ONTARIO COURT OF JUSTICE
DATE: 2025-03-24
COURT FILE No.: Kitchener 23-27457
BETWEEN:
HIS MAJESTY THE KING
(Ontario Ministry of Agriculture, Food and Rural Affairs)
— AND —
JORIS SALVERDA
Before Justice of the Peace Anna M Hampson
Heard on December 6, 2024
Reasons for Judgment released on March 24, 2025
Demetrius Kappos................................................................... counsel for the Prosecution
The Defendant Joris Salverda................................................................ on his own behalf
JUSTICE OF THE PEACE HAMPSON:
[1] Joris Salverda (hereinafter called the Defendant) is charged with operating a milk plant without a licence issued by the Director contrary to s. 15(1) of the Milk Act, RSO 1990, c. M-12 as amended. He is also charged with breaching a Probation Order issued by Justice of the Peace Phillips on December 17, 2021, contrary to s. 75 of the Provincial Offences Act. The offences are alleged to have occurred between October 27, 2022, and April 27, 2023. The Defendant also filed a Notice of Constitutional Question. This Notice of Constitutional Question does not question the constitutional validity of the Milk Act. The Constitutional Question as framed by the Defendant is “Does the Milk Act, RSO 1990, and the burden to obtain a license to operate ‘plant’, per s. 15(1) thereof, apply to the Defendant’s particular affairs?”. The Defendant argues that the Milk Act, and thus the obligation to obtain a licence to operate his milk plant, does not apply to him. He is in essence challenging the applicability of the Act.
[2] For the following reasons, I find that the Prosecution has proven beyond a reasonable doubt that the Defendant operated a milk plant without a licence and that he breached the Probation Order dated December 17, 2021, by operating a milk plant without a licence. I also dismiss the Defendant’s “Notice of Constitutional Question” and find that the Milk Act does apply to the Defendant’s particular affairs. I do not find that there has been any violation of any rights the Defendant may have in the circumstances. I therefore find the Defendant guilty of the 2 charges.
EVIDENCE
[3] On December 6, 2024, the Defendant entered not guilty pleas. The matter proceeded on a blended basis in terms of the trial on the merits as well as the argument on the Constitutional Question. The Notice of Constitutional Question by the Defendant was filed as exhibit 1. The Notice of Prosecution’s Response to the Constitutional Application was filed as exhibit 2. The Agreed Statement of Facts was filed as exhibit 3. A photo of a van from 2021 was exhibit 4. A newspaper article from September 5, 2006, as referenced in the Defendant’s testimony was filed as exhibit 5.
[4] With the Agreed Statement of Facts admitted into evidence, the Prosecution closed its case. The Defendant then elected to testify. The Defendant was allowed to read in his testimony from a written document he prepared. This 6 page written document was not made an exhibit; however, it was provided to the Prosecution as well as to me for my use as notes. The Defendant testified verbatim from the written document. In cross examination, the Defendant confirmed that Ex 4, the photo, was a photo he took of the van referenced in the Agreed Statement of Facts. In answer to my questions, the Defendant testified that there is a separate charge for the bottle to get a refund. There is also a separate charge for what is in the bottle.
[5] With all the evidence admitted, the matter then proceeded to submissions on the Notice of Constitutional Question as well as on the merits. The Defendant provided another written document titled “Arguments of the Defendant”. A copy was provided to the Prosecution as well as to me for my use as notes. He read verbatim from this 34 page document. This was in essence his submissions. The Prosecution made oral submissions. The matter was then adjourned to March 24, 2025, for decision on the merits and the Constitutional Question.
