Court File No. 939.12.0042
COURT OF JUSTICE
HER MAJESTY THE QUEEN
PETITION FOR INTERVENER STATUS
OF JAMES MCLAREN
1. The existing Ontario health laws and dairy industry have no lexicon
to distinguish between raw milk that may be hazardous to consume raw,
and raw milk that is safe to consume raw. The former applies to raw
milk produced under current legislation. The latter applies to raw milk
made under a higher standard, such as used by GLENCOLTON FARMS, and
will be referred to hereinafter as Raw Drinking Milk.
2. This lack of a proper lexicon can be a source of confusion and misdirection
for all parties connected with the issue of Raw Drinking Milk.
3. I became a Raw Drinking Milk consumer in the year 2000 for dietary
reasons, i.e. I chose to consume only raw food.
4. Under the existing health laws it is illegal for dairy producers
to supply consumers with raw milk.
5. Since the year 2000 I have been seeking to have the health laws amended
to also permit the production and sale of Raw Drinking Milk. Appendix
A is a summary of my initiatives.
6. My campaign has reached the point where court action would be the
next logical step. As a consumer, I have legal arguments that bear directly
on the legality of raw drinking milk.
7. Therefore I petition the court to intervene in the proceeding of
The Crown v MICHAEL SCHMIDT so that all the relevant legal arguments
that bear upon the issue of Raw Drinking Milk from all stakeholders
can be consolidated and judged at one trial.
8. The enabling legislation for the Dairy Farmers of Ontario (hereinafter
DFO) is the Milk Act, R.S.O. 1990, Chapter M.12. It grants the DFO a
de facto carte blanche economic monopoly over all aspects of
dairy production from cows in Ontario and its marketing.
9. In exchange, one of the obligations of the DFO is to maximize Ontario’s
overall milk production, consistent with consumer demand. Section 2(a)
states, “The purpose and intent of this Act is to stimulate, increase
and improve the producing of milk within Ontario”
10. The GLENCOLTON FARMS dairy operation demonstrates the existence
of consumer demand for a dairy product not presently supplied by the
DFO, the availability of which would serve to increase overall dairy
production in Ontario consistent with the DFO’s mandatory legal
11. Raw milk can be produced in such a manner that it is safe for human
consumption. It must be produced with safety measures that compensate
for the removal of pasteurization from the production process. Such
procedures are used presently in all European countries except Scotland
and many US states.
12. The existing health laws prohibit the DFO from distributing raw
13. The DFO, however, incorrectly interprets this to mean that these
laws thereby prohibit them from testing out any of the European or US
procedures for Raw Drinking Milk that would be necessary to legally
amend the law here. This may be due in part to industry and government
confusion over the term “raw milk” as described in paragraphs
1 and 2 above. See the comments of John Karn, Secretary of the DFO Board,
in Appendices B-2 and B-4.
14. The regulatory oversight agency of the DFO is the Ontario Farm Products
Marketing Commission (hereinafter OFPMC). They support the DFO in its
incorrect interpretation of the law. See the comments of Dave Hope,
Chair of OFPMC in Appendix B-6.
15. It is a matter of fact that the existing health laws do permit the
DFO to test out any of the European or US procedures for Raw Drinking
Milk that would be necessary to legally amend the law here. See Appendix
C-2, an email from Dr. Jeff Farber, Director, Bureau of Microbial Hazards
for Health Canada, inviting an application for just such a safety assessment.
If there was any illegality connected with this for the DFO, it would
have been noted.
16. The DFO is therefore in violation of its obligations under the Milk
Act to maximize Ontario’s dairy production. The DFO has failed
to act in good faith for the monopoly rights it obtained under the legislation.
Had it done so, there would be no basis for the present legal proceedings
as against the Defendant MICHAEL SCHMIDT and thereby renders them null
17. Therefore consumers whose health has suffered by not having Raw
Drinking Milk can seek damages from the DFO and OFPMC, as could any
consumer deprived of the benefits of Raw Drinking Milk, which would
be part of my future legal proceedings and why I petition to intervene
in the present proceedings.
