R. v. Schmidt (M.), (2014) 318 O.A.C. 53 (CA)

• Judge: Weiler, Sharpe and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 05, 2014
• Jurisdiction: Ontario
• Citations: (2014), 318 O.A.C. 53 (CA);2014 ONCA 188

R. v. Schmidt (M.) (2014), 318 O.A.C. 53 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. MR.039

Her Majesty the Queen (respondent on appeal) v. Michael Schmidt (applicant on appeal)

(C55843; 2014 ONCA 188)

Indexed As: R. v. Schmidt (M.)

Ontario Court of Appeal

Weiler, Sharpe and Blair, JJ.A.

March 11, 2014.

Summary:

The accused was a milk farmer who produced and advocated the consumption of unpasteurized milk. The sale and distribution of unpasteurized milk and milk products was prohibited by the Health Protection and Promotion Act (HPPA). The HPPA did not prohibit the consumption of unpasteurized milk and an individual could legally consume unpasteurized milk obtained from his or her own cow. The accused entered into a "cow-share agreement" with several individuals, wherein those individuals paid a capital sum to acquire a fractional interest in a cow and the accused provided them with unpasteurized milk and cheese. The accused was charged with several counts of selling and distributing unpasteurized milk and cheese contrary to the HPPA, operating an unlicensed milk plant contrary to the Milk Act, and failing to obey an order of the Public Health Inspector. The accused argued that he did not violate the HPPA or Milk Act by providing unpasteurized milk to individuals who had entered into cow-share agreements. He further submitted that those statutory prohibitions were contrary to s. 7 of the Charter. A justice of the peace acquitted the accused of all charges, finding that his provision of milk to those who had entered into cow-share agreements was not caught by the legislation. The Crown appealed.

The Ontario Court of Justice found that the justice of the peace had erred in his approach to statutory interpretation. The court also concluded that there was no Charter violation. Given the preponderance of scientific evidence as to the risk to public health posed by unpasteurized milk, the legislation did not violate the principles of fundamental justice on the grounds that it was arbitrary or overbroad. The court convicted the accused on 13 counts and imposed fines totalling $9,150 and one year of probation. The accused appealed the convictions.

The Ontario Court of Appeal dismissed the appeal.

Civil Rights - Topic 646.2

Liberty - Limitations on - Imprisonment for non-payment of fine - [See second Civil Rights - Topic 726 ].

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - Schmidt, a milk farmer, provided unpasteurized milk and milk products to individuals under a "cow-share agreement", wherein those individuals paid Schmidt and acquired a fractional interest in a cow - Schmidt was convicted of selling and distributing unpasteurized milk and cheese contrary to s. 18 of the Health Protection and Promotion Act (HPPA), and operating an unlicensed milk plant contrary to s. 15 of the Milk Act - He appealed, arguing that the s. 18 of the HPPA and s. 15 of the Milk Act violated the principles of fundamental justice because they were arbitrary and overbroad - The Ontario Court of Appeal dismissed the appeal - The scientific evidence respecting the consumption of unpasteurized milk easily reached the standard of "sufficient evidence to give rise to a reasoned apprehension of harm to permit the legislature to act" - The law did not offend the overbreadth principle by targeting all unpasteurized milk - There was no evidence that the legislature could somehow narrow the reach of the legislation and still achieve its purpose of protecting public health - See paragraphs 45 and 46.

Civil Rights - Topic 726

Liberty - Charter of rights and freedoms - Denial of liberty - What constitutes - Schmidt, a milk farmer, provided unpasteurized milk and milk products to individuals under a "cow-share agreement", wherein those individuals paid Schmidt and acquired a fractional interest in a cow - Schmidt was convicted of selling and distributing unpasteurized milk and cheese contrary to the Health Protection and Promotion Act (HPPA), and operating an unlicensed milk plant contrary to the Milk Act - He appealed, arguing that the HPPA and Milk Act infringed his liberty interest by limiting his right to freedom of contract and the freedom of the cow-share members to make a decision of fundamental personal importance (Charter, s. 7) - The Ontario Court of Appeal dismissed the appeal - Section 7 did not protect freedom of contract or the right to engage in the economic activity of one's choice - Section 3 of the Ontario Human Rights Code, which recognized the right to contract on equal terms without discrimination on enumerated grounds, did not create a free standing right to freedom of contract - Preventing an individual from drinking unpasteurized milk did not fall within the "irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference" - Lifestyle choices as to food or substances to be consumed did not attract Charter protection - Such choices were not basic choices that went to the core of what it meant to enjoy individual dignity and independence - See paragraphs 37 to 40.