FINDINGS
[6] I make the following findings of fact:
i) The Defendant was placed on probation by HW L Phillips for 2 years on December 21, 2021, due to a conviction under s. 15(1) of the Milk Act, for operating a milk plant without a licence: ASF para 2 and exhibit A therein.
ii) A milk plant was being operated by the Defendant between October 27, 2022, and April 27, 2023, at 2915 Huron Road in Wilmot, Ontario being the same location: ASF para 1 and 6, and exhibit B therein titled “George the Milkman”.
iii) Between October 27, 2022, and March 9, 2023, on 9 different dates, investigators from the Ontario Ministry of Agriculture, Food and Rural Affairs as it was known then, observed the Defendant distribute “milk” and “milk products” as defined in the Milk Act, from a Van (exhibit 4). The products were to customers of the Defendant and included locations in Toronto and Oakville: ASF para 4.
iv) In all instances, the Defendant was engaged in the act of making raw milk (unpasteurized milk) and milk products from his farm operation to his clients in exchange for money: ASF para 4.
v) On April 27, 2023, while the Defendant was present, the unmarked van was searched pursuant to a search warrant. Inside the van were boxes of jars filled with milk and milk products; paperwork packages with envelopes for new customers; a chalk board listing products available for customers including jersey milk, kefir, sour cream, butter, goat milk and goat yogurt; a built-in cooler with several butter bars; a cash box with cash and a calculator: ASF para 5.
vi) A dairy house on the farm contained equipment and utensils used for milking the cows, and for processing, handling, packaging, and storing the milk and milk products. This equipment included a walk in cooler containing boxes of jars of milk and milk products, a cream separator, 2 bulk tanks containing milk, 2 proofers containing milk products; sink, crates, utensils, empty glass jars, large stainless steel milk cans; white board listing products; shelving with lids labelled 4L Milk, 2L Milk, Yogurt, Sour Cream, and quark cream; a black board listing items such as jersey, milk, yogurt, kefir, butter; a desk with a cash box containing cash and a calculator; laptop computer displaying “Dairy Trace Program” which contained information about the number of cows milked and the quantities of milk produced; binder of cow inventory and individual cow information: ASF para 7 and 10.
vii) The barn on the property contained a milking parlour and pens to house cows and goats. Inside the barn were 20 lactating goats and 16 lactating cows, plus 5 other cows. The milk from these cows and goats is milk as defined in the Act: ASF para 8.
viii) A second floor storage room of the barn contained a large supply of new jars, containers, and lids: ASF para 9.
ix) Adjacent to the barn were 2 large chest freezers containing milk products: ASF para 9.
x) A booklet was found that contained photographs documenting the construction of the milk building including ones of the Defendant actively involved in the construction and installation of milking equipment: ASF para 11.
xi) There is no signage of any sort to invite the public to the Defendant for the purchase of milk or milk products, either at the van, or at the farm: ASF para 12.
xii) A 13 page document created by Defendant and provided by the Defendant to his customers is called “George the Milkman, Waiver” included a questionnaire to establish understanding and, requiring customers to acknowledge the hazards associated with the milk products existed, acknowledging that customers were only through referrals from other customers (or “George the Milkman” himself), and included a “explicit waiver” to the protection and oversight under the Milk Act, the Health and Protection Act, and the Food Quality and Safety Act, all of which customers were expected to sign and date: ASF exhibit B.
xiii) Customers are also provided with a Public Health Warning about the dangers of raw milk: ASF exhibit C.
[7] I find that the Defendant is “George the Milkman”, and that he obtained customers through a “referral” system, that he had his customers complete a questionnaire, that this questionnaire included, among others, an acknowledgment that he would take no responsibility for the quality of any milk or milk product he produced or sold, including any inspection or testing of any product, that the customer absolved “the Province of Ontario” and George the Milkman, that the customer assumed all risks for the product, that the customer acknowledged that George the Milkman was not licenced or regulated and so on.
[8] I also find that the Defendant between October 27, 2022, and April 27, 2023, operated a milk plant on the property in question and that he did not have a licence pursuant to the Milk Act. This finding was admitted by the Defendant.
