CITATION: R. v. Salverda, 2021 ONCJ 685

DATE: December 17, 2021

Information No. 4460 999 20 10669 00

ONTARIO COURT OF JUSTICE

IN THE MATTER OF THE PROVINCIAL OFFENCES ACT R.S.O. 1990

HER MAJESTY THE QUEEN

v.

JORIS SALVERDA

REASONS FOR JUDGMENT DELIVERED BY

HIS WORSHIP JUSTICE OF THE PEACE L. PHILLIPPS

on Friday, December 17, 2021

at KITCHENER, Ontario

Appearances:

Mr. D. Kappos Provincial Prosecutor (via Zoom)

Mr. J. Salverda In person (via Zoom)

FRIDAY, DECEMBER 17, 2021

THE COURT: So the matter before the Court today is here for Judgment, I'm prepared to proceed.

Reasons for Judgment

PHILLIPPS, J. (Orally):

Joris Salverda is charged with one count of operating a plant without a licence from the Director contrary to the Milk Act of Ontario, section 15(1).

The prosecution bears the onus of proof and the standard of proof is beyond a reasonable doubt.

A trial was held in this matter. Mr. Salverda represented himself.

At the outset, the parties submitted a signed agreed statement of fact. I appreciate the good work done by both the prosecution and the defence in preparing for this trial. I also acknowledge the professional conduct of the parties during the trial.

The Legislation

Section 15(1) of the Milk Act sets out:

"No person shall operate a plant without a licence therefor from the Director".

And at section 1 of the Act, the following definitions are provided:

“plant” means a cream transfer station, a milk transfer station or premise in which milk or cream or milk products are processed;

“milk” means milk from cows or goats;

“milk product” means any product processed or derived in whole or in part from milk, and includes cream, butter, cheese, cottage cheese, condensed milk, milk powder, dry milk, ice cream, ice cream mix, casein, malted milk, sherbet and such other products as are designated as milk products in the regulations.

“licence” means a licence provided for under this Act or the regulations.

“Director” means, in respect of a provision of this Act or the regulations, the Director appointed under this Act by the person who is responsible for the administration and enforcement of the provision".

I will note at the outset, that although the production, packaging and sale of raw milk arose during the trial at many stages, the defendant was not charged with any raw milk offences. It became evident that he is the subject of a public health order but that is not the subject of this trial.

The Facts

It was jointly submitted that the defendant was the subject of a complaint and that an investigation was initiated by the Ontario Ministry of Agriculture, Food, Rural Affairs; Regulatory Compliance Unit, which involved surveillance and the execution of a search warrant at the defendant’s farm.

At that farm, between November 6, 2019 and February 6, 2020, the defendant participated in the regular milking of 16 lactating jersey dairy cows. That milk was collected, processed and packaged as milk and milk products including yogurt, quark, sour cream, cream cheese, ghee, kefir and butter.

The defendant was the principal of the dairy operation at the farm, including the functions of milking the cows and processing the milk.

The milk building was equipped with utensils used for milking, processing, handling, packing and storage of milk and milk products from the cows. This included a walk-in-cooler, bulk tank, separator, proofer, butter churn, glass jars, boxes for the storage of milk in jars and other utensils.

The defendant did not have a licence as defined by the Milk Act.

The defendant was observed on at least 6 occasions during the offence period to use a Mercedes Sprinter Van to deliver raw milk to at least seven locations in the greater Toronto area. The van would be driven to parking lots where customers would attend to purchase raw milk and milk products.

Laboratory testing of the milk and milk products seized during the search warrant confirmed that they had been fully derived from cow’s milk.

I find as fact that the defendant was the operator of a plant as identified by the Milk Act between the offence dates and that the plant was not licenced as contemplated by the Act.

The Defence

Essentially, the defendant seeks acquittal on the charges on the basis that the law should apply to some, but asks that the Court find that the licencing requirements don’t apply to him.

No notice had been given pursuant to section 109 of the Courts of Justice Act and the defendant made it repeatedly and abundantly clear that he was not raising a constitutional challenge nor was he seeking relief based upon any notion of a violation of his Charter protected rights.

