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.

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