[9] I also find that the Defendant, during this time, was subject to a 2 year Provincial Offences Probation Order dated December 21, 2021, for a conviction for operating a plant without a licence contrary to s. 15(1) of the Milk Act. Condition 1 of this Probation Order is:
The Defendant shall not commit the same offence or any related or similar offence, or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment.
[10] I find that the Defendant thus breached condition 1 of the probation order by operating a plant without a licence.
[11] Therefore, I am satisfied beyond a reasonable doubt of all the essential elements of both offences. I also find that no due diligence defence has been offered or established by the Defendant. Indeed, the Defendant is operating his milk plant deliberately and knowing full well that he does not have a licence as required and that he was on probation at the relevant time for a conviction for the same offence.
[12] The Defendant has brought a Charter application that challenges the “applicability” of the Milk Act to his affairs. The Defendant is not challenging the constitutional validity of the Milk Act and admits that the Milk Act is valid provincial legislation. If the Charter application is granted, then the charges are either dismissed or stayed. If the Charter application is dismissed, the Defendant is guilty of the two offences and the matter then proceeds to the sentencing phase.
CHARTER APPLICATION
[13] Although the Defendant’s Notice of Constitutional Question does not specifically indicate that the Defendant alleges a violation of his rights pursuant to any specific right set out in the Charter, I have reviewed the written Notice of Constitutional Question as well as the written “Arguments of the Defendant” which were read into the record and which I determine to be his submissions. I find that the Notice and the Arguments can be best examined and dealt with as an alleged violation of s. 7 of the Charter. The wording of s. 7 of the Charter is as follows:
S.7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[14] I understand the Defendant’s position is that the Milk Act does not apply to his affairs because his affairs are private matters between him and his customers, that he and his customers are free and ought to be free to engage in risky behaviour such as consuming raw milk and raw milk products, that the arrangements he has with his customers are conducted within full knowledge of the risks involved, that his customers have signed documents acknowledging the risks and the assumption of the risks. In the circumstances, the Defendant’s argument can be seen as an alleged violation of his right to liberty and that his right to liberty has been deprived contrary to the principles of fundamental justice. The Defendant’s position is that the Milk Act is public welfare legislation and since his operation is private, the Milk Act therefore does not apply to him.
[15] The Defendant in his written testimony and in his written arguments (both were allowed to be read into the record) also made references to his previous trial and that he was making the same arguments that he advanced therein. He was convicted: R v. Salverda, 2021 O.J. No. 7326. The lack of a Charter application was referenced by HW Philips at trial, the Ontario Court of Justice McKay on appeal: Salverda v Ontario (Ministry of Agriculture, Food and Rural Affairs), 2022 O.J. No. 6208, and by Justice Pardu on further appeal to the Ontario Court of Appeal, R v Salverda, 2023 O.J. No. 3221. The Supreme Court of Canada dismissed the Defendant’s leave application, Salverda v Ontario (Ministry of Agriculture, Food and Rural Affairs), 2023 S.C.C.A. No. 460. The Defendant’s current argument is that he has now brought a Charter application by filing the Notice of Constitutional Question and therefore the current case is different.
[16] The Prosecution’s position is that the issue of whether the Milk Act applies to private operations has already been decided by the Ontario Court of Appeal in the decision of R v. Schmidt, 2014 ONCA 188 which held that the Milk Act makes no exception for private operations. Thus, the Prosecution’s position is that even if the Defendant’s operation is viewed as a private affair, that the Milk Act still applies.
[17] The Prosecution further argues that the issue of a potential s. 7 Charter violation has already been decided in Schmidt which held there was no violation of s. 7 rights to security of the person, or liberty. The Prosecution argues that the Defendant’s arguments involving legal maxims, American caselaw, and other cases taken out of context or misconstrued do not advance the argument. The prosecution argues there has been no violation of s. 7.