He instead asked the Court to draw a distinction between operating his business as a matter of right, rather than as a matter of permit.

The defendant submits that he “sees statutory laws and current distribution systems as being relative, rather than absolute” and that “the benefit of government oversight and protection cannot be imposed. Our liberty to engage in risky activities ensures there is a means of opting out of government protection.”

Opting out of government protection equates to opting out of the laws of Ontario.

It became clear from witness testimony that Mr. Salverda has been selling raw milk to customers for more than a decade.

He submits that he doesn’t advertise, uses a van without any markings and heavily tinted windows so people can’t observe what’s happening inside. He keeps the door locked and only opens it to customers. The van moves from place to place where customers await his arrival. The defendant testified that this demonstrates that the sales are private rather than public. These actions could also be interpreted as operating a clandestine raw milk sales business and efforts to avoid detection.

And therein lies the problem for Mr. Salverda. The law requires him to have a licence for his milk plant, but the business of raw milk sales is completely inconsistent with complying with the terms of the Milk Act.

As a pre-requisite to buying raw milk from Mr. Salverda, who is known to his customers as “George the Milk Man”, is the completion of a quiz and waiver. It is submitted that this exercise effectively eliminates his obligations under the law; I disagree. There are no provisions found either under the Milk Act or the Provincial Offences Act which would permit the contracting out of the legislation. Nor is it appropriate to apply the civil concept of buyer beware as advanced by the defendant.

The intent of the legislation includes the control and regulation in any or all respects of the quality of milk, milk products and fluid milk products within Ontario. This is public welfare legislation. The evidence before the Court is that unpasteurized milk contains bacteria which poses a risk of disease. Exhibit seven sets out a list of serious, and potentially deadly, infections that may result from the consumption of raw milk. Thus, the need to legislate safeguards.

The defendant argues that those safeguards should be optional where people are informed and choose to partake. The argument is that adults should be able to make their own decisions and laws should not confine risk takers. Unfortunately, public health risks and the risks to the milk industry are not eliminated by informed consent.

The Ontario Court of Appeal has clearly annunciated the law in Ontario in their decision in R. v. Schmidt, 2014 ONCA 188 at paragraph 40 it states,

"preventing an individual from drinking unpasteurized milk does not fall within the irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference”: Godbout v. Longueuil (City), 1997 CanLII 335 (SCC), [1997] 3 S.C.R. 844 at paragraph 66,

And in R. v. Schmidt, 2014 ONCA 188, paragraph 23,

"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", Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75, 2013 ONCA, paragraph 75

And quoting again from R. v. Schmidt paragraph 25,

"This court has resisted schemes that purport to create “private enclaves”, immune from 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". Kennedy v. Leeds, Grenville and Lanark District Health Unit, 2009 ONCA 685, 2009 ONCA 685 at paragraphs 45-47.

Public welfare legislation, such as the Milk Act, are meant to provide for the protection of all persons regardless of their particular point of view, opinion or preference.

The motorcycle rider who prefers not to wear a helmet will receive the same million dollars worth of medical care and rehabilitation as the one who does. The selfish desires and risks taken by some do not outweigh the necessity to legislate safe practices.

One does not have to be a historian to look to the suspected source of the COVID-19 global pandemic traced to an exotic food market in Wuhan, China where it was reported that unapproved animals were being sold for consumption. Even if those customers were aware of the risk of disease and chose to partake, the consequences for the world far outweighed any right they perceived they had to take such a risk.

And any notion that unregulated milk production and distribution carries risk only for those who knowingly choose to partake can not be supported in a nation with universal health care and hospitals operating at thin margins. In fact, legislation was enacted because hospital beds were full of sick children. The Hansard Transcript of the Legislative Assembly of Ontario from December 7, 2006 makes reference to the introduction of pasteurization in Ontario. Quoting,

“Pasteurization came about in 1938. It came about when the then Premier of Ontario, Michael Hepburn, visited two hospitals in Toronto. He visited Sick Kids Hospital and Toronto General Hospital, and he viewed row upon row upon row of cots of children who had been impacted by the effects of drinking raw milk and the disease tuberculosis, which they had contracted. So in the throne speech of 1938, with his government, he brought in pasteurization to make sure that all Ontario would be protected.”