Civil Rights - Topic 726

Liberty - Charter of rights and freedoms - Denial of liberty - What constitutes - Schmidt, a milk farmer, provided unpasteurized milk and milk products to individuals under a "cow-share agreement", wherein those individuals paid Schmidt and acquired a fractional interest in a cow - Schmidt was convicted of selling and distributing unpasteurized milk and cheese contrary to the Health Protection and Promotion Act (HPPA), and operating an unlicensed milk plant contrary to the Milk Act - He was fined $9,150 and subjected to one year of probation - Schmidt appealed the convictions, arguing that the HPPA and Milk Act violated his s. 7 Charter rights - He submitted that security of the person was engaged because he was liable to probation and a fine, and imprisonment if the fine was not paid - The Ontario Court of Appeal disagreed, stating "The statutory terms of probation (Provincial Offences Act ... s. 72(2)) - that the defendant not commit the same or any related or similar offence, or any offence that is punishable by imprisonment; appear before the court as and when required, and notify the court of any change in the defendant's address - do not have a significant impact on the appellant's liberty." - The risk of imprisonment in default of payment of a fine under the Provincial Offences Act was sufficiently remote that it did not engage the liberty interest under s. 7 - See paragraphs 41 to 44.

Civil Rights - Topic 785

Liberty - Particular rights - Contractual freedom - [See first Civil Rights - Topic 726 ].

Civil Rights - Topic 1206.1

Security of the person - General - Right to personal autonomy - [See first Civil Rights - Topic 726 ].

Civil Rights - Topic 1210

Security of the person - General - Denial of security - What constitutes - Schmidt, a milk farmer, provided unpasteurized milk and milk products to individuals under a "cow-share agreement", wherein those individuals paid Schmidt and acquired a fractional interest in a cow - Schmidt was convicted of selling and distributing unpasteurized milk and cheese contrary to the Health Protection and Promotion Act (HPPA) - He appealed, arguing that by banning the sale and distribution of unpasteurized milk and thereby depriving cow-share members of the right to acquire a product they deemed beneficial to their health, the HPPA violated their right to security of the person (Charter, s. 7) - The Ontario Court of Appeal dismissed the appeal - A s. 7 violation could not be made out on the basis of an individual's subjective belief that a banned substance would benefit his or her health - There was no scientific or medical evidence to support the proposition that consumption of unpasteurized milk would benefit the health of any cow-share member - See paragraphs 34 to 36.

Civil Rights - Topic 1391

Security of the person - Health care - General - [See Civil Rights - Topic 1210 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle - [See Civil Rights - Topic 686 ].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 686 ].

Health - Topic 1203

Public health legislation - General - Application - Schmidt, a milk farmer, provided unpasteurized milk and milk products to individuals under a "cow-share agreement", wherein those individuals paid Schmidt and acquired a fractional interest in a cow - Schmidt was charged with selling and distributing unpasteurized milk and cheese contrary to the Health Protection and Promotion Act (HPPA), and operating an unlicensed milk plant contrary to the Milk Act - A justice of the peace acquitted Schmidt, finding that the provision of milk to those who had entered into cow-share agreements was not caught by the legislation, as these were essentially private arrangements - An appeal judge found that Schmidt had violated both statutes and convicted him - The Ontario Court of Appeal dismissed Schmidt's appeal - The cow-share agreements did not take Schmidt's activities outside the reach of the HPPA and Milk Act - The court stated that "The oral cow-share agreement does not transfer an ownership interest in a particular cow or in the herd as a whole. The member does not acquire or exercise the rights that ordinarily attach to ownership. The member is not involved in the acquisition, disposition or care of any cow or of the herd. The cow-share member acquires a right of access to the milk produced by [Schmidt's] dairy farm, a right that is not derived from an ownership interest in any cow or cows. As the appeal judge put it ... 'the cow-share arrangement approximates membership in a "big box" store that requires a fee to be paid in order to gain access to the products located therein.' This court has resisted schemes that purport to create 'private' enclaves immune to the reach of public health legislation and has insisted that public health legislation not be crippled by a narrow interpretation that would defeat its objective of protecting the public from risks to health ... For similar reasons, I cannot accept [Schmidt's] submission that the Milk Act licence requirement does not apply to [his] operation. The Milk Act makes no exception for 'private' operations. Even if it did, [Schmidt] operates a plant from which any member of the public can procure unpasteurized milk." - See paragraphs 25 to 28.

Health - Topic 1241

Public health legislation - Offences - General - [See Civil Rights - Topic 686 , both Civil Rights - Topic 726 and Civil Rights - Topic 1210 ].

Practice - Topic 9031

Appeals - Evidence on appeal - Admission of "new evidence" or "fresh evidence" - Schmidt was convicted of selling and distributing unpasteurized milk and cheese contrary to the Health Protection and Promotion Act (HPPA), and operating an unlicensed milk plant contrary to the Milk Act - He appealed and moved to introduce as fresh evidence an affidavit of an expert witness who gave an opinion based on a recently published article regarding the protective effect of unpasteurized milk on childhood asthma and atopy - The Ontario Court of Appeal held that the fresh evidence should not be admitted because it would not have affected the result at trial - First, it essentially replicated evidence that was led at trial to the effect that unpasteurized milk could benefit children who had asthma and allergies - Second, the recent study referred to in the affidavit concluded that despite those beneficial effects, raw milk consumption could not be recommended because it might contain pathogens - See paragraphs 29 to 31.