CHARTER DECISION
[18] I find that the fact that the Defendant has now brought a formal “Notice of Constitutional Question” does not advance the Defendant’s arguments and position. Ultimately, he still argues that the Milk Act does not apply to him because his operation is private between him and his customers. His Charter application challenges the “applicability” of the Milk Act. His arguments were rejected in his previous trial as well as at both levels of appeal. The Defendant simply refuses to accept that the Court of Appeal in Schmidt has determined that there is no exception for private operations in the Milk Act. Although Schmidt involved the “cow sharing” system, Schmidt and the principles therein are not distinguishable. Even if Schmidt is not binding upon me, which I find in fact that it is binding, it is most persuasive and determinative.
[19] In Schmidt, Justice Sharpe on behalf of the unanimous court decided at:
(25) This court has resisted schemes that purport to create “private” enclaves immune to 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 at paras 45-47.
(27) The Milk Act makes no exception for “private” operations.
[20] As Justice McKay found in Salverda v Ontario (Ministry of Agriculture, Food and Rural Affairs), 2022 O.J. No 6208:
(16) Most problematic for Mr. Salverda’s argument is the decision in R v. Schmidt 2014 ONCA 188, a decision of the Court of Appeal for Ontario reported at 119 O.R. (3d) 145.
(17) In that case the court found that the Milk Act did not violate the principles of section 7 of the Charter. In addition, section 27 of the decision reads as follows: For similar reasons, I cannot accept the appellant’s submission that the Milk Act licence requirement does not apply to the appellant’s operation. The Milk Act makes no exception for “private” operations.
(18) In this case the trial court rejected Mr. Salverda’s contention that he was engaged in a private operation, finding it to be public. Even if it were private, the Ontario Court of Appeal has ruled that there are no exceptions for private operations.
[21] The Defendant then brought an application for leave to appeal Justice McKay’s decision to the Ontario Court of Appeal. Justice Pardu in R v Salverda, 2023 O.J. No 3221, dismissed the leave application because there was no prospect that the appeal would succeed. Justice Pardu recognized that the Defendant was asking for a constitutional exemption from the application of the act:
(5) While the moving party disavows any challenge to the constitutionality of the Milk Act, he is, in substance, asking for a constitutional exemption from the application of the relevant provisions. He raises the issue of constitutional applicability of the Milk Act to him, a claim that requires a Notice of Constitutional Question to be served upon the Attorney Generals of Canada and Ontario: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 109(1). This would be a sufficient basis to dismiss the motion for leave to appeal: Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241.
(6) The moving party’s argument that he need not comply with the Milk Act is, in any event, foreclosed by this court’s decision in R. v Schmidt, 2014 ONCA 188, 119 O.R. (3d) 145. There is no constitutional right to sell unpasteurized milk products. There is no prospect that the proposed appeal will succeed.
[22] The Defendant then brought an application for leave to appeal Justice Pardu’s decision to the Supreme Court of Canada. On March 1, 2024, the Supreme Court of Canada dismissed the leave application without reasons: Salverda v Ontario (Ministry of Agriculture, Food and Rural Affairs), 2023 S.C.C.A. No. 460. The only conclusion that can be reached in all of these circumstances, is that Schmidt is the applicable law. There is no exemption for private operations to the provisions of the Milk Act requiring a licence. There is no constitutional right to sell unpasteurized milk products.
[23] With respect to the issue whether there is a potential violation of the Defendant’s s. 7 Charter rights, the issue again was addressed and decided in Schmidt. The Ontario Court of Appeal in Schmidt rejected the argument that the “security of the person” was violated see paras 34-36.
[24] The Ontario Court of Appeal in Schmidt also rejected the argument that the right to “liberty” was violated see paras 37-44.
(38) …the proposition that s. 7 protects freedom of contract or the right to engage in the economic activity of one’s choice has been rejected. In Siemens v. Manitoba (Attorney General), 2023 SCC 3 at para 46, the Supreme Court of Canada held the “the ability to generate business revenue by one’s chosen means is not a right protected under s. 7 of the Charter”…
(39) I agree with the respondent that the appellant’s argument that the Ontario Human Rights Code, s. 3 recognizing the right to contract on equal terms without discrimination on enumerated grounds, does not create a free standing right to freedom of contract.
