NEWMARKET — A decision last month in a Newmarket court to dismiss 19 charges against Michael Schmidt was a significant step in the Durham-area organic farmer and raw milk advocate’s efforts — dating back to 1994 — to challenge the constitutionality of Ontario’s ban on unpasteurized milk.

But Schmidt has been quick to point out that the Jan. 21 ruling by Justice of the Peace Paul Kowarsky is a very narrow victory. He argues it doesn’t legalize the sale of raw milk to the public. Rather, it sanctions the sale of raw milk to a small group of people in a private cooperative.

“The judge didn’t legalize the sale of raw milk. It was a very specific operation,” said Schmidt during a recent interview.

Still, he warns the floodgates have been opened to people who want to follow his example — but may not be as diligent in protecting their product.

Schmidt says he has no plans to expand his operation, despite a sudden flood of applications for new membership in his raw milk cooperative. The cow share plan has about 200 members and Schmidt said that number could easily be doubled.

“These are all new people,” he said of the recent membership applicants.

Under the cow share cooperative, members paid $300 for ownership of a quarter of a cow for six years, plus $2-$2.15 per litre for milk, along with other raw milk dairy products: cream, quark, and cheese. His raw milk products are sold to cowshare members at the farm in Durham, or from his mobile “Blue Bus” in York Region near Toronto.

He currently has 42 milking cows of the Canadienne breed, which produce less milk than more common modern Ontario breeds like Holstein and Brown Swiss, but are prized for the high butter fat content of their milk and their ability to convert pasture.

After Ministry of Natural Resources officers raided his farm in late 2006, Schmidt was charged with breaching public health regulations, under the Ontario Milk Act and Health Protection Act. During his trial, Schmidt contested his guilt both under the current legislation and the constitutional validity of the legislation itself. He argued that the ban on raw milk sales violates the guarantee of “life, liberty and security of the person” in the Canadian Charter of Rights and Freedoms. He also argued the ban violates the Charter’s equality and non-discrimination rights.

Although Schmidt’s federal Charter of Rights and Freedoms application — made during a six-day trial that ended in February 2009 — won’t proceed due to Kowarsky’s findings, the Canadian Constitution Foundation (CCF) continues to assist Schmidt in his constitutional challenge.

In a media release following Schmidt’s recent legal victory, a spokesperson for the CCF said consumers who want freedom of choice expect their government to make the transition to the 21st century and respect their rights.

The legislation banning the sale or giving away of raw milk to the public is more than 70 years old.

Schmidt says, for now, the constitutional challenge is on the back burner unless there’s an appeal of the recent court decision. In the meantime, Schmidt plans to take his case for change to the Ontario legislature.

“We’re definitely working with the (Progressive) Conservatives because they were the only (party) which had an open mind to deal with this issue. I’m trying to meet with them,” he said.

“There’s no sense in pushing this underground. It’s not going away . . . when you hear Hazel Lynn, there is no other way and when you look at Europe — how many countries have legalized raw milk,” he added.

Schmidt noted that the recent ruling is now case law and opens the door for others to start up similar cooperative ventures. He would like to see a system of accreditation for raw milk producers that includes standardization and testing procedures.

“I want to present that to the government before they think they have to appeal . . . I would rather see government-approved guidelines. That’s how we can move forward.”

Schmidt would like to see the Dairy Farmers of Ontario — the agency that regulates milk sales in Ontario — sanction the public sale of raw milk as a niche market and establish guidelines and testing regimes, as it has done for other small on-farm commercial operations such yogurt making.

“It’s all fine and dandy to celebrate our legal victory but it opens the door for an unregulated market without guidelines. It’s not that I’m asking for more regulations. I’m asking for guidelines. I have no problem if a licensed dairy inspector would come into my premises and do inspections,” he said.

Schmidt met on Saturday, Jan. 30 with the Independent Dairy Producers of Ontario — whom he described as disgruntled former dairy farmers and very disgruntled cream producers, some of whom are involved in the underground raw milk movement.

“I think there is an incredible, flourishing underground market,” said Schmidt.

After that, he planned to travel to Vancouver in time to be in court on Monday, Feb. 1 with Alice Jongerden and Gordon Watson of Home on the Range, a cowshare dairy operation in Chilliwack B.C. In that case, the local health unit is seeking a permanent injunction against the 350-member co-op. Home on the Range was handed a cease and desist order by two health authorities in December, with authorities forcing depots to dump bottles of its milk and giving dire warning for owners if they handled the product ever again.