You Don’t Have Two Cows

The laws of Ontario prohibit the sale or “distribution” of unpasteurized milk or products (like cheese) made from unpasteurized milk. Such milk can contain microbes and cause the people who drink it or eat products made from it to become ill. But some people are prepared to take the risk. They even claim, although without acknowledged scientific basis, that raw milk can have health benefits. A couple of farmers have come up with what they thought was an ingenious solution. Since the law does not prevent a person from drinking his or her own cow’s raw milk, they sold “cow-shares,” described as making those who bought them “part owner[s] of the milk production” of a cow of the farmers’ herd, and giving them access to raw milk, for an additional fee said to represent payment for the farmers’ taking care of and milking the cow.

Provincial authorities were not impressed, and fined the farmers for distributing unpasteurized milk. The farmers challenged the applicability of the laws prohibiting its distribution to their “cow-shares,” but also argued that, if the law was applicable to them, it was a violation of the guarantees of the security of the person and of liberty in s. 7 of the Canadian Charter of Rights and Freedoms. Yesterday, in R. v. Schmidt, 2014 ONCA 188, the Ontario Court of Appeal rejected their arguments.

On the applicability of the prohibition on the sale of raw milk to “cow-shares”, the court found that

[t]he 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 the appellant’s dairy farm, a right that is not derived from an ownership interest in any cow or cows (par. 25).

Indeed, although the shares were supposedly denominated in fractions of cows (the lowest being 1/4), the total of the fractions added up to more than the herd’s head-count. In short, “the cow-share arrangement is nothing more than a marketing and distribution scheme that is offered to the public at large by the appellant” (par. 26).

As for the Charter claim, the Court did not find a violation of either the right to the security of the person or of liberty. Regarding the security of the person, although some consumers of raw milk consider it as having health benefits, there was no objective evidence of these benefits, and subjective belief is not enough to make out a violation. Nor, says the court, is preventing a person from consuming a product on the ground that it could be dangerous equivalent to forcible medical treatment, since there is no interference with the person’s “bodily integrity” (par. 36). Regarding liberty, the Court was bound, and saw no reason to depart from, the Supreme Court’s jurisprudence holding that the choice of a line of business was not protected by the Charter. Like the choice to smoke marijuana, considered by the Supreme Court in R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, the choice to drink raw milk does not go to the core of personal autonomy which the Charter protects. Besides, and in any event, the ban on the sale of the distribution of raw milk does not breach principles of fundamental justice. Being motivated by demonstrated health concerns, it is neither arbitrary nor overbroad.

Legally, this is surely the correct result. The Supreme Court would need to overturn both its narrow reading of “liberty” and its rejection of the harm principle is one of the “principles of fundamental justice” to make the farmers’ claim viable, which is too bad ― if, that is, the microbes that can be transmitted through raw milk cannot subsequently be passed on from person to person. If they can, then the ban on raw milk is not merely paternalistic, but actually protects third parties who, unlike the consumers of raw milk did not undertake the risks voluntarily.

Perhaps a differently organized cow-share, designed to respond to the Court’s concerns ― identifying the specific cow a member owns, making the number of shares correspond to the number of cows, supplying the member with his or her own cow’s milk, etc., ― might still escape the application of the statute. Whether it would workable (and just how expensive it would be) is a different question. In the meantime, though cow-share members might think that they have two cows, or 1/4 of a cow anyway, they really don’t.

Author: Leonid Sirota

Law nerd. I teach constitutional law at the Auckland University of Technology Law School, in New Zealand. I studied law at McGill, clerked at the Federal Court of Canada, and then did graduate work at the NYU School of Law.

One thought on “You Don’t Have Two Cows”

  1. I’ve milked cows for over 40 years in Ontario, I’ve drank raw milk all of my life, raised nine children on it and when friends and relatives visited the farm they would often indulge in a cold glass of raw milk as well with no ill effect. In fact you can more or less go anywhere in the world and legally purchase raw milk, if not at the retail level or as is the case in many European countries in vending machines, one can at least purchase it directly from the farmer. Hell, the Queen of England has her own herd of Jersey cows and drinks raw milk! Yet, in Ontario the government for the sake of protecting its quota driven supply management system has made it absolutely illegal to sell it.

    I recently came across what was described as a “longstanding” analogy that some economists and business school professor’s use with respect to how dairy cows explain different economic systems…

    Socialism: You have two cows. The government takes one and gives one to your neighbor.

    Communism: You have two cows. The government takes them both and promises you milk but you starve.

    Capitalism: You have two cows. You sell one and buy a bull.

    Fascism: You have two cows. The government takes them both and sells you the milk.

    The legislation of the milk marketing system during the 60’s in Ontario and Canada resulted in the government/corporate-based manipulation and control of the dairy industry. Indeed, and as such laws were put in place in order to protect that fascist scenario.

    Judges are not supposed to be mere puppets or figureheads and one would think that they would be compelled to use common sense and reason when it comes to enforcing a law that is unjust as did Justice of the peace Paul Kowarsky in Ontario when he ruled in favor of Michael Schmidt and dismissed all 19 charges previous to this current ruling. Certainly, judges aught to have the wherewithal and discretion to suggest that politicians reexamine their laws when they find them to be outrageous, unreasonable, impractical, foolish, unjust and if applicable unconstitutional?

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