(40) I also agree with the respondent that 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] 3 S.C.R. 844 at para 66. In my view, the appellant’s argument to the contrary cannot be accepted in the face of the holding in R. v. Malmo-Levine, 2003 SCC 74 at para 86, that “the Constitution cannot be stretched to afford protection to whatever activity an individual chooses to define as central to his or her lifestyle.” Lifestyle choices as to food or substances to be consumed do not attract Charter protection as “[a] society that extended constitutional protection to any and all such lifestyles would be ungovernable.” Such choices, held the court, citing Godbout at para 66, are not “basic choices going to the core of what it means to enjoy individual dignity and independence”.
(43) The statutory terms of probation (Provincial Offences Act, R.S.O. 1990 c. P.33 s. 72(2)) – that the Defendant not commit the same or any related or similar offence, or any offence that is punishable by imprisonment; appear before the court as and when required and notify the court of any change in the Defendant’s address – do not have a significant impact on the Defendant’s liberty.
[25] The Ontario Court of Appeal in Schmidt found that there was no violation of s. 7 and dismissed the appeal.
[26] The Defendant is clearly passionate with his views and strongly believes he ought to be allowed to own a plant that produces raw milk and then sell it to customers who willingly purchase the products. I allowed the Defendant to read the written “Arguments of the Defendant” into the record. I have also carefully reviewed the written submissions again. They will be marked as an exhibit.
[27] The “Arguments of the Defendant” were more akin to a scholastic paper or an essay with an attempt to substantiate a thesis or dissertation. There are numerous references to “legal maxims”. I do not intend to reference all of them, nor to comment on them, as they were not relevant nor were they persuasive, but simply cite one: “that which natural reason has established among all men is called ‘the law of nations’.” There were references to American caselaw. Again, I do not intend to reference all of them, nor to comment on them, as they were not relevant nor were they persuasive. For example, Hale v Henkel, 201 U.S. 43 (1906) in which the US Supreme Court held that corporations do not enjoy the 5th amendment right being the right not to incriminate. There were references to Canadian cases and phrases were taken out of context from caselaw. Again, I do not intend to reference all of them, nor comment on them, as they were not relevant nor persuasive. For example, Campbell Motors Ltd. v Gordon et al (no citation was provided) wherein there are quotes about “inalienable rights”. There was also a copy of a newspaper article about the late Queen Elizabeth and her relationship with raw milk, as well as a copy of a speech Supreme Court of Canada Chief Justice Beverley McLachlin gave in December 2005, at the Lord Cooke Lecture in Wellington, New Zealand, neither of which enhanced his argument.
[28] Cumulatively, these maxims, articles, and references to caselaw, do not advance any argument that there is a violation of s. 7 of the Charter. I reject the Defendant’s arguments. There is no violation of s. 7 Charter rights. I am bound by and accept and adopt the reasons of the Ontario Court of Appeal in Schmidt. The Defendant’s Charter application is dismissed.
CONCLUSION
[29] To use the words of Justice Sharpe in Schmidt, I find the Defendant’s affairs as “George the Milkman” is a “scheme that purports to create (a) ‘private’ enclave” and is an attempt to avoid the provisions of the Milk Act and the obligation to have a licence to operate a plant. There is no exemption for private operations under the Milk Act. There is no constitutional exemption. The Milk Act applies to the Defendant’s affairs. There is no violation of the Defendant’s s. 7 Charter rights. There is no constitutional right to sell unpasteurized milk. The Charter application is dismissed.
[30] I therefore find the Defendant guilty of the offence of operating a milk plant without a licence contrary to s. 15(1) of the Milk Act. I also find the Defendant guilty of the offence of breach of probation contrary to s. 75 of the Provincial Offences Act. Convictions for both offences will register.
Released: March 24, 2025
Signed: Justice of the Peace Anna M Hampson