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - Schmidt, a milk farmer, provided unpasteurized milk and milk products to individuals under a "cow-share agreement", wherein those individuals paid Schmidt and acquired a fractional interest in a cow - Schmidt appealed his conviction for contravening s. 18 of the Health Protection and Promotion Act (HPPA), which prohibited the sale and distribution of unpasteurized milk and milk products - He argued that as the HPPA did not define the term "distribute", reference should be had to the definition of "distributor" in the Milk Act, a closely related statute - That definition referred to milk products that had been pasteurized - Schmidt argued that since he was not distributing pasteurized milk, he did not "distribute" unpasteurized milk within the meaning of s. 18 of the HPPA - The Ontario Court of Appeal rejected this submission, stating "It would produce an absurd result that would eviscerate s. 18 of any meaning. ... It is well-established that public welfare legislation is to be accorded a broad and liberal interpretation that is consistent with its purpose. Narrow interpretations that would frustrate the legislature's public welfare objectives are to be avoided ... The transactions involving unpasteurized milk that form the subject of the charges fall squarely with the ordinary meaning of the words 'sale' and 'distribute' as does the appellant's dairy operation fall within the ordinary meaning of 'plant' and 'premises in which milk or cream or milk products are processed'." - See paragraphs 22 to 24.

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See Health - Topic 1203 ].

Statutes - Topic 516

Interpretation - General principles - Ordinary meaning of words - [See first Statutes - Topic 501 ].

Statutes - Topic 2402

Interpretation - Interpretation of words and phrases - General principles - Avoidance of absurdity - [See first Statutes - Topic 501 ].

Trade Regulation - Topic 3601

Marketing of agricultural products - Dairy products - General - [See Health - Topic 1203 ].

Cases Noticed:

Blue Mountain Resorts Ltd. v. Ontario (Minister of Labour) et al. (2013), 302 O.A.C. 124; 2013 ONCA 75, refd to. [para. 23].

Ontario (Minister of Labour) v. Hamilton (City) (2002), 155 O.A.C. 225; 58 O.R.(3d) 37 (C.A.), refd to. [para. 23].

Kennedy v. Leeds, Grenville and Lanark District Health Unit (2009), 254 O.A.C. 133; 2009 ONCA 685, refd to. [para. 25].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 29].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 33].

R. v. Mernagh (M.) (2013), 301 O.A.C. 333; 2013 ONCA 67, refd to. [para. 35].

R. v. Parker (T.) (2000), 135 O.A.C. 1; 49 O.R.(3d) 481 (C.A.), dist. [para. 35].

Fleming v. Reid and Gallagher (1991), 48 O.A.C. 46; 4 O.R.(3d) 74 (C.A.), refd to. [para. 36].

Siemens et al. v. Manitoba (Attorney General) et al., [2003] 1 S.C.R. 6; 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1; 2003 SCC 3, refd to. [para. 38].

Edward Books and Art Ltd. v. R. - see R. v. Videoflicks Ltd. et al.

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 38].

Godbout v. Longueuil (Ville), [1997] 3 S.C.R. 844; 219 N.R. 1, refd to. [para. 40].

R. v. Malmo-Levine (D.) et al. (2003), 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 2003 SCC 74, refd to. [para. 40].

London (City) v. Polewsky, [2005] O.A.C. Uned. 466; 202 C.C.C.(3d) 257 (C.A.), refd to. [para. 44].

Bedford et al. v. Canada (Attorney General) (2013), 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 46].

Cochrane v. Ontario (Attorney General) (2008), 242 O.A.C. 192; 2008 ONCA 718, leave to appeal refused (2009), 398 N.R. 398; 262 O.A.C. 395 (S.C.C.), refd to. [para. 46].

Statutes Noticed:

Canadian Charter of Rights and Freeedoms, 1982, sect. 7 [para. 2].

Health Protection and Promotion Act, R.S.O. 1990, c. H-7, sect. 18 [para. 11].

Milk Act, R.S.O. 1990, c. M-12, sect. 1 [para. 13]; sect. 15 [para. 12].

Ontario Human Rights Code, R.S.O. 1990, c. H-19, sect. 3 [para. 39].

Counsel:

Derek From and Chris Schafer, for the appellant;

Shannon Chace, Michael Dunn and Daniel Huffaker, for the respondent.

This appeal was heard on February 5, 2014, before Weiler, Sharpe and Blair, JJ.A., of the Ontario Court of Appeal. Sharpe, J.A., delivered the following judgment for the court on March 11, 2014.