“Most Canadians think of their country as a progressive nation infused with values of tolerance and understanding. Canadians pride themselves on being less dogmatic than their American counterparts and routinely point to the liberal attitude towards social issues such as gay marriage and drug legalization (or at least decriminalization). Yet, just the other day, the state descended upon a Canadian who had the temerity to sell his product to consenting adults who knowingly choose to consume it despite the state’s admonition that it is dangerous.
In fact, raw (unpasteurized) milk is so dangerous that the state has been waging a regulatory crusade against many farmers whose only sin is to supply consumers with a product that they believe is healthier and tastier than what the state decrees we can consume.
The growing number of Canadians who for culinary or health reasons choose to consume raw milk has grown to over a quarter of a million, according to one estimate and there is no sign that this number will fall. Yet, unlike marijuana, gambling, and to a lesser extent prostitution, there has been no significant political support for decriminalizing or legalizing the production and sale of raw milk.
When the issue is abortion and reproductive rights, the left loudly bandies the catchy slogan “a woman’s right to choose.” When the issue is drugs, the voices of decriminalization and legalization toss around arguments proclaiming the victimless nature of the act. Advocates of drug legalization point to the consenting nature of the transaction and the growing acceptance and usage of drugs that fuels the demand, which leads to the futility of the war on drugs. Even when the issue is violent crime, the left decries any efforts to increase sentences for violent offenders on the grounds that harsher sentences do not reduce crime. When the issue is not social but rather economic in nature, however, the amen corner of choice goes silent.
Yet choice is what is fundamentally at stake here. The federal, provincial and municipal governments encouraged by the mainstream milk producers have been consistently pursuing these dairy farmers who dare to give consumers what they really want. The state warns us that raw milk can transmit E. coli, listeria and other nefarious germs that could adversely affect our health.
The same state, of course, has repeatedly failed Canadians when it comes to ensuring our health and safety. The most recent fatal outbreak of listeriosis across Canada contrasted with the lack of any major infectious outbreaks resulting from underground raw milk consumption is significant, if not ironic.
At some point we ought to recognize the failure of the regulatory apparatus to carry out its stated mission. Canadians should, therefore, just as they have come around to question the morality and efficacy of drug prohibition, come around to question the various regulatory prohibiitons that plague this nation.
More importantly, the courts should take notice of the failure of the regulatory state to secure our lives. The Supreme Court took the lead in Chaoulli v Quebec (Attorney General),  1 S.C.R. 79, the now landmark case recognizing the failure of the state’s stated goals of delivering adequete healthcare by prohibiting private insurance. In their concurrence, the Chief Justice and Justice Major critically scrutinized the bona fides of the state’s claim that the prohibition of private insurance was necessary to deliver quality public health care.
This exacting scrutiny must be extended elsewhere. Once upon a time, American courts engaged in such scrutiny when state regulation was challenged. The American courts relied on the language contained in their Fourteenth Amendment stating that “nor shall any State deprive any person of life, liberty or property, without due process of law” to scrutinize all sorts of legislation emanating from the states (there was less federal legislation back then).
If anything, the language of s. 7 of the Charter is stronger. Section 7 affirmatively gives everyone the right to “life, liberty and security of the person” and the right not to be deprived of these rights “except in accordance with the principles of fundamental justice”.
When it comes to raw milk, the evidence is on the farmers’ side. The state, in the face of its numerous and catastrophic failures to adequetely secure our lives cannot claim that its legislation prohibiting the distribution of raw milk saves lives. When thousands of Canadians have been resorting to the underground market for raw milk to satisfy their taste buds and perceived health needs with no deleterious results, the claim that raw milk is a health hazard is belied. Indeed, if the state wished to keep us healthy, more rational methods of achieving its goal would range from requiring warnings that the milk being sold is unpasteurized to mandatory testing for the presence of the harmful bacteria, as opposed to outright prohibition.”
The author, Moin Yahya, is an associate professor of law at the University of Alberta
Contact the original publisher of this story at “tlw at lexisnexis dot ca”
This article originally appeared in the Nov. 7, 2008, issue of The Lawyers Weekly published by LexisNexis Canada Inc