18. As stated above, there are procedures for Raw Drinking Milk which
provides microbial safety without pasteurization. Such procedures are
presently used in all European countries except Scotland and many US
19. As stated above, the DFO could, but refuses to take the initiative
to introduce production practices for Raw Drinking Milk.
20. The Competition Act applies to organizations that have a dominant
market position including legislated monopolies.
21. Section 78.(1)(g) of the Competition Act defines an anti-competitive
act to be, "adoption of product specifications that are incompatible
with products produced by any other person and are designed to prevent
his entry into, or to eliminate him from a market."
22. Such is the case of the DFO with respect to GLENCOLTON FARMS and
all other Raw Drinking Milk producers.
23. As a Raw Drinking Milk consumer, action under the Competition Act
against the DFO is warranted, which would be part of my future legal
proceedings and why I petition to intervene in the present proceedings.
24. The nonaction of the DFO as described above renders the existing
health laws in violation of the Canadian Charter of Rights and Freedoms,
which would be part of my future legal proceedings and why I petition
to intervene in the present proceedings.
25. These laws are, the requirement for mandatory pasteurization under
Section 18.(1) of the Health Protection and Promotion Act, R.S.O. 1990,
Chapter 17, and Food and Drug Regulation B.08.002.2.(1) of the Food
and Drugs Act (R.S., 1985, c. F-27).
26. Also included would be any associated laws that would impinge upon
the distribution of all-natural farm-fresh Raw Drinking Milk from producers
to consumers. These include, but are not necessarily limited to:
a) The mandatory requirement for a licensed milk plant if a dairy producer
wants to sell to consumers directly, per Section 18.(1) of the Health
Protection and Promotion Act, R.S.O. 1990, Chapter 17, and per Section
15.(1) of the Milk Act, R.S.O. 1990, Chapter M.12;
b) The mandatory requirement to be a licensed distributor if a dairy
producer wants to sell to consumers directly, per Section 15.(2) of
the Milk Act, R.S.O. 1990, Chapter M.12; and
c) The mandatory requirement for artificial vitaminization of all whole
milk sold in Canada, per Food and Drug Regulation B.08.003.(a) of the
Food and Drugs Act (R.S., 1985, c. F-27). Said requirement comes about
because of the deleterious effects to milk by commercial processing
and is obviated with properly prepared all-natural farm-fresh Raw Drinking
27. Raw Drinking Milk is legally available for sale under a legitimate
regulatory regime in all European countries except Scotland and many
US states. Therefore our existing health laws violate section 1 of the
Charter because Raw Drinking Milk is demonstrably justified in a free
and democratic society.
28. Many consumers perceive all-natural farm-fresh Raw Drinking Milk
as a differentiated product from commercially prepared pasteurized,
homogenized and artificially vitaminized milk. These differences include
but are not limited to:
a) The fact that Raw Drinking Milk has many superior nutritional properties
to commercial milk;
b) Some consumers can only consume Raw Drinking Milk since they have
adverse physical reactions to commercial milk;
c) Some women experience breast enlargement with Raw Drinking Milk and
not with commercial milk;
d) Dr. Johanna Budwig developed and promoted the Budwig anti-cancer
diet. She discovered that whole raw milk mixed with flax forms a complete
protein. For vegetarians, such as me, this is crucial information because
we avoid the most common source of protein, i.e. animal protein. Our
Charter rights are therefore violated by the non-availability of whole
Raw Drinking Milk.
e) Some consumers want pasteurization but with all-natural farm-fresh
raw milk (but not necessarily Raw Drinking Milk) as a base and to pasteurize
it themselves, as opposed to commercially pasteurized, homogenized and
artificially vitaminized milk. Double-walled home pasteurization pots
designed for reliable, consistent and safe results are commonplace in
f) There are reports of milk-borne pathogens which have survived pasteurization.
Consumers’ Charter rights are thereby violated by denying them
the choice of a drinking milk that has been rendered safe without the
use of pasteurization;
g) No food is 100% safe - there is always some degree of risk. Rather
than zero tolerance, food safety deals with acceptable levels of risk.
