in the 1990s. Sally Fallon chronicled some of that original history and drama in an article for the Weston A. Price Foundation’s publication back in 2002; it is now posted on the Realmilk site.
On Wednesday, the two sides in the Schmidt case will make their arguments at the Court of Appeal in Toronto. Schmidt’s lawyers, from the Canadian Constitution Foundation, will get two hours, and the government’s lawyers will get an hour. As part of Schmidt’s oral arguments, he expects to take twenty minutes to make a personal appeal, apart from what his lawyers argue.
“For me, there is this hypocrisy" that sees undue official attention given to raw milk. Moreover, he argues, “People have the right to opt out of the protection of the state.” That is what they do when they enter into a private contractual arrangement to obtain his milk, he says, and what the trial judge in 2009 ruled in acquitting him of multiple charges associated with violating Ontario milk laws.
A decision in the case almost certainly won’t come on Wednesday—the three appeals judges will take the case under advisement, with a decision coming weeks or months later. But the tenor and substance of their questions to lawyers may provide some indication as to their inclinations. It is difficult to predict their decision, Schmidt points out, because no other food-rights case has moved this far through the Canadian legal system. "Most farmers give up much earlier in the process."
Schmidt’s lawyers are basing the case on fundamental freedoms accorded under Canadian law for private contracts and freedom of association. They are also arguing that regulators used entrapment tactics back in 2006 when they allegedly caught him selling a small amount of cheese to two public health inspectors who weren’t members of his food club, in Toronto.
Ironically, as Schmidt’s legal case involving raw milk seems to lurch toward a conclusion, his other case, that involving a group accused of illegally removing Shropshire sheep from Ontario farmer Montana Jones’ farm in 2012, is just getting started. Though Schmidt, Montana Jones, and others were charged in late 2012, “There has been no preliminary hearing, and no trial date set,” Schmidt told me. The main issue being debated in court is a government effort to remove Schmidt’s lawyer, whom he says is highly competent and whom he wants to keep.
Definitely seems like a delaying tactic, to keep Schmidt tied up in another years-long legal saga. He did win a minor legal victory in the sheep case when his lawyer complained to a judge that the delay was being used to punish Schmidt by denying him travel privileges. The government relented, and now Schmidt is allowed to travel within Canada and internationally if he seeks approval in advance.
The twists and turns in Schmidt’s legal saga boggle the mind. They are nearly impossible to keep straight any more, even by those most closely involved. They speak to the economic threat raw milk poses to large dairy entities, and the importance both the Canadian and American governments have given over to establishing precedents to restrict food availability.