By Karen Selick
Sitting in a courtroom listening to someone read 40 pages of closely written legal text is not something that I would ordinarily describe as a treat, but it was a genuine privilege to be in court last Thursday with dairy farmer Michael Schmidt to hear his acquittal on 19 charges relating to the distribution of raw milk.
First, there was Mr. Schmidt himself. He conclusively disproved the old saying that a man who represents himself in court has a fool for a client. At his trial a year earlier, he had acted as his own counsel — cross-examining prosecution witnesses, calling his own experts to give evidence and arguing complicated points of law. Arrayed against him were no fewer than five lawyers from various branches of the Ontario government, yet Mr. Schmidt emerged victorious.
But the other star of the show was Justice of the Peace Paul Kowarsky, author of a carefully thought-out and painstakingly crafted decision. His Worship noted candidly that “judges may engage in private research” and he had clearly done so. He quoted extensively from case precedents and legal textbooks on statutory interpretation, ultimately concluding that Mr. Schmidt had “done everything reasonably possible to … [remain] within the confines and the spirit of the legislation.” Since the charges against Mr. Schmidt fell into the category called “strict liability” offences, his diligent efforts to remain within the law constituted a defence.
Ontario, like all Canadian provinces, outlaws the sale of unpasteurized milk, but not its consumption. Mr. Schmidt had organized a “cow-share” program which allowed non-farm families to own a share of a cow and therefore a share of the milk. No selling or marketing was involved. Cow-share members were knowledgeable individuals engaging in a private contract for cow-tending services, not vulnerable members of the public at large whom the law is designed to protect.
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