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Raw milk crusader takes fight to Ontario's top court

TORONTO - A crusading farmer and his supporters are taking their self-professed right to drink unpasteurized milk, which the government calls a "significant public health risk," to Ontario's top court this week.

Raw milk farmer Michael Schmidt is arguing that by making the sale and distribution of unpasteurized milk illegal, the province is infringing on both his and his customers' basic freedoms.

The charter includes "the right of individuals to make decisions pertaining to their own bodies and their own health," Schmidt's lawyers write in arguments filed with Ontario's Appeal Court.

"The appellant's long-standing efforts to make unpasteurized milk available to non-farmers have been an important and fundamental life choice, having demonstrably profound psychological, economic, social and ethical consequences for him."

But the province doesn't see it that way. The law is meant to protect public health and infringes neither Schmidt's nor his customers' charter rights, the government argues.

"Consumers of unpasteurized milk do not have a liberty or security of the person 'right' to consume unpasteurized milk," government lawyers say in their written arguments.

"Like selling unpasteurized milk, drinking unpasteurized milk is not a fundamental life choice."

Schmidt has been locked in a decades-long battle with the province — including a hunger strike — over raw milk, which he believes is not only safe, but offers health benefits.

The farmer from the municipality of West Grey was originally charged in 1994, and later convicted, of selling or distributing unpasteurized milk.

It's not illegal for farmers to drink raw milk from their own cows, so a few years later Schmidt devised a so-called "cow share" program, through which his approximately 150 customers bought ownership in a cow or herd for $300, $600 or $1,200.

Schmidt believes that's legal, through a concept known as agistment. An agister cares for livestock owned by other people, who are the ones entitled to the animals' products, Schmidt's lawyers say.

The Crown argues that Schmidt is still the one with legal title to the cows, as there is no evidence his customers "enjoy the benefit" of ownership except for a right to consume the milk and cheese products for a fee.

A provincial court judge convicted Schmidt in 2011 of 13 charges under the Health Protection and Promotion Act and the Milk Act and fined him $9,150. That decision overturned an earlier one, in which another judge had acquitted Schmidt.

The case will now go before the Court of Appeal for Ontario, set for arguments Wednesday.

Schmidt's lawyers want to admit some fresh evidence — a new study they say shows that unpasteurized milk reduces kids' risk of developing asthma or allergies.

Experts testified for the Crown at Schmidt's trial that raw milk is a known source of food-borne illnesses to which pregnant women, elderly people and others with compromised immune systems are particularly vulnerable.

"The sale and distribution of unpasteurized milk is a significant public health risk," the Crown writes in its Appeal Court arguments.

"People who drink unpasteurized milk can transmit illness by person-to-person contact to persons who do not drink unpasteurized milk, even if they do not themselves become ill."

Two raw milk consumers told the court in Schmidt's earlier case that raw milk had a positive impact on their health, but the judge ruled that it had no bearing on Schmidt's charges.

"Even if one were to accept the testimony proffered in support of the purported health benefits...the right of these individuals to consume raw milk is not prohibited by law," the Ontario Court judge wrote.

"Given the expressed restriction on the sale and distribution of raw milk and raw milk products...(Schmidt) could not acquire a right to sell or distribute raw milk simply because others establish a right to acquire it."

The judge also considered, and ultimately dismissed, constitutional arguments similar to what Schmidt is arguing on appeal. The farmer argues that the legislation is too broad, suggesting that under such a broad interpretation of "distribution" it would be illegal for one co-owner of a cow to hand a glass of milk to another co-owner.

The Crown says that there is no evidence anyone has ever been prosecuted for such a scenario, and argues that Schmidt would be found guilty even under the most restrictive interpretation of the law.

"(Schmidt) and his customers may be willing to assume the risks posed to their own health, but the sale and distribution of unpasteurized milk pursuant to 'cow-share agreements' risks the health of others and the public at large," the Crown writes.

"This is precisely the type of harm that the legislation was enacted to address."

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