R. v. Schmidt |
2014 CarswellOnt 2796 |
Ontario Court of Appeal
Commercial law --- Trade and commerce — Marketing controls — Offences
Accused appealed his convictions for several counts of selling and distributing of unpasteurized milk and cheese, operating unlicensed milk plant contrary to Milk Act, and failing to obey order of the Public Health Inspector — At trial, Justice of Peace accepted accused's argument that providing milk to those who had entered cow-share agreements was not caught by legislation and acquitted accused on all charges — That judgement was reversed on appeal — Accused was milk farmer who produced and advocated consumption of unpasteurized milk — Sale and distribution of unpasteurized milk and milk products was prohibited by Health Protection and Promotion Act ("HPPA") — However, HPPA did not prohibit consumption of unpasteurized milk and individual could legally consume unpasteurized milk obtained from his or her own cow — Accused provided unpasteurized milk and milk products to individuals who paid capital sum to acquire fractional interest in cow in what he described as "cow share agreement" — Accused testified that cow-share members also paid amount per litre to cover the cost of keeping cow and producing milk — Accused did not have licence to operate his plant pursuant to Milk Act and he was subject to cease and desist order issued by Public Health Inspector forbidding accused from storing and displaying unpasteurized milk and milk products — Appeal dismissed — Transactions involving unpasteurized milk that formed subject of charges fell squarely with ordinary meaning of words "sale" and "distribute" as did accused's dairy operation fall within ordinary meaning of "plant" and "premises in which milk or cream or milk products are processed" — Court did not accept the submission that cow-share agreement amounted to arrangement that took accused's activities outside reach of HPPA and Milk Act — Oral cow-share agreement did not transfer ownership interest in particular cow or in herd as whole — Member did not acquire or exercise rights that ordinarily attached to ownership — Member was not involved in acquisition, disposition or care of any cow or of herd — Cow-share arrangement was nothing more than marketing and distribution scheme that was offered to public at large by accused.