Provided Raw Drinking Milk is brought to within safe levels of risk,
as has commercial milk, the choice between the two would be no different
than buying a particular brand of automobile, which also carries a certain
degree of socially accepted risk including fatalities. Consumers’
Charter rights are therefore violated without having the available choice
of the differing relative risks and types of risk from consuming safe
Raw Drinking Milk versus safe commercial milk;
h) Some consumers want milk from a specific farm rather than commercial
milk which is pooled together from an unknown number of farms. One reason
is there have been some recent deaths and a miscarriage from commercial
milk that was properly pasteurized, possibly for the reasons stated
above in subsections (f) and (g). (See Appendix D). The odds of infection
are reduced with segregation as is the scope of an outbreak; and
i) Some consumers want to purchase their food directly from a producer
and believe their right to contract with other citizens is violated
when all dairy products must pass through a dairy.
For these reasons, the existing health laws violate section 7 of the
Charter, the right to life, liberty and security of the person.
29. The existing health laws such as they apply to raw milk (and not
Raw Drinking Milk, excepting subsection (e) below) violate the discrimination
provisions under section 15 of the Charter, including but not limited
a) Dairy producers and their families may legally consume their raw
milk, but not other consumers;
b) Any consumer, including children, may purchase any Raw Food of Animal
Origin and consume it raw, except raw milk. On their website, Health
Canada says, “Raw Foods of Animal Origin (RFAO’s) includes
meat, poultry, eggs, raw milk cheese, fish and seafood.” (Appendix
E). These other RFAO’s, except raw milk cheese, are hazardous
in their raw state and are sold without mandatory warning labels, whereas
raw milk may in fact be safe, depending upon how it was produced, but
its sale is banned;
c) Any consumer, including children, may purchase any RFAO except raw
milk, and, except for raw milk cheese, is expected to have the knowledge,
capability and equipment to achieve proper microbial safety by applying
the correct amount of heat for the correct duration. Raw milk is no
more hazardous than the other RFAO’s and it could be heat treated
by consumers just as easily as they now do with the other RFAO’s,
yet its sale is banned.;
d) Health Canada reports that RFAO’s are the cause of the majority
of Canada’s 30,000 foodborne illnesses each year. (Appendix E).
This number could be greatly reduced if all the other RFAO’s were
commercially “pasteurized” (heat treated) to achieve microbial
safety prior to consumer sale, as is done with raw milk. The fact that
they are not is discriminatory with respect to raw milk;
e) The consumer sale of one type of raw dairy product is permitted,
i.e. raw milk cheese, but other types are not, specifically either raw
milk, from which raw milk cheese is produced and sold to consumers,
or Raw Drinking Milk;
f) Consumers may purchase and freely consume products that are known
health hazards, e.g. alcohol and tobacco, but are prevented from buying
raw milk which may in fact be safe, depending upon how it was produced.
Alcohol is sold without mandatory warning labels notwithstanding its
known toxic and in some cases lethal effects and adverse behavioral
influences. Tobacco is a recognized carcinogen not only for smokers
but also for those inhaling second hand smoke, but it is sold with a
warning label. Both alcohol and tobacco have adverse effects on male
and female fertility, embryos and on the longer term development of
children exposed in the womb; and
g) Many poisonous consumer products are sold with a mandatory warning
label. But raw milk, which many farm families regularly consume raw
and otherwise is as easy to pasteurize as boiling an egg given the right
pot, is prohibited for consumer sale even with such a label.
Date: June 4, 2008
APPENDIX A - This is "THE
ISSUE AND EVENTS" PAGE prior to June 4, 2008.
APPENDIX B - This is the emails with the DFO and OFPMC - click
APPENDIX C - This is the emails with Dr. Jeff Farber, Health Canada
APPENDIX D - This is an online news article -
APPENDIX E - This is Health Canada's RFAO webpage -
HERE TO RETURN TO "WHAT'S NEW"
HERE TO RETURN TO "THE ISSUE AND EVENTS" PAGE