DEFINITION OF PUBLIC

The term ‘public’ is not defined in the Act. Bell ExpressVu Ltd. Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at paragraph 26 states

"Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament".

In R. v. D'Angelo, 2002 CanLII 12379 (ON CA), 2002 CarswellOnt 3819, the Ontario Court of Appeal relied upon the definition of public as follows: At paragraph 15

"The New Oxford Dictionary of English (Oxford: Clarendon Press, 1998) defines "public" as "of or concerning the people as a whole" and "open to or shared by all the people of an area. These definitions fit the swimming pool operated by the club in the present case".

In that case, a swimming pool of a club was at issue. The Court held that despite the requirement for an application to join, the pool was a public place. The decision of the Court is inconsistent with the position of the defence that public denotes a condition which is indiscriminate about who can partake.

Further, in R. v. Kennedy 2009 ONCA 685, the Ontario Court of Appeal commented on the interpretation of public welfare legislation. In that case the Court was considering the Occupational Health and Safety Act. Similarly, I find that the Milk Act is also public welfare legislation.

In quoting from that decision, paragraph 44,

"I agree with the respondent that the Act is public welfare legislation designed to promote public health and safety. Such legislation attracts an interpretation that is consistent with its objective". In Ontario (Ministry of Labour) v. Hamilton (City) at paragraph 16, this court said, "Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme. Narrow or technical interpretations that would interfere with or frustrate the attainment of the legislature's public welfare objectives are to be avoided".

And continuing with this quotation

“Similarly in R. v. Timminco Ltd. (2001), 2001 CanLII 3494 (ON CA), 54 O.R. (3d) 21 (Ont. C.A.) at paragraph 22, this court said, "The Occupational Health and Safety Act is a public welfare statute. The broad purpose of the statute is to maintain and promote a reasonable level of protection for the health and safety of workers in and about their workplace. It should be interpreted in a manner consistent with its broad purpose".

At paragraph 47,

"If such an appellant's position was accepted, everyone who belonged to a private club would be exempt from the Act, even if the club chose to operate in a public place. Such an interpretation of the Act would defeat its objectives of protecting the public”.

The public, as contemplated by the act, is not limited to vulnerable persons. The defendant misinterprets the decision in Aronberg v. Federal Trade Commission which he commends to this Court. In fact, the Circuit Court Judge defining the public in that case found that vulnerable people were merely included in what he termed “that vast multitude”. The fact that all customers are referred by others doesn’t change that. The fact that the defendant knows the customer’s names and cars and the names of their children doesn’t change that. The evidence before me, especially the testimony of Ms. Hughes, reveals that these are business relationships. I find that Ms. Hughes and the other customers are the public.

The activities undertaken by the defendant are not akin to his suggestion that it is the same as serving someone in his kitchen, far from it. He is operating a business that includes a milk plant for which there is no licence.

The defendant submits that every jurisdiction has its boundaries. The Ontario Court of Justice is a court of statute. The role of this Court is to determine if the defendant breached the legislation. And, similar to the position of Justice Gropper in Fraser Health Authority v. Jongerden 2010 BCSC 355, it is not my role to excuse the defendant from the application of the law or to grant him the remedy which he seeks.

I find that the defendant has not successfully advanced that he was duly diligent or that the law is inapplicable in this situation. I find that a licence was required. I am satisfied beyond a reasonable doubt that the Crown has met their onus and I find the defendant guilty of operating the milk plant without a licence.

FORM 2

Certificate of Transcript

Evidence Act, subsection 5(2)

I, Julie Lass, certify that this document is a true and accurate transcript of the recording of A. Norgate in the matter of R. v. J. Salverda in the Provincial Offences Court held at 77 Queen Street, North, Kitchener Ontario, taken from Recording No. 101_20211217_083951(Zoom), which has been certified in Form 1.

January 21, 2022 J. Lass, CCR

(Date) Authorized Court Transcriptionist