On March 11, 2014, the Ontario Court of Appeal released its decision in R. v. Schmidt. The Court dismissed Michael Schmidt’s appeal of convictions for unlawfully selling unpasteurized milk known as his “cow-share arrangement.”
Mr. Schmidt is a milk farmer who advocates for the right to consume and produce unpasteurized milk. He created a “cow-share arrangement” in which individuals that paid him a sum of money acquired a fractional interest in a cow. Cow-share members –individuals who bought a part interest in a cow – in exchange received raw milk. The cow-share members, however, did not own any particular cow or the business that Mr. Schmidt was operating. Under the arrangement, there was no transfer of ownership of any interest or property.
While a Justice of the Peace initially acquitted Mr. Schmidt at trial, the Crown appealed to the Ontario Court of Justice. On appeal, Mr. Schmidt was convicted of 13 charges under the Health Protection and Promotion Act (HPPA), fined $9,150 and sentenced to one-year probation.
In dismissing, Mr. Schmidt’s further appeal, the Court of Appeal found that the cow-share arrangement was a “scheme” and Mr. Schmidt was unlawfully selling and distributing unpasteurized milk in contravention of the HPPA.
The Court also dismissed Mr. Schmidt’s argument that the cow-share members’ section 7 Charter rights were violated. In doing so, the Court held “a s. 7 violation cannot be made out on the basis of an individual’s subjective believe that a banned substance would benefit his or her health.” Further, the Court noted: “There is no scientific or medical evidence of the kind contemplated in Mernagh to support the proposition that consumption of unpasteurized milk would benefit the health of any cow-share member.”
What we can take from this case is that individuals should use caution when entering into private arrangements or memberships to avoid regulatory compliance. If the arrangement is not permitted by law and the regulation is within the government’s power to enact, the individual or corporation risks orders, fines or, in some cases, imprisonment for such schemes.
The full decision of the Ontario Court of Appeal can be found here.
For more information about regulatory, health and safety compliance, please contact Meghan Ferguson or another member of DSF’s Regulatory, Health & Safety Group.
Also, DSF is hosting a very informative Health & Safety Seminar on April 11, 2014 at Intercontinental Yorkville in Toronto. This seminar will feature topics such as:
– Learn about the new Occupational Health and Safety Act Regulation (O. Reg 297/13)
– Understand the duties of employers, supervisors and workers under the new OHSA Regulation
– Discover strategies for managing compliance and reducing liability for your organization and employees
– Find out how to effectively manage a Ministry of Labour Inspection or Investigation to ensure OHSA compliance and protect your organization.
Visit the registration page